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.
Even major magazines like Forbes and Vogue are often more than 50 percent advertising. Based on Seattle’s stance in court, such high advertising content could have placed these magazines over a threshold where they would be subject to government regulation.
Fortunately, the court could not find “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.”
The Ninth Circuit should be applauded for rejecting Seattle’s program of speech restrictions. If First Amendment guarantees are not applied fairly and uniformly, governments could too easily characterize unfavorable speech as “commercial” and subject it to myriad restrictions.
Election-season excesses aside, freedom of speech and freedom of the press are worth defending.
William J. Watkins, Jr. is a Research Fellow at The Independent Institute (independent.org), Oakland, CA, and author of the book, “Reclaiming the American Revolution.”