Dex Media West, Inc., et al v. City of Seattle, et al

Filing

FILED OPINION (RICHARD R. CLIFTON, N. RANDY SMITH and EDWARD R. KORMAN) DISMISSED IN PART; REVERSED AND REMANDED. Judge: RRC Authoring, Judge: NRS , Judge: ERK . FILED AND ENTERED JUDGMENT. [8360386] [11-35399, 11-35787]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEX MEDIA WEST, INC.;
SUPERMEDIA LLC; YELLOW PAGES
INTEGRATED MEDIA ASSOCIATION,
DBA Yellow Pages Association,
Plaintiffs-Appellants,
v.
CITY OF SEATTLE; RAY HOFFMAN, in
his official capacity as Director of
Seattle Public Utilities,
Defendants-Appellees.

DEX MEDIA WEST, INC.;
SUPERMEDIA LLC; YELLOW PAGES
INTEGRATED MEDIA ASSOCIATION,
DBA Yellow Pages Association,
Plaintiffs-Appellants,
v.
CITY OF SEATTLE; RAY HOFFMAN, in
his official capacity as Director of
Seattle Public Utilities,
Defendants-Appellees.




No. 11-35399
D.C. No.
2:10-cv-01857-JLR





No. 11-35787
D.C. No.
2:10-cv-01857-JLR
OPINION



Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
February 9, 2012—Pasadena, California
Filed October 15, 2012
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DEX MEDIA WEST, INC. v. SEATTLE

Before: Richard R. Clifton and N. Randy Smith,
Circuit Judges, and Edward R. Korman,
Senior District Judge.*
Opinion by Judge Clifton

*The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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COUNSEL
David J. Burman (argued), Kathleen M. O’Sullivan, and Noah
G. Purcell, Perkins Coie LLP, Seattle, Washington, for the
plaintiffs-appellants.
Jessica L. Goldman (argued), Summit Law Group PLLC,
Seattle, Washington, William Foster and Gregory Narver,
Seattle City Attorney’s Office, Seattle, Washington, for the
defendants-appellees.

OPINION
CLIFTON, Circuit Judge:
The “yellow pages” telephone directory was once a ubiquitous part of American life, found in virtually every household
and office. We were regularly encouraged to let our fingers do
the walking. But times have changed, and today phone books,
like land-line telephones themselves, are not so universally
accepted.
The City of Seattle imposes substantial conditions and costs
on the distribution of yellow pages phone directories. Ordi-

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nance 123427, adopted in 2010, requires publishers of yellow
pages directories to obtain permits and pay a fee for each
directory distributed in the city. It also establishes an opt-out
registry, through which residents can decline to receive directories. The publishers are required by the Ordinance to advertise the availability of the opt-out registry on the front covers
of their directories. The fees paid by the publishers are
intended to cover the cost of operating and promoting the optout registry.
Plaintiffs Dex Media West, Inc., SuperMedia LLC, and the
Yellow Pages Integrated Media Association (the “Yellow
Pages Companies”) challenged the validity of the Ordinance.
The challenge is based primarily on the First Amendment of
the United States Constitution, but the plaintiffs also present
arguments based on the Commerce Clause of the Constitution
and on the Washington State Constitution and statutes.
The district court rejected the plaintiffs’ challenge and
granted summary judgment in favor of the defendants, allowing the Ordinance to stand. The district court reasoned that the
directories represented “commercial speech,” which benefits
from less protection under the First Amendment. The plaintiffs appeal.
We conclude that the yellow pages directories qualify for
full protection under the First Amendment. Although portions
of the directories are obviously commercial in nature, the
books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment. As a result, when we evaluate the Ordinance under
strict scrutiny, it does not survive. Accordingly, we reverse
the district court’s entry of summary judgment in favor of the
defendants and remand for the entry of judgment in favor of
the plaintiffs.

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I.

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Factual Background
A.

Yellow Pages

The State of Washington requires telephone companies
(“local exchange carriers” or “LECs”) to publish and distribute residential listings, business listings, and certain consumer
information for each customer in the local exchange. Wash.
Admin. Code § 480-120-251. Local telephone companies
often contract with publishers to satisfy this requirement by
producing yellow pages directories.
The contents of phone books generally fall into three categories: (1) business “white pages” sections, which provide
names, addresses, and phone numbers of local businesses and
professionals in alphabetical order; (2) traditional yellow
pages, which list businesses by category of product or service;
and (3) public interest material, which includes community
information, maps, and government listings. In large cities,
the directories are sometimes divided into multiple volumes.
Paid advertising is mixed in with the listings. It typically
constitutes less than half of the content in the yellow pages.
For example, the 2010 Dex Seattle Metro business directory
contained 1,344 pages. Of those, 96 were community pages,
404 were business “white pages,” and 844 were business “yellow pages.” Display advertising comprised about 35% of the
2010 Dex Seattle Metro yellow pages.
Users consult phone books for a number of reasons, including finding business, government, and personal telephone
numbers and addresses, identifying businesses that provide a
desired service or good, comparing goods and services available from multiple sellers, and learning about local telephone
service and the community. Customers receive the directories
free of charge.
The City estimates that yellow pages generate 1300 tons of
waste each year, costing the municipality $190,000 annually.

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B.

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Ordinance 123427

Between June and October 2010, the City Council heard
testimony from residents who were frustrated with the delivery of unwanted yellow pages to their homes. Dex and SuperMedia offered their own opt-out programs that they contended
had low error rates, but numerous residents asserted that their
requests to opt out through the private systems went
unheeded. Those residents complained that the unwanted
deliveries violated their right to privacy and generated large
amounts of waste.
In response, in October 2010, the City enacted Ordinance
123427, which bans the distribution of “yellow pages phone
books” in Seattle unless telephone book publishers meet certain conditions. Seattle Mun. Code § 6.255 (2010); see also
Seattle Ordinance 123427 (Oct. 14, 2010) (Preamble)
(describing the three purposes motivating the City to enact the
Ordinance: waste reduction, protection of residents’ privacy
from unwanted intrusions, and recovery of costs incurred to
maintain and enforce the opt-out registry).
The Ordinance created an “Opt-Out Registry . . . for residents and businesses to register and indicate their desire not
to receive delivery of some or all yellow pages phone books.”
Seattle Mun. Code § 6.255.090(A). A publisher who fails to
comply with any part of the Ordinance may be fined or lose
its license. Id. §§ 6.255.130, .140.
Under the Ordinance, phone book publishers must “obtain[ ] an annual yellow pages phone book distributor
license[,] . . . separate from and in addition to . . . the business
license required pursuant to chapter 5.55.” Id. § 6.255.030. To
obtain the license, a publisher must pay a fee and provide
information specified by the Director of Seattle Public Utilities. Id. §§ 6.255.060, .080(B). Publishers must also pay the
City fourteen cents for “each yellow pages phone book distributed within the City.” Id. § 6.255.100(A). Publishers must

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“prominently and conspicuously display on . . . the front
cover of each yellow pages phone book distributed within the
City” and “on their websites” a message mandated by the City
about the City’s program for opting out of receiving phone
books. Id. § 6.255.110. The rule implementing the Ordinance
requires that no less than three square inches of cover space
and twelve square inches inside the books must be devoted to
informing recipients of the City’s opt-out registry.
The Ordinance exempts some publications from its coverage. “Distribution” is defined to exclude delivery of directories by membership organizations to members or others
requesting delivery. Id. § 6.255.025(B). In addition, LECs
who distribute only those phone books required by Washington Administrative Code § 480-120-251 need not comply with
the requirements, meaning that books with residential and
business listings but no “yellow pages” advertising are not
covered by the Ordinance. Seattle Mun. Code § 6.255.035.
II.

Procedural History

On November 15, 2010, the Yellow Pages Companies filed
a complaint in district court against the City of Seattle challenging the Ordinance as unconstitutional. The plaintiffs
moved for summary judgment, and, in the interim, filed a
motion for a preliminary injunction on First Amendment and
Commerce Clause grounds. On May 8, 2011, the district court
denied the motion for preliminary injunction. Dex Media
West, Inc. v. City of Seattle, No. 2:10-cv-01857-JLR, 2011
WL 1869330 (W.D. Wash. May 16, 2011). The plaintiffs
appealed the denial of a preliminary injunction, and argument
was held on an expedited basis before this panel on July 13,
2011.
Shortly before the argument date, on June 28, 2011, the district court granted summary judgment in favor of the City on
the Yellow Pages Companies’ claims under the First Amendment and the Commerce Clause. Dex Media West, Inc. v. City

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of Seattle, 793 F. Supp. 2d 1213, 1218-19 (W.D. Wash.
2011). First, the district court held that yellow pages phone
books are commercial speech entitled to intermediate scrutiny
under the First Amendment. Id. at 1221-23. The district court
considered the three factors outlined in Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 65 (1983) — an advertising
format, reference to a specific product, and economic motivation for publication — and concluded that these factors, as
well as common sense, led to a conclusion of commercial
speech. Dex Media, 793 F. Supp. 2d at 1221-23.
The district court also concluded that the commercial
speech was not inextricably intertwined with noncommercial
speech. Citing Riley v. National Federation of the Blind of
North Carolina, 487 U.S. 781 (1988), and Board of Trustees
of State University of New York v. Fox, 492 U.S. 469 (1989),
the court found that “nothing in the City’s Ordinance nor in
the nature of these directories requires that their noncommercial aspects, such as maps, listings, and street guides, be combined with advertising.” Dex Media, 793 F. Supp. 2d at 122324. The court dismissed any likening to newspapers as “a
stretch too far for this court,” as “newspapers have played an
historic role in our democracy as conveyers of individual
ideas and opinions.” Id. at 1225 (internal quotations omitted).
Therefore, the publication of noncommercial speech alongside commercial speech did not entitle the yellow pages
phone books to full First Amendment protection.
The district court next evaluated the Ordinance under the
test for intermediate scrutiny outlined in Central Hudson Gas
& Electric Corp. v. Public Service Commission of New York,
447 U.S. 557, 566 (1980). The court held that the Ordinance
survived scrutiny under Central Hudson because (1) the
speech concerns lawful activity that is not misleading; (2) the
government has a substantial interest in waste reduction, resident privacy, and cost recovery; and (3) the City showed a
reasonable fit between its means and ends. Dex Media, 793 F.
Supp. 2d at 1226-30. The court concluded that Ordinance pro-

