Monday, October 15, 2012

Dex Media West v. Seattle (9th Cir. - Oct. 15, 2012)

I can agree with most of this.  Except the last three paragraphs.

Seattle decides to save some trees.  Shocking, I know.  Every year, its citizens receive 1300 tons of printed phone books dropped off at their doorstep.  Many of which are promptly put in the trashcan promptly upon their receipt; indeed, given the internet, increasingly so.  Seattle decides that this is a needless waste.  Especially since Seattle itself ends up spending a couple of hundred thousand dollars a year just to deal with this rubbish.

So it passes a law that creates an "opt-out" list for phone directories, and requires that publishers of these products adhere to it.  Sort of like the "do not call" list for telemarketers.  If you don't want to participate in needless tree-killing, you can put yourself on the list and you won't get unwanted phone books delivered to your doorstep.  Problem solved.

You'd think that publishers of the Yellow Pages and the like would be happy with that.  After all, it reduces their cost to publish directories that are just going to be thrown away.

But you'd be wrong.  Instead, they sue.

Yellow Pages makes their money by selling advertisements, and want to tell advertisers that they get X number of eyeballs.  An effective opt-out list would make X -- and hence the publisher's profits -- smaller.  They don't like that.

So they insist they have a First Amendment right to drop off leaflets at the doorsteps of citizens who don't want them.  Even if the leaflets are -- like the 2010 Seattle Dex Metro business directory -- total a whopping 1,344 pages.  They say the First Amendment precludes Seattle from regulating this type of speech, even if the statute only creates an opt-out list.

Today, the Ninth Circuit agrees with them.  Reversing the district court.

The vast majority of Judge Clifton's opinion -- over 90% -- deals with whether the Yellow Pages (and its ilk) are pure "commercial speech" or not.  This is a difficult issue.  It's also one that I think Judge Clifton gets right.

You might think (like the district court) that the Yellow Pages clearly entail commercial speech because that's the whole point of the thing:  to make money.  But that's not the test; after all, most newspapers and magazines and publishing companies are for-profit entities, and that doesn't stop them from being subject to "regular" speech protection.  And, yes, I know, unlike the Washington Post or New York Times, it's not like the Yellow Pages have anything important to contribute to our nation's dialogue on important political issues.  But that too isn't how we judge whether or not a given publication is pure commercial speech.  Otherwise the National Enquirer -- with its stories of alien babies and/or Lindsay Lohan's latest adventure -- might not qualify either.  Nope, instead, we look to see whether there's something more than mere advertisements in the thing.  And the Yellow Pages do indeed have other things.  The majority of the contents therein are not advertisements, but instead are recitations of phone numbers.  That's classic "speech" and an (arguable) public service.  And, yes, I know:  in truth, the Yellow Pages are just a bunch of high-priced advertisements sandwiched between meaningless drivel that no one wants -- the "public speech" part of it is just an excuse to sell ads.  But the same might well be said for Vanity Fair.

So I agree with Judge Clifton that the Yellow Pages isn't pure commercial speech and hence subject to reduced First Amendment protection.  Mind you, I think that existing commercial speech doctrine is a hopeless morass, and fails to appreciate the critical difference between "core" and non-core speech (and ancillary concerns about the role of money and profits in this market) in a coherent fashion.  But that's not Judge Clifton's fault; it's the Supreme Court's.  He's tasked with applying those precedents to the case and hand, and he does so.  Correctly, in my view.

But where Judge Clifton falls off the rails, I think, is in how he then applies the relevant standards to the statute at issue here.

Since we're not dealing with solely commercial speech, the usual free speech rules apply.  But I think the statute here satisfies these admittedly stringent requirements.

The only argument that Judge Clifton makes on this last point -- after spending pages and pages on the commercial speech issue -- is a three-paragraph contention in which he says that the statute does not pass constitutional scrutiny because it's not narrowly tailored enough.  He says that since each of the companies has their own opt-out program, enforcement of those existing private regimes "could achieve precisely the same goals as the City's registry."

I disagree.  For the exact same reasons that I'd hold that the national do-not call list similarly does not violate the First Amendment.

Yes, in theory, it's possible for consumers to individually opt out of each and every unwanted Yellow Pages that come to their doorstep.  Just like it might well be possible for me and other consumers to individually contact each and every telemarketer instead of signing the national do-not-call registry.

But guess what?  People don't do that.  It's too much trouble.  It's not worth it.  It makes much more sense -- is undeniably much more effective -- to create a centralized program where you can sign out of any (or all) of the unwanted distributions by submitting a single form.  Want proof?  Look at the size of the national do-not-call list.  Much, much larger -- orders of magnitudes larger -- than the number of people who previously opted out pursuant to individual private company opt-out lists.  Or, for another metric, just look at the amount of money that the plaintiff here is spending on legal fees to challenge the program.  Think they're doing that because they're convinced that there will be no difference between the number of people who already opt-out on their private list will be the same as on the central Seattle list?  No way.  They know full well more people will opt out pursuant to a central registry.  Judge Clifton's assertion that enforcement of the existing private regime would solve the problem is, in my view, simply false, and ignores the reality of the marketplace and the behavior of individual consumers.  Especially since the private companies have an incentive to minimize opt-outs (e.g., by making it difficult or by not publicizing the option) whereas the statute has the exact opposite effect (e.g., by requiring that Yellow Pages publicize the opt-out on the front page).

One of these regimes will work.  The other won't.  The existence of the latter doesn't make the former insufficiently tailored and hence unconstitutional.

Plus, don't forget what we're talking about here.  Books that are indisputably not wanted; indeed, texts that will almost uniformly be immediately deposited in the trash.  I recognize, of course, that even speech that's unpopular may have some value; sometimes people need to have their opinions challenged, even if it's on a street corner.  But the speech here is not only unwanted, but is generally unheard as well; the books typically get dumped into the trash unopened, at least by the only group that's relevant here (i.e., the people who will opt out under the statute).  I'm just not at all sure there's a valid First Amendment principle that says that hundreds of thousands of trees have to die just so a consumer can be compelled to pick up 1,344 pages of trash in his driveway (i.e., a Yellow Pages) that we know in advance she doesn't want and move it to the trash can.  Nor am I persuaded that a city like Seattle can't have a valid, legitimate governmental concern about the consequences of such a practice on the environment, on consumers and on the cost (and operation) of the City's landfill.

So I'd have remanded this back to the district court for a second look rather than holding, as the Ninth Circuit does, that the statute "violates the First Amendment and cannot be sustained."  I think there's a strong analogy here to the national do-not-call list.  Moreover, the statute here not only accomplishes the same values as the latter, but also saves money and protects the environment as a bonus.

Those are all are laudable goals.  And goals that aren't accomplished by the alleged private alternative upon which Judge Clifton relies.

I think the statute's probably constitutional.  And I surely think that the district court, on a proper record, could so find.

So mark me down as dissenting from the contrary, unanimous opinion of the Ninth Circuit.