Governments can deny records access to commercial users

From the Winter 2000 issue of The News Media & The Law, page 6.

The U.S. Supreme Court has upheld a California law that bars commercial enterprises from accessing and using certain information from police records.

The law, which allows access to the addresses of people arrested only to those users who swear not to use the information to sell a product or service, does not violate the First Amendment's guarantee of free speech, the nation's highest court ruled December 7.

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By a 7-2 vote, the U.S. Supreme Court found in early December that a state law prohibiting commercial use of police record information is not, on its face, an unconstitutional restriction of free speech merely because it limits access to government information. Because a government may restrict access to information to all people, a government may instead limit access to particular classes of users without affecting constitutional speech at all, the Court ruled.

In upholding the California law, Chief Justice William Rehnquist wrote for the Court that this "is not a case in which the government is prohibiting the speaker from conveying information that the speaker already possesses." The law merely requires that if a company "wishes to obtain the addresses of arrestees it must qualify under the statute to do so."

The 1996 California law requires people seeking the addresses of arrestees to swear that the information will be used only for one of five authorized purposes -- including journalism -- and that it will not be used to sell a product or service. The purpose of the law, according to its backers, is to protect the privacy of arrestees and prevent potential harassment from attorneys, social workers, bail bondsmen and others who use the information to solicit clients.

United Reporting Publishing Corp., which publishes the names and addresses of people arrested in a publication targeted to lawyers, bail bondsmen and social workers, challenged the law in federal District Court in San Diego in 1996 on grounds that it restricts constitutionally protected commercial speech. The District Court initially enjoined enforcement of the law and ultimately ruled it invalid. The U.S. Court of Appeals in San Francisco (9th Cir.) affirmed in June 1998.

In its briefs to, and in oral arguments before, the U.S. Supreme Court on appeal, United Reporting argued the California law is a content-based restriction on speech. The law, United Reporting argued, punishes commercial speakers who publish truthful information.

The Los Angeles Police Department defended the scheme on grounds that the law limits only access to information, not the right to speak. In denying that there is a First Amendment right to access information, the LAPD said the same authority that allows it to restrict access to everyone allows it to limit access only to certain classes of users.

In a friend-of-the-court brief, The Reporters Committee for Freedom of the Press argued that the law is indeed an unconstitutional burden on free speech because it differentiates between different types of users of government information.

Just because the law differentiates between various classes of record users, with some groups being allowed to use the information while others are not, does not mean the law is unconstitutional, a majority of the Court ruled. The fact that California can limit access to police records entirely means that the state can allow access to only particular groups, the Court said.

The Court's analysis centered on the issue of whether the law itself is unconstitutional on its face, or whether it is unconstitutional as applied to United Reporting.

The majority found the law constitutional on its face. But in separate concurrences, Justices Antonin Scalia and Ruth Bader Ginsburg drew different conclusions, with Scalia in particular suggesting that it may be unconstitutional as applied to United Reporting.

Justice John Paul Stevens, joined by Justice Anthony Kennedy, dissented, writing that the majority was "misguided" to view the case only as a challenge to the law's constitutionality on its face, when, in fact, United Reporting had argued the law is also unconstitutional as applied. Stevens also stated that the law involves only access to information -- not constitutionally protected commercial speech. (LAPD v. United Reporting)

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In the wake of its decision in LAPD v. United Reporting, the Supreme Court a week later declined to review a challenge to a similar Kentucky law on appeal from the U.S. Court of Appeals in Cincinnati (6th Cir.).

The Kentucky law is similar to California's: it is designed to protect the privacy of people named in police records, namely accident reports. It limits access to accident reports to parties associated with the accident and to members of the news media, among others. A group of attorneys and chiropractors who used the names and addresses of accident victims to solicit clients challenged the law in federal District Court in Louisville, Ky., in 1994.

The District Court in Kentucky granted an injunction against application of the law, finding the law unconstitutionally burdened commercial speech. Ruling only on procedural issues and without reaching the merits of the underlying case, the U.S. Court of Appeals in Cincinnati (6th Cir.) removed the injunction and sent the case back to the trial court in January 1999. In a two-sentence order issued December 13, the U.S. Supreme Court rejected the appeal and remanded the case for a decision consistent with its LAPD v. United Reporting ruling. (McClure v. Amelkin)