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vided “more than ineffective or remote support” for the City’s
interests. Id. at 1227. The district court noted that the City
considered opt-out legislation in response to specific resident
complaints, and that the City did not have to legislate so as
to wholly eliminate a problem it identified. Id. at 1229. The
district court also held that the Ordinance did not violate the
Commerce Clause. Id. at 1232-35.
At oral argument before this panel on July 13, 2011, and in
supplemental submissions filed at the court’s request thereafter, the parties discussed the impact of the district court’s
order and the likelihood that the district court would soon
enter a final judgment, effectively mooting the appeal of the
preliminary injunction denial.
On September 16, 2011, the district court granted summary
judgment in favor of the City on the Yellow Pages Companies’ remaining claims, which involved Washington state law.
Dex Media West, Inc. v. City of Seattle, No. 2:10-cv-01857JLR, 2011 WL 4352121 (W.D. Wash. Sept. 16, 2011). The
district court entered a final judgment on that date, and the
Yellow Pages Companies appealed from that judgment.
Because the district court ruled on summary judgment before
this court reached a decision on the preliminary injunction,
and the Yellow Pages Companies also appealed the final
judgment to this court, the appeals have been consolidated.1
III.

Discussion

We review de novo the district court’s ruling on summary
judgment. City of Los Angeles v. San Pedro Boat Works, 635
F.3d 440, 446 (9th Cir. 2011).
1

Because we now rule on the merits of the case, deciding the preliminary injunction appeal would have no practical consequences. See Mt.
Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992).
Accordingly, we dismiss the appeal of the preliminary injunction as moot.

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A.

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Yellow Pages Phone Books are Noncommercial Speech

The First Amendment affords protection to both commercial and noncommercial speech. See Bigelow v. Virginia, 421
U.S. 809, 818 (1975). The strength of that protection, however, depends on how that speech is classified. We evaluate
content-based restrictions on noncommercial speech under
strict scrutiny.2 See Berger v. City of Seattle, 569 F.3d 1029,
1050 (9th Cir. 2009) (en banc). We analyze similar restrictions on commercial speech under a more lenient standard, as
set forth in Central Hudson Gas & Electric Corp. v. Public
Service Commission of New York, 447 U.S. 557, 566 (1980).
Neither party disputes that the Ordinance is a content-based
restriction — it regulates only yellow pages directories. See
Berger, 569 F.3d at 1051 (“A regulation is content-based if
. . . , by its very terms, [it] singles out particular content for
differential treatment.”). We must determine, therefore,
whether yellow pages phone books constitute commercial or
noncommercial speech.
[1] It is readily apparent that many of the advertisements
contained in yellow pages directories fit within our “core
notion of commercial speech,” meaning “speech which does
‘no more than propose a commercial transaction.’ ” Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983) (quoting
Va. Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S.
748, 762 (1976)); see also Hunt v. City of Los Angeles, 638
F.3d 703, 715 (9th Cir. 2011).
[2] However, the Ordinance regulates a yellow pages
2

Some content-based restrictions do not warrant strict scrutiny, if they
regulate speech that “falls into one of the ‘well-defined and narrowly limited classes of speech’ that is unprotected by the First Amendment.”
United States v. Alvarez, 638 F.3d 666, 667 (9th Cir. 2011) (quoting
United States v. Stevens, 130 S. Ct. 1577, 1584 (2010)). The speech at
issue here does not fall into any of the unprotected categories.

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phone book as a whole, not simply the individual advertisements contained therein. It is just as readily apparent that telephone listings and community information contained in the
directory constitute noncommercial speech. See City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993)
(“[I]t is clear that much of the material in ordinary newspapers is commercial speech and, conversely, that the editorial
content in respondents’ . . . publications is not what we have
described as ‘core’ commercial speech.”). Although some
people now turn to the internet or other sources to find what
they are looking for, many still turn to the phone book to find
useful information. As noted above, the State of Washington
requires phone companies to provide directories to their customers, demonstrating that the directories serve more than a
commercial purpose.
Because the phone books contain components of both commercial and noncommercial speech, we must consider how
they are to be evaluated by analyzing “the nature of the
speech taken as a whole” to determine what level of First
Amendment protection the yellow pages directories receive.
See Riley v. Nat’l Fed’n of the Blind of N.C., 487 U.S. 781,
796 (1988).
[3] When analyzing mixed-content publications, Supreme
Court precedent seems to outline a two-step analysis for
determining whether the publication deserves full First
Amendment protection. First, courts must determine as a
threshold matter if a publication as a whole constitutes commercial speech. This determination is made either (1) under
the traditional test from Virginia Pharmacy, because the
speech “does no more than propose a commercial transaction,” 425 U.S. at 762; or, (2) in “close question[s],” because
the publication reflects other characteristics, such as the factors identified by the Supreme Court in Bolger. Hunt, 638
F.3d at 715 (citing Bolger, 463 U.S. at 66-67). The factors
identified in Bolger include “three characteristics which, in
combination, support[ ]” a conclusion that the document “at

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issue constitute[s] commercial speech, including (i) their
advertising format, (ii) their reference to a specific product,
and (iii) the underlying economic motive of the speaker.”
Assoc. of Nat’l Advertisers, Inc. v. Lungren, 44 F.3d 726, 728
(9th Cir. 1994). The Court made clear that these three factors
are not dispositive, but the “combination of all these characteristics . . . provides strong support for the . . . conclusion
that the [publication at issue is] properly characterized as
commercial speech.” Bolger, 463 U.S. at 67.
[4] Second, even if the publication meets this threshold
commercial speech classification, courts must determine
whether the speech still receives full First Amendment protection, because the commercial aspects of the speech are “inextricably intertwined” with otherwise fully protected speech,
such that the publication sheds its commercial character and
becomes fully protected speech. See, e.g., Riley, 487 U.S. at
796. As the Court explained in Riley, speech that “in the
abstract is indeed merely ‘commercial’ ” does not “retain[ ]
its commercial character when it is inextricably intertwined
with otherwise fully protected speech.” Id. at 796 (emphasis
added) (internal quotation marks omitted). In other words, the
inextricably intertwined test operates as a narrow exception to
the general principle that speech meeting the Bolger factors
will be treated as commercial speech.
The Supreme Court seemed to utilize this two-step analysis
in Riley and Board of Trustees of State University of New
York v. Fox, 492 U.S. 469 (1989). In Riley, the Court considered a North Carolina statute which restricted the charitable
solicitation activities of professional fundraisers. The Court
first noted that “[i]t is not clear that a professional’s speech
is necessarily commercial whenever it relates to that person’s
financial motivation for speaking.” Id. at 795. It then assumed
without deciding that the speech was “merely ‘commercial’ ”
as a whole. Id. at 796. Only after making that assumption did
the Court analyze the speech under the “inextricably intertwined” test. Id. The Court’s analysis in Riley makes clear that

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the speech at issue must have already gained commercial
character before an “inextricable intertwin[ing]” analysis is
necessary to determine if the speech “retain[s] its commercial
character;” to retain some character, speech must have held
that character initially. See id.
Similarly, in Fox, the Court addressed the “first question”
of whether the “principal type of expression at issue is commercial speech.” Fox, 492 U.S. at 473-74. The regulation at
issue prohibited the operation of commercial enterprises on
state university grounds. Id. at 471-72. The university invoked
the regulation in order to bar a company from selling housewares at a variant on a “Tupperware party” in a student dormitory. Id. at 472. In addition to pitching the company’s
products, the party host also discussed home economics topics. Id. at 473-74. The Court determined that there was “no
doubt” that the houseware parties were held merely to “propose a commercial transaction.” Id. at 473. The Court also
noted that the home economics speech “link[ed] a product,”
specifically the housewares, to an expressive discussion. Id. at
475. After the Court decided that the speech (as a whole) was
commercial in nature, the Court continued to an inextricably
intertwined analysis. The Court explained that the commercial
and expressive speech were not inextricably intertwined,
because “[n]o law of man or of nature ma[de] it impossible
to sell housewares without teaching home economics.” Id. at
474. Thus, the Court determined that the expression was still
“commercial speech” despite the inclusion of some protected
speech. Id. at 475.
Our Circuit also appeared to utilize this two-step approach
in Hunt v. City of Los Angeles, 638 F.3d 703, 715-16 (9th Cir.
2011). We first noted that the plaintiffs, boardwalk vendors,
“clearly propose a commercial transaction,” because “the core
of [their] speech is directed to their products and why a consumer should buy them.” Id. at 716. Only after making this
determination did we further explain that “any noncommercial aspect of [their] speech is not inextricably intertwined

