|
UNITED STATES COURT OