Do You Want to Pass an Ordinance Regulating the Distribution of Phone Books? Not so fast says the Ninth Circuit…

Every year local governments observe an annual ritual – the door-to-door delivery of phone books, which quickly get dumped into the recycling bin.  In today’s Internet age, phone books seem to be becoming a thing of the past.  Our fingers may still be doing the walking, but they have relocated to a new neighborhood!

 Because of this annual ritual, several local jurisdictions passed ordinances that attempted to regulate the distribution of phone books.  Phone book companies, as you might expect, disliked these ordinances and challenged them in federal court.  Last month, the Ninth Circuit Court of Appeals, the federal appellate district to which Oregon belongs, agreed with the phone book companies and held that phone books are speech that have full protection under the First Amendment.

In Dex Media West, Inc. V. Seattle, the ordinance in question was a 2010 City of Seattle law that required publishers of phone books to obtain permits and pay a fee for each directory distributed in the city. It also established an opt-out registry, through which residents could decline to receive phone books. The publishers were required by the law to advertise the availability of the opt-out registry on the front covers of their phone books.  The fees paid by the publishers were intended to cover the cost of operating and promoting the opt-out registry.

 In examining the ordinance, the Ninth Circuit explained that “[a]lthough portions of the directories are obviously commercial in nature, the books contain more than that, and we conclude that the directories are entitled to the full protection of the First Amendment.”  Because of this level of protection, the ordinance was subject to the legal analysis known as strict scrutiny and was struck down by the Court as a violation of the First Amendment.

 This case is an important reminder for local governments about the far reach of free speech protections under the United States and Oregon constitutions.  Local governments are encouraged to work closely with us here at BEH before enacting regulations that might implicate free speech rights.

Local Government Liability for Adverse Employment Actions Could Be Affected by U.S. Supreme Court Case

The U.S. Supreme Court granted a petition for certiorari to hear a case that could have far-reaching consequences for state and local governments.  The question presented is whether the Third Circuit Court of Appeals erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue. The facts of the case involve the Borough of Duryea, Pennsylvania’s dismissal of Police Chief Guarnieri.  After filing a union grievance he was reinstated to his position but upon his return to work, the Borough Council issued eleven directives to Guarnieri regarding things he could and could not do on the job.  Again, Guarnieri filed a union grievance whereby an arbitrator directed Duryea to modify or abandon some of the directives.  Eventually, Guarnieri filed suit against his employer alleging unconstitutional retaliation under the First Amendment for filing grievances against the City.   His grievances included the issuance of the directives, delay in issuing health insurance benefits and withholding of overtime pay.

The Third Circuit found that a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause of the First Amendment from retaliation for that activity even if the petition concerns a matter of solely private concern.   Every other federal circuit court has held the opposite – that the matters must be of public concern to be protected.  For example, the Ninth Circuit has held that where an employee grievance related only to refuting false charges of an employee’s ineptitude, those were matters only of a personal interest and as such the employee could not invoke First Amendment protection.  See Gearhart v. Thorn 768 F2d 1072 (9th Cir. 1985).

The ruling will impact local governments if in fact employees are allowed to invoke First Amendment protections for matters of private concern.  While it will negate the need to distinguish between matters of public and private concern where grievances are concerned, it could also result in increased liability for public entities when subjecting employees to adverse employment actions.  Local government employers will need to be much more cautious when disciplining employees who have filed grievances.

Briefing is scheduled to be completed in early 2011, after which time an oral argument date will be set.  Stay tuned for updates on this important case.