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with commercial speech,” because the plaintiffs “could easily
sell their wares without reference to any religious, philosophical, and/or ideological element, and they could also express
any noncommercial message without selling these wares.” Id.
Thus, we determined that the mixed-content speech at issue
was commercial as a threshold matter, and it did not shed this
commercial nature through inextricable intertwining.
[5] Under this analytical framework, we conclude that a
yellow pages directory goes beyond the threshold classification of commercial speech. The yellow pages clearly do
“more than propose a commercial transaction.” Virginia
Pharmacy, 425 U.S. at 762. Even assuming this mixedcontent publication constitutes a “close question,” a yellow
pages directory, as a whole, does not fulfill two of the three
Bolger factors. Hunt, 638 F.3d at 715. “Even the most cursory
examination of the [yellow pages directory] reveals that it is
not ‘concededly an advertisement’ and . . . it does not refer
to a specific product.” U.S. Olympic Comm. v. Am. Media,
Inc., 156 F. Supp. 2d 1200, 1207 (D. Colo. 2001) (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 68
(1983)).
[6] There is certainly no clear link between the yellow
pages’ noncommercial speech (community information and
phone listings) and the yellow pages’ commercial speech (a
wide array of advertisements), nor does the noncommercial
speech necessarily reference any of the products in these
advertisements. This publication is “qualitatively different
from an advertising leaflet put forth by an individual merchant to tout only its own products . . . .” Ad World, Inc. v.
Twp. of Doylestown, 672 F.2d 1136, 1140 (3d Cir. 1982)
(emphasis added). Moreover, “[t]here is no evidence that the
editorial content is added as a mere sham to convert a pure
advertising leaflet into noncommercial speech.” Id. at 1139.

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Indeed, paid display advertising makes up less than half of the
content of a typical yellow pages directory.3
Further, the yellow pages are distinguishable from the
advertising publications in Bolger, Riley, or Fox where noncommercial speech was referencing a product. See Bolger,
463 U.S. at 62-63 (where the discussion of family planning
was clearly linked to the advertiser’s promotion of contraceptives in the pamphlet); Riley v. Nat’l Fed’n of the Blind of
N.C., 487 U.S. 781, 795-96 (1988) (where the protected
speech discussing a charity’s mission was related to the charity’s finances); Bd. of Trs. of State Univ. of N.Y. v. Fox, 492
U.S. 469, 474 (1989) (where the protected speech discussing
home economics was related to the selling of housewares).
This analysis is consistent with the consideration of policy
underlying the distinction between the protections afforded
commercial and noncommercial speech. Bolger, 463 U.S. at
65 (internal citation omitted) (“In light of the greater potential
for deception or confusion in the context of certain advertising messages . . . content-based restrictions on commercial
speech may be permissible.”).
The yellow pages directories may only satisfy one Bolger
factor: that the publisher has a commercial motive in publishing the directories. However, under Bolger and other Supreme
Court precedent, economic motive in itself is insufficient to
3
Furthermore, the ordinance here does not by “explicit terms . . . limit
its restrictions to purely commercial speech. S.O.C., Inc. v. Cnty. of Clark,
152 F.3d 1136, 1144 (9th Cir. 1998); cf. Am. Academy of Pain Mngt. v.
Joseph, 353 F.3d 1099, 1106 (9th Cir. 2004) (finding that statute regulated
only commercial speech under Bolger because it “identifies that the object
of its regulation is ‘advertising,’ ” and “[t]he advertising regulated relates
to a specific product”); Lungren, 44 F.3d at 728 (finding that statute regulated only commercial speech under Bolger because “the statute regulates
representations concerning a specific consumer good which take the form
of advertisements or product labels” and “specifically requires that the
representation be made about a specific consumer good which a firm manufactures or distributes”).

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characterize a publication as commercial, as will be discussed
more fully below. Bolger, 463 U.S. at 67 (“[A]n economic
motivation . . . would clearly be insufficient by itself to turn
the materials [in question] into commercial speech.”); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations,
413 U.S. 376, 385 (1973) (“If a newspaper’s profit motive
were determinative, all aspects of its operations–from the
selection of news stories to the choice of editorial position–
would be subject to regulation if it could be established that
they were conducted with a view toward increased sales.”);
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (“That
books, newspapers, and magazines are published and sold for
profit does not prevent them from being a form of expression
whose liberty is safeguarded by the First Amendment.”).
The City would have us disregard the evaluation of the
publication as a whole, arguing that mixed-content publications, or hybrid speech, can only receive full First Amendment protection if the commercial speech is “inextricably
intertwined” with the other speech in the directories. However, such a rule is contradicted by many decisions concluding that various types of mixed-content speech were fully
protected even without engaging in an inextricably intertwined analysis. See Consol. Edison Co. v. Pub. Serv.
Comm’n, 447 U.S. 530 (1980) (concluding that a utility company’s bill containing factual statements on matters such as
the use of nuclear power was fully protected under the First
Amendment because it concerned the ‘arena of public discussion,’ even though the statements could influence consumer’s
choices); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d
315 (S.D.N.Y. 2006) (holding that a book with some commercial references to products and services was not commercial
speech), aff’d, 279 F. App’x 40 (2d Cir. 2008); S.O.C., Inc.
v. Cnty. of Clark, 152 F.3d 1136, 1144 (9th Cir. 1998) (concluding, on a preliminary injunction review, that a publication
with protected speech and commercial advertisements constituted “noncommercial expressive material” without expressly
holding that this mixed-content was “inextricably inter-

