First Amendment scores major victory in Seattle

Photo of William J. Watkins, Jr.
William J. Watkins, Jr.
Research Fellow, Independent Institute
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      William J. Watkins, Jr.

      William J. Watkins, Jr. is a Research Fellow at The Independent Institute. He received his B.A. in history and German summa cum laude from Clemson University and his J.D. cum laude from the University of South Carolina School of Law. He is a former law clerk to Judge William B. Traxler, Jr. of the U.S. Court of Appeals for the Fourth Circuit, and he has served as Assistant U.S. Attorney, Associate at Womble Carlyle Sandridge & Rice, and Associate with Leatherwood Walker Todd & Mann.

      His books include Judicial Monarchs: The Case for Restoring Popular Sovereignty in the United States and the Independent Institute book, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (Palgrave/Macmillan), and his scholarly articles have appeared in the South Carolina Law Review, The Independent Review, Duke Journal of Constitutional Law and Public Policy, Exploring American History Encyclopedia, and America in World History Encyclopedia.

      Mr. Watkins is the recipient of the R. Glen Ayers Award for Historical Writing and the CALI Award for Contracts I, Civil Procedure, Problems in Professional Responsibility. His popular articles have appeared in the Christian Science Monitor, Forbes, Daily Caller, USA Today, Washington Times, Austin American- Statesman, Providence Journal, San Jose Mercury News, Washington Examiner, Denver Post, Fort Worth Star- Telegram, Bellingham Herald, Lexington Herald-Leader, Sacramento Bee, Duluth News Tribune, Janesville Gazette, Walworth County Today, Wapakoneta Daily News, Dispatch, La Crosse Tribune, Lewiston Sun Journal, and Newport Daily News, San Francisco Examiner, Human Events, Chronicles, and Silicon Valley/San Jose Business Journal.

After suffering through the near-endless barrage of half-truths and distortions that marked this year’s political advertising, many Americans are in no mood to cheer the First Amendment.

Yet, they should applaud a recent decision by the Ninth Circuit Court of Appeals striking down a Seattle law restricting free speech.

Speech regulations are sticky issues. The First Amendment, which applies to state and local government as well as Congress, allows “no law … abridging the freedom of speech.”

Based on case law, however, the propriety of such laws often turns on whether they regulate commercial or noncommercial speech, with the former afforded less protection than the latter.

The courts reason that commercial speech can be regulated more than noncommercial speech because government has an interest in preventing commercial harm. That’s why advertisers are not allowed to make false product claims, for example.

The Seattle ordinance, which the court overturned in mid-October, banned the distribution of “Yellow Pages phone books” in the city unless the publishers satisfied certain rules. First, the publisher had to obtain a special license. Second, the publisher was required to pay the city 14 cents for each Yellow Pages phone book distributed within Seattle’s jurisdiction. Finally, publishers had to comply with an opt-out registry, permitting residents to decline receipt of future phone books from the publisher.

The ordinance defined a “Yellow Pages phone book” as a publication consisting primarily of business listings and containing advertising for some of those businesses.

Seattle defended its regulation by characterizing the phone books as pure commercial speech with little value to society. (Tell that to the homeowner who needs a 24-hour plumber.) Because of the high advertising content in such directories, the city asserted that the books were only entitled to a modicum of protection.

The publishers argued that the directories should receive the highest level of First Amendment protection because the publications, in addition to business listings and advertisements, provided significant amounts of public interest material, such as community information, maps, and government listings. The directories thus contributed to the dissemination of information.

The Ninth Circuit rejected Seattle’s commercial-speech argument, concluding that phone books were not that much different than newspapers and other publications that attempt to create positive cash flow from publishing.

“The First Amendment does not make protection contingent on the perceived value of certain speech,” the court wrote, reaffirming that speech intertwined with commercial activity, such as advertising, enjoys fundamental constitutional protections.

In defending the regulations in the lower court, Seattle put great emphasis on the “green interests” surrounding the recycling and disposal of phone books.

Fortunately, the Ninth Circuit did not permit these arguments to trump the First Amendment. Had it done so, the door would have been opened for great censorship. Editors of sundry publications would be tempted to reduce criticism of city government for fear that new regulations would be aimed at their commercial components. Under Seattle’s reasoning, successful publications with high advertising content could have been put at risk.