Last week, a three-judge panel of the 9th Circuit Court of Appeals threw out Seattle’s restrictions on telephone directories, finding that the books deserve full First Amendment protection under the Constitution.
While a blow to a city striving to reach Zero Waste, the decision was not unexpected by some of us who have worried that the 2010 legislation went too far in its restraints on publication.
First a little history: In 2010, the Seattle City Council adopted restrictions meant to curtail the distribution of yellow pages (publications consisting of lists of business names and telephone numbers and advertising for those businesses). The rationale for allowing homeowners to “opt-out” (i.e. ban delivery) was that the bulky books inevitably ended up in the city’s solid waste stream. If you didn’t want yellow pages, you simply added your name to the Stop Phone Books list. In addition, the initial legislation required a $148 a ton charge to yellow page publishers and a 14-cent per book recycling fee. The tonnage charge was ultimately dropped.
From the beginning, I had major concerns that the proposal possibly violated the First Amendment to the U.S. Constitution. The First Amendment has an incredible history as part of our nation’s dedication to civil liberties. It was included originally as arguably the most important element of the Bill of Rights. Sentiment for it dates from the days when George III of England taxed printers to publish. The much-despised Stamp Act – which required print materials to be produced on stamped paper made in England – was one of the root causes of the Revolutionary War (“no taxation without representation”).
Ever since, the First Amendment has been used to protect our rights to publish, speak, worship and assemble. It was the basis for vindication of the New York Times and Washington Post after those papers published the Pentagon Papers. It protected Larry Flint when he satirized Jerry Falwell.
The defining principle is that the government does not have the right to place prior restraints on publication. It is true that commercial speech (e.g. a billboard) does not have the same broad protection as noncommercial speech; however, court precedent has held it necessary to consider a publication “non-commercial” when it contains both commercial and non-commercial speech.
Writing for the unanimous Circuit Court panel, Judge Richard R. Clifton pointed out that inclusion of commercial material in newspapers, magazines and TV shows does not support treating those media with less-than-full First Amendment protection. He wrote: “The First Amendment does not make protection contingent on the perceived value of certain speech.”
I didn’t have a crystal ball when I voted against the yellow pages restriction in 2010. (It passed easily with an 8-1 vote.) Casting a dissenting vote was never an easy position for me, particularly when I was in full support of the aim of reducing waste.
But, despite wanting to keep unwanted phone books out of the waste cycle, I do become uneasy when the First Amendment is seen as an impediment or hindrance to our aims, no matter how lofty those aims are. We must be conscious of the need to give great weight to free speech protections, especially when it is inconvenient to do so. It is a slippery slope when we erode these protections, even if the change seems small or trivial at the time.
I spent the bulk of my career working at newspapers that relied on the First Amendment. The papers also depended on commercial content to pay for salaries, newsprint and ink. For that reason, I tend to leap to the defense of others who rely on the printed word to make their living. The First Amendment does not require that protection depend on the worthiness of certain speech. And, since I often dabbled in satire, I am grateful for that distinction. I may not agree with what you say, but I believe in your right to say it.
Where does the 9th Circuit judgment leave us? The decision, if not appealed, will probably go back to the original federal court for resolution. And, unfortunately, it may undo some of the good things – the savings in waste – that the well-intentioned legislation accomplished. And I, along with those who voted for the law, will share those regrets.