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twined”); Commodity Trend Serv., Inc. v. Commodity Futures
Trading Comm’n, 149 F.3d 679 (7th Cir. 1998) (“A speaker’s
publication does not lose its status as protected speech simply
because the speaker advertises the publication. . . . If the
result were otherwise, then even an editorial in The New York
Times would constitute commercial speech because the newspaper seeks subscribers through advertisements.” (citation
omitted)); Sec. & Exch. Comm’n v. Wall St. Publ’g Inst., 851
F.2d 365, 372 (D.C. Cir. 1988) (holding that articles discussing, in part, a company’s products did not constitute commercial speech under the Bolger factors because (1) the “articles
[were] not ‘conceded’ to be advertisements, and in fact, are
not in an advertisement format;” “they [were] indistinguishable from run-of-the-mill newspaper or magazine stories;”
and they did not “prominent[ly]” reference company products); Ad World, Inc. v. Twp. of Doylestown, 672 F.2d 1136,
1139-40 (3d Cir. 1982) (concluding that a local tabloid containing extensive advertising and a few pages of consumer
and community information was not commercial speech
because it was “different from an advertising leaflet put forth
by an individual merchant to tout only its own products” and
the “publication as a whole” did not “relate[ ] solely to the
economic interest of the speaker and its audience”); U.S.
Olympic Comm. v. Am. Media, Inc., 156 F. Supp. 2d 1200,
1207 (D. Colo. 2001) (“[c]onsidering the three-factor test
applied in Bolger,” the court determined that a magazine containing commercial and noncommercial speech did not constitute commercial speech, because it was not “concededly an
advertisement and . . . it [did] not refer to a specific product”).
The City’s approach would render the commercial speech
factors outlined in Bolger essentially irrelevant because courts
would simply skip that test and immediately jump to an inextricably intertwining analysis any time mixed-content speech
is at issue. The City’s reasoning would also provide less protection for vital protected speech, by essentially presuming
that any mixed-content speech is commercial unless the types
of speech are inextricably intertwined. As Justice Stevens and

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the D.C. Circuit have noted, “it is important that the commercial speech doctrine not be defined too broadly lest speech
deserving of greater constitutional protection be inadvertently
suppressed.” Central Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 579 (1980) (Justice Stevens,
concurring); Sec. & Exch. Comm’n v. Wall St. Publ’g Inst.,
851 F.2d 365, 372 (D.C. Cir. 1988) (quoting that concurring
opinion).
Finally, the City’s proposed rule would require an unreasonable expansion of the Supreme Court’s narrow inextricably intertwined exception—an exception intended to be
applied only when a “law of man or of nature makes it impossible” to separate commercial and noncommercial aspects of
speech. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,
474 (1989) (emphasis added). It surely cannot be the case that
newspapers (or any other clearly expressive, mixed-content
speech such as magazines or televised political debates that
are interspersed with commercials) can only qualify for full
First Amendment protection if the advertisements in newspapers are required by a “law of man or of nature” to be intertwined with the daily headlines. See City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 423 (1993) (“[I]t is
clear that much of the material in ordinary newspapers is
commercial speech and, conversely, that the editorial content
in respondents’ . . . publications is not what we have
described as ‘core’ commercial speech.”).
Contrary to the City’s view, publications like yellow pages
directories and newspapers receive full First Amendment protection not only because their content is somehow inextricably
intertwined, but because, as a threshold matter, they do not
constitute commercial speech under the tests of Virginia
Pharmacy and Bolger.
[7] Moreover, even if we were to adopt the City’s view,
when we apply the inextricably intertwined standard, as the
district court did, we reach the conclusion that the directories

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should receive full First Amendment protection. The commercial portions of the yellow pages directories are inextricably
intertwined with the non-commercial portions.
[8] When commercial speech is “inextricably intertwined
with otherwise fully protected speech,” it would be “artificial
and impractical” to apply different levels of scrutiny to the
different speech components. Riley v. Nat’l Fed’n of the Blind
of N.C., 487 U.S. 781, 796 (1988). We treat the entirety of the
intertwined speech as fully protected expression. Id. In contrast, speech with commercial and noncommercial components that are not inextricably intertwined is subject to the
intermediate scrutiny of Central Hudson. See Ass’n of Nat’l
Advertisers, Inc. v. Lungren, 44 F.3d 726, 730 (9th Cir. 1994).
The plaintiffs argue that the yellow page directories are
similar to the speech in Riley. The law at issue in Riley limited
the fee that a professional fundraiser could charge for soliciting charitable contributions, required a professional fundraiser
to have an approved license, and required the fundraiser to
disclose to potential donors the average percentage of gross
receipts actually turned over to charities by the fundraiser
within the previous twelve months. Riley, 487 U.S. at 804.
The Court held that the solicitation of charitable contributions
is protected speech, and it declined to apply the more deferential commercial speech principles to the portion of the statute
that related to the professional fundraiser’s profit from the
solicited contribution. Id. at 796.
In contrast, the City cites Fox as an example of a presentation with commercial elements that can be separately regulated as commercial speech despite the inclusion of
noncommercial elements. Fox considered the commercial
character of a houseware sales party where the attendees also
discussed home economics. Bd. of Trs. of State Univ. of N.Y.
v. Fox, 492 U.S. 469, 472 (1989). The Court elaborated on the
concept of inextricably intertwined speech it had first devel-

