Ed Murray, Mayor
SUBJECT: City seeks rehearing of Yellow Pages case
11/15/2012 12:00:00 PM
Kimberly Mills (206) 684-8602
The City has asked the 9th Circuit U.S. Court of Appeals to hear en banc the suit brought by Yellow Pages and other companies against the opt-out registry approved by the City Council in 2010.
Last month a three-judge panel ruled against the City, saying it could not force Yellow Pages and other companies to fund the op-out registry because Yellow Pages are not commercial speech, but rather have full First Amendment protection like newspapers.
The City’s rehearing petition will be granted if 15 of the 28 active judges of the Ninth Circuit appeals court vote in favor.
In its petition, the City asserts that "The conclusion that Yellow Pages are not commercial speech is contrary to the long-standing law of the Supreme Court, this Court and sister circuits requiring that hybrid speech be regulated as commercial speech unless the two types of speech are actually 'inextricably intertwined.' "
Also, the petition says: "Federal, state, and local governments have legitimate interests in regulating abusive business practices and have enacted numerous restrictions protecting consumers from unwanted solicitation. The panel’s decision provides a ready blueprint for commercial entities to evade those legitimate restrictions."
More than 79,000 residents and businesses have opted out under the program operated by Seattle Public Utilities.