On Oct. 15, 2012, the 9th Circuit Court of Appeals issued two decisions notable for their discussion of what constitutes commercial speech under the First Amendment.  The court's decisions to find yellow pages directories fully protected speech, but not a billboard advertising a television program, are nothing if not inconsistent. 

Dex Media West, Inc. v. City of Seattle, --- F.3d ----, 2012 WL 4857200 (9th Cir. Oct. 15, 2012) 

In this case, the 9th Circuit struck down an ordinance regulating yellow pages directories.

The ordinance, enacted in 2010 by the City of Seattle, required publishers of yellow pages directories to obtain permits and pay a fee for each directory distributed in the city; established an opt-out registry through which residents could decline to receive directories; and required directory publishers to advertise the availability of the registry on the cover of their directories.

Two companies and an industry organization challenged the validity of the ordinance based on the First Amendment and Commerce Clause of the United States Constitution, Washington State Constitution, and statutes.  The district court for the Western District of Washington, reasoning that the directories were commercial speech, granted summary judgment to the defendants. The 9th Circuit reversed, finding that "yellow pages directories qualify for full protection under the First Amendment."

The district court based its decision on the factors set forth in Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), looking at the advertising format, references to specific products, and economic motivation for the publication, to find the directories were commercial speech.  It then found the directories' commercial speech was not inextricably intertwined with noncommercial speech because the noncommercial portions—i.e., maps, listings, and street guides—need not be combined with advertising.  Finally, it found the ordinance satisfied the intermediate scrutiny standard applicable to commercial speech because the government had a substantial interest in waste reduction, residential privacy, and cost recovery, and there was a reasonable fit between the ordinance and the interests.

The 9th Circuit disagreed. It found that although many ads in the directories were "core" commercial speech, i.e. "speech which does no more than propose a commercial transaction," the ordinance regulated the phone book as a whole, and the telephone listings and community information were noncommercial speech.  It then used a two-part test, looking first to whether the "publication as a whole constitutes commercial speech," and second, if they are, to whether "the commercial aspects of the speech are 'inextricably intertwined' with otherwise fully protected speech."  Under this test, it found that the directories went "beyond the threshold classification of commercial speech," noting that "economic motive in itself is insufficient to characterize a publication as commercial."  The court then found the ordinance failed to satisfy strict scrutiny because it was not the least restrictive means of serving the city's asserted interests.

The court's opinion is notable for its extensive and helpful discussion of the First Amendment.  It stated, for example, that

[t]he First Amendment does not make protection contingent on the perceived value of certain speech.  The First Amendment'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.  The First Amendment protects Hustler Magazine, too.  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.

Charles v. City of Los Angeles, --- F.3d ----, 2012 WL 4857194 (9th Cir. Oct. 15, 2012) 

In this opinion, issued the same day as Dex Media, the court found that a billboard advertising an entertainment news program was commercial speech and thus subject to the city of Los Angeles's sign permitting requirements.

Appellants sought to install a temporary offsite sign advertising the television program "E! News" without obtaining a permit under the city's ordinance, which contained an exemption for temporary signs that do not "contain[] a political, ideological or other noncommercial message."  The sign would have featured the "E! News" logo as well as photographs of the show's hosts.  The city deemed the sign "strictly commercial in nature" and notified Appellants that it would violate the ordinance.  The district court agreed and granted judgment in its favor.

The 9th Circuit affirmed, stating the question before it was "whether truthful advertisements for expressive works protected by the First Amendment are inherently noncommercial in nature."  Applying the Bolger test, the court found that it was not.  Specifically, the court found that the sign was an advertisement and undisputedly referred to a particular cultural product, and that Appellants had an economic motivation in encouraging the public to view the program.

The court rejected Appellants' argument that advertisements for noncommercial expressive works go beyond a proposal for a commercial transaction by promoting the "ideas, expression and content contained in the works," finding that "[t]he test for commercial speech is not so lacking in nuance."  Although ads for noncommercial works "might" include both a proposal for a commercial transaction and "some amount of noncommercial expression," the government "may … restrict the commercial message regardless of its proximity to noncommercial speech."

The court concluded that "[d]octrines extending noncommercial status from a protected work to advertising for that work are justified only to the extent necessary to safeguard the ability to truthfully promote protected speech."  It found that Appellants had failed to show such a justification and squarely rejected the idea that "truthful advertisements for books, films, video games, topless dancing, and all other forms of noncommercial expression [are] beyond the reach of commercial speech regulations."

In so ruling, the Charles court took a far more restrictive approach to decide the billboard was not commercial speech, reading Bolger literally without fully considering, as the Dex Media court did, the purposes behind the First Amendment's protection of noncommercial speech.­­