Dex Media West, Inc. v. City of Seattle

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, No. 11-35399

v.  D.C. No.

2:10-cv-01857-JLR

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, No. 11-35787

Plaintiffs-Appellants,

v.  D.C. No.

2:10-cv-01857-JLR

CITY OF SEATTLE; RAY HOFFMAN, in OPINION

his official capacity as Director of

Seattle Public Utilities,

Defendants-Appellees.



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

12313

12314 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.

12316 DEX MEDIA WEST, INC. v. SEATTLE

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 ubiqui-

tous 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-

DEX MEDIA WEST, INC. v. SEATTLE 12317

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 direc-

tories. The publishers are required by the Ordinance to adver-

tise 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 opt-

out 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, allow-

ing the Ordinance to stand. The district court reasoned that the

directories represented “commercial speech,” which benefits

from less protection under the First Amendment. The plain-

tiffs 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 direc-

tories are entitled to the full protection of the First Amend-

ment. 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.

12318 DEX MEDIA WEST, INC. v. SEATTLE

I. Factual Background

A. Yellow Pages

The State of Washington requires telephone companies

(“local exchange carriers” or “LECs”) to publish and distrib-

ute 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 cate-

gories: (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 “yel-

low pages.” Display advertising comprised about 35% of the

2010 Dex Seattle Metro yellow pages.

Users consult phone books for a number of reasons, includ-

ing finding business, government, and personal telephone

numbers and addresses, identifying businesses that provide a

desired service or good, comparing goods and services avail-

able 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.

DEX MEDIA WEST, INC. v. SEATTLE 12319

B. Ordinance 123427

Between June and October 2010, the City Council heard

testimony from residents who were frustrated with the deliv-

ery of unwanted yellow pages to their homes. Dex and Super-

Media 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 cer-

tain 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 resi-

dents 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 “ob-

tain[ ] 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 Utili-

ties. Id. §§ 6.255.060, .080(B). Publishers must also pay the

City fourteen cents for “each yellow pages phone book dis-

tributed within the City.” Id. § 6.255.100(A). Publishers must

12320 DEX MEDIA WEST, INC. v. SEATTLE

“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 cover-

age. “Distribution” is defined to exclude delivery of directo-

ries 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 Washing-

ton 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 chal-

lenging 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 dis-

trict court granted summary judgment in favor of the City on

the Yellow Pages Companies’ claims under the First Amend-

ment and the Commerce Clause. Dex Media West, Inc. v. City

DEX MEDIA WEST, INC. v. SEATTLE 12321

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 motiva-

tion 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 noncommer-

cial aspects, such as maps, listings, and street guides, be com-

bined with advertising.” Dex Media, 793 F. Supp. 2d at 1223-

24. 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 along-

side 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, resi-

dent 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-

12322 DEX MEDIA WEST, INC. v. SEATTLE

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 thereaf-

ter, 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 Compa-

nies’ remaining claims, which involved Washington state law.

Dex Media West, Inc. v. City of Seattle, No. 2:10-cv-01857-

JLR, 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 prelimi-

nary 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.

DEX MEDIA WEST, INC. v. SEATTLE 12323

A. Yellow Pages Phone Books are Noncommercial Speech

The First Amendment affords protection to both commer-

cial and noncommercial speech. See Bigelow v. Virginia, 421

U.S. 809, 818 (1975). The strength of that protection, how-

ever, 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 restric-

tions 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 lim-

ited 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.

12324 DEX MEDIA WEST, INC. v. SEATTLE

phone book as a whole, not simply the individual advertise-

ments contained therein. It is just as readily apparent that tele-

phone listings and community information contained in the

directory constitute noncommercial speech. See City of Cin-

cinnati v. Discovery Network, Inc., 507 U.S. 410, 423 (1993)

(“[I]t is clear that much of the material in ordinary newspa-

pers 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 cus-

tomers, demonstrating that the directories serve more than a

commercial purpose.

Because the phone books contain components of both com-

mercial 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 com-

mercial speech. This determination is made either (1) under

the traditional test from Virginia Pharmacy, because the

speech “does no more than propose a commercial transac-

tion,” 425 U.S. at 762; or, (2) in “close question[s],” because

the publication reflects other characteristics, such as the fac-

tors 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

DEX MEDIA WEST, INC. v. SEATTLE 12325

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 charac-

teristics . . . 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 protec-

tion, because the commercial aspects of the speech are “inex-

tricably 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 consid-

ered 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 inter-

twined” test. Id. The Court’s analysis in Riley makes clear that

12326 DEX MEDIA WEST, INC. v. SEATTLE

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 com-

mercial 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 house-

wares at a variant on a “Tupperware party” in a student dor-

mitory. Id. at 472. In addition to pitching the company’s

products, the party host also discussed home economics top-

ics. Id. at 473-74. The Court determined that there was “no

doubt” that the houseware parties were held merely to “pro-

pose 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 con-

sumer should buy them.” Id. at 716. Only after making this

determination did we further explain that “any noncommer-

cial aspect of [their] speech is not inextricably intertwined

DEX MEDIA WEST, INC. v. SEATTLE 12327

with commercial speech,” because the plaintiffs “could easily

sell their wares without reference to any religious, philosophi-

cal, 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 classifica-

tion of commercial speech. The yellow pages clearly do

“more than propose a commercial transaction.” Virginia

Pharmacy, 425 U.S. at 762. Even assuming this mixed-

content 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 Bol-

ger 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 mer-

chant 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.