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oped in Riley and held that the commercial speech and noncommercial speech were not inextricably intertwined.
[T]here is nothing whatever ‘inextricable’ about the
noncommercial aspects of these presentations. No
law of man or of nature makes it impossible to sell
housewares without teaching home economics, or to
teach home economics without selling housewares.
Nothing in the resolution prevents the speaker from
conveying, or the audience from hearing, these noncommercial messages, and nothing in the nature of
things requires them to be combined with commercial messages.
Id. at 474.
The district court here discussed both cases and concluded
that the yellow pages Ordinance was “more like the restriction
at issue in Fox and less like the state law in Riley.” Dex Media
West, Inc. v. City of Seattle, 793 F. Supp. 2d 1213, 1224
(W.D. Wash. 2011). It went on to explain:
Unlike Riley—where the protected charitable solicitation could not be made without the compelled
commercial disclosures—and like Fox—where
housewares could be sold without teaching
economics—nothing in the City’s Ordinance nor in
the nature of these directories requires that their noncommercial aspects, such as maps, listings, and
street guides, be combined with advertising. The two
aspects of these directories—the commercial and the
noncommercial—are therefore not inextricably intertwined.
Id.
We disagree. Fox addressed clear advertising that tried to
evade a regulation by “link[ing] a product to a current

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debate,” Fox, 492 U.S. at 475. That is not true for the phone
book. It was not created to serve merely as a vehicle for the
delivery of ads. The telephone directory started as just that, a
directory of telephone numbers. The commercial elements
came later and even today take up only a limited fraction of
the space in the phone book.
That phone book companies depend economically upon
advertisements to pay for the directories does not distinguish
them from other forms of communications that plainly qualify
for full First Amendment protection. As noted above, economic motive in itself is insufficient to characterize a publication as commercial.
The full First Amendment protection of newspapers, magazines, television shows, radio programs, and the like demonstrates that the inclusion of commercial material does not
support treating those publications and broadcasts as commercial speech entitled to less First Amendment protection. A
newspaper or magazine could be subscription-only and contain no advertisements, and broadcasters could similarly
forego commercials and rely upon other sources of income.
There is no legal requirement that these publications defray
costs — or make profits — with advertising. But public
broadcasting and Consumer Reports are the very limited
exceptions, not the rule. The Seattle Times is owned by a private corporation and operated as a commercial enterprise, like
the New York Times, the Wall Street Journal, and virtually all
major American newspapers. So, too, are the commercial television and radio networks, their affiliates in Seattle, and the
substantial majority of television and radio stations across the
nation.
In Riley, the Court observed that “[r]egulation of a solicitation ‘must be undertaken with due regard for the reality that
solicitation is characteristically intertwined with informative
and perhaps persuasive speech . . . , and for the reality that
without solicitation the flow of such information and advo-

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cacy would likely cease.’ ” Riley v. Nat’l Fed’n of the Blind
of N.C., 487 U.S. 781, 796 (1988) (quoting Schaumburg v.
Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)).
[9] Economic reality applies here, too. Without advertising, the Seattle Times would presumably not exist, as the
Seattle Post-Intelligencer no longer does in printed form. That
the yellow pages directories depend financially upon advertising does not make them any less entitled to protection under
the First Amendment. In S.O.C., Inc. v. County of Clark, 152
F.3d 1136, 1144 (9th Cir. 1998), we held, on preliminary
injunction review, that a merits challenge to a county ordinance would likely conclude that the ordinance “infringes on
First Amendment protections accorded a party seeking to distribute noncommercial expressive material containing some
form of commercial advertising” because it “may prohibit the
distribution of newspapers, pamphlets, magazines, and other
publications that contain some form of commercial advertising, even if the noncommercial content is unrelated to the
advertising copy.” See also Hays Cnty. Guardian v. Supple,
969 F.2d 111, 120 (5th Cir. 1992) (“The advertisements in the
Guardian were included to finance the publication. Under
such circumstances, commercial speech was inextricably
intertwined with the newspaper’s non-commercial speech,
making the whole paper non-commercial.”); Ad World, Inc. v.
Twp. of Doylestown, 672 F.2d 1136, 1140 (3d Cir. 1982)
(finding a tabloid to be fully protected speech because “each
issue . . . contains noncommercial material deserving of full
first amendment protection.”).
The district court did not question the economic reality that
confronts newspapers and broadcasters, as well as phone book
publishers, but concluded that economic dependence was not
sufficient to intertwine the commercial and noncommercial
elements of the publication:
While advertising may be a convenient way to
defray the expense of the state-mandated directories,

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and while the noncommercial information may render receipt of the advertising contained in these
directories more palatable to portions of the public,
Plaintiffs point to no legal mandate or other circumstance requiring the combination of the commercial
and noncommercial aspects in these directories.
Dex Media West, Inc. v. City of Seattle, 793 F. Supp. 2d
1213, 1225 (W.D. Wash. 2011). But no legal mandate
requires the Seattle Times or the KING television station in
Seattle to run ads, either.
To treat yellow pages directories as lesser-protected commercial speech because commercial content is published
alongside noncommercial content, we would have to draw a
distinction between the phone books and other publications
that combine commercial and noncommercial speech with
different underlying speakers, such as newspapers and magazines. The district court held that “commonsense — the
touchstone of the commercial speech doctrine — dictates that
the yellow pages directories should not receive the highest
level of protection afforded by the First Amendment.” Id. at
1223. But even if there is an intuitive distinction between yellow pages directories and protected media like newspapers, it
does not necessarily follow that the First Amendment sanctions differential treatment on that basis.
The district court distinguished newspapers from yellow
pages, saying that “newspapers have played an historic role in
our democracy as conveyers of individual ideas and opinions
. . . and are at the heart of historical justification for freedom
of the press.” Id. at 1225 (internal quotation marks omitted).
That protection of newspapers was a driving force behind the
adoption of the First Amendment does not limit the scope of
the amendment’s coverage.
The First Amendment does not make protection contingent
on the perceived value of certain speech. “The First Amend-

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ment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative
social costs and benefits.” United States v. Stevens, 130 S. Ct.
1577, 1585 (2010); see Brown v. Entm’t Merchants Ass’n,
131 S. Ct. 2729, 2737 n.4 (2011) (“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual
differences are not constitutional ones. Crudely violent video
games, tawdry TV shows, and cheap novels and magazines
are no less forms of speech than The Divine Comedy, and
restrictions upon them must survive strict scrutiny.”). The
First Amendment protects Hustler Magazine, too. See Hustler
Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Both newspapers and yellow pages directories contain noncommercial
speech; a distinction in treatment on the basis of the perceived
difference in worthiness of that noncommercial speech is not
permitted.
The City argues that we should distinguish yellow pages
directories from newspapers and similar media because it
claims that the essence of the latter is still noncommercial,
even though it is funded by advertising, whereas the essence
of yellow pages directories is commercial. We are not persuaded by the City’s attempts to distinguish the two on this
basis.
To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the
noncommercial speech to make their advertising space more
desirable due to greater directory use. But it is important to
keep in mind that the First Amendment protections available
to newspapers and similar media do not apply only to those
institutions of the type who “have played an historic role in
our democracy.” To assume that every protected newspaper,
magazine, television show, or tabloid’s “noncommercial”
content precedes and takes priority over the publishing parent
company’s desire to sell advertising is at odds with reality and
the evidence in the record.

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[10] Ultimately, we do not see a principled reason to treat
telephone directories differently from newspapers, magazines,
television programs, radio shows, and similar media that does
not turn on an evaluation of their contents. A profit motive
and the inclusion or creation of noncommercial content in
order to reach a broader audience and attract more advertising
is present across all of them. We conclude, therefore, that the
yellow pages directories are entitled to full First Amendment
protection.
B.

The Ordinance Does Not Survive Strict Scrutiny

[11] Having reached the conclusion that the entire directories are fully protected under the First Amendment, we apply
strict scrutiny to the Ordinance. See Ass’n of Nat’l Advertisers, Inc. v. Lungren, 44 F.3d 726, 730 (9th Cir. 1994). “With
respect to noncommercial speech, this Court has sustained
content-based restrictions only in the most extraordinary circumstances.” Bolger v. Youngs Drug Prods. Corp., 463 U.S.
60, 65 (1983). Such a regulation “is valid only if it is the least
restrictive means available to further a compelling government interest.” Berger v. City of Seattle, 569 F.3d 1029, 1050
(9th Cir. 2009) (en banc).
[12] The Ordinance does not satisfy this standard. While
arguing that the Ordinance survives intermediate scrutiny
under Central Hudson, the City advanced three governmental
interests: (1) waste reduction, (2) resident privacy, and (3)
cost recovery. See Seattle Ordinance 123427 (Oct. 14, 2010)
(Preamble). We need not determine whether any or all of
these interests are “compelling”; even if they are, the Ordinance is not the least restrictive means available to further
them. One clear alternative is for the City to support the Yellow Pages Companies’ own private opt-out programs. With
proper implementation, the private opt-out programs could
achieve precisely the same goals as the City’s registry. Even
fining the Yellow Pages Companies for a lack of compliance

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with their own opt-out terms would be less restrictive than
compelling them to fund and advertise the City’s program.4
[13] Therefore, we hold that the Ordinance violates the
First Amendment and cannot be maintained. We dismiss the
appeal of the preliminary injunction as moot, reverse the district court’s order granting summary judgment to the defendants, and remand for entry of judgment in favor of the
plaintiffs. We do not reach the Commerce Clause and state
law claims.
DISMISSED in part; REVERSED and REMANDED in
part.

4

We do not hold that implementation of any of these alternatives would
necessarily be lawful. They simply demonstrate that the regulations
imposed by the Ordinance were not the least restrictive means.