12328 DEX MEDIA WEST, INC. v. SEATTLE

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 non-

commercial 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 contracep-

tives 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 chari-

ty’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 advertis-

ing 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 publish-

ing 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 regu-

lated 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 man-

ufactures or distributes”).

DEX MEDIA WEST, INC. v. SEATTLE 12329

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.”); Pitts-

burgh 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 publica-

tions, or hybrid speech, can only receive full First Amend-

ment protection if the commercial speech is “inextricably

intertwined” with the other speech in the directories. How-

ever, such a rule is contradicted by many decisions conclud-

ing that various types of mixed-content speech were fully

protected even without engaging in an inextricably inter-

twined analysis. See Consol. Edison Co. v. Pub. Serv.

Comm’n, 447 U.S. 530 (1980) (concluding that a utility com-

pany’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 discus-

sion,’ 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 commer-

cial 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) (con-

cluding, on a preliminary injunction review, that a publication

with protected speech and commercial advertisements consti-

tuted “noncommercial expressive material” without expressly

holding that this mixed-content was “inextricably inter-

12330 DEX MEDIA WEST, INC. v. SEATTLE

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 news-

paper 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 discuss-

ing, in part, a company’s products did not constitute commer-

cial 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] indistinguish-

able from run-of-the-mill newspaper or magazine stories;”

and they did not “prominent[ly]” reference company prod-

ucts); Ad World, Inc. v. Twp. of Doylestown, 672 F.2d 1136,

1139-40 (3d Cir. 1982) (concluding that a local tabloid con-

taining 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 con-

taining commercial and noncommercial speech did not consti-

tute 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 inex-

tricably intertwining analysis any time mixed-content speech

is at issue. The City’s reasoning would also provide less pro-

tection 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

DEX MEDIA WEST, INC. v. SEATTLE 12331

the D.C. Circuit have noted, “it is important that the commer-

cial 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 unrea-

sonable expansion of the Supreme Court’s narrow inextrica-

bly intertwined exception—an exception intended to be

applied only when a “law of man or of nature makes it impos-

sible” 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 newspa-

pers are required by a “law of man or of nature” to be inter-

twined 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 pro-

tection 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

12332 DEX MEDIA WEST, INC. v. SEATTLE

should receive full First Amendment protection. The commer-

cial 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 con-

trast, speech with commercial and noncommercial compo-

nents 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 solicit-

ing 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 deferen-

tial 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 presenta-

tion with commercial elements that can be separately regu-

lated 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-

DEX MEDIA WEST, INC. v. SEATTLE 12333

oped in Riley and held that the commercial speech and non-

commercial 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 non-

commercial messages, and nothing in the nature of

things requires them to be combined with commer-

cial 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 solici-

tation 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 non-

commercial 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 inter-

twined.

Id.

We disagree. Fox addressed clear advertising that tried to

evade a regulation by “link[ing] a product to a current

12334 DEX MEDIA WEST, INC. v. SEATTLE

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, eco-

nomic motive in itself is insufficient to characterize a publica-

tion as commercial.

The full First Amendment protection of newspapers, maga-

zines, television shows, radio programs, and the like demon-

strates that the inclusion of commercial material does not

support treating those publications and broadcasts as commer-

cial speech entitled to less First Amendment protection. A

newspaper or magazine could be subscription-only and con-

tain 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 pri-

vate 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 tele-

vision 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 solicita-

tion ‘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-

DEX MEDIA WEST, INC. v. SEATTLE 12335

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 advertis-

ing, 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 advertis-

ing 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 ordi-

nance would likely conclude that the ordinance “infringes on

First Amendment protections accorded a party seeking to dis-

tribute 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 advertis-

ing, 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,

12336 DEX MEDIA WEST, INC. v. SEATTLE

and while the noncommercial information may ren-

der receipt of the advertising contained in these

directories more palatable to portions of the public,

Plaintiffs point to no legal mandate or other circum-

stance 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 com-

mercial 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 maga-

zines. 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 yel-

low pages directories and protected media like newspapers, it

does not necessarily follow that the First Amendment sanc-

tions 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-

DEX MEDIA WEST, INC. v. SEATTLE 12337

ment’s guarantee of free speech does not extend only to cate-

gories 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 unques-

tionably more cultured and intellectually edifying than play-

ing 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 newspa-

pers 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 per-

suaded by the City’s attempts to distinguish the two on this

basis.

To be sure, the Yellow Pages Companies are in the busi-

ness 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.

12338 DEX MEDIA WEST, INC. v. SEATTLE

[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 directo-

ries are fully protected under the First Amendment, we apply

strict scrutiny to the Ordinance. See Ass’n of Nat’l Advertis-

ers, 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 cir-

cumstances.” 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 govern-

ment 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 Ordi-

nance is not the least restrictive means available to further

them. One clear alternative is for the City to support the Yel-

low 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

DEX MEDIA WEST, INC. v. SEATTLE 12339

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 dis-

trict court’s order granting summary judgment to the defen-

dants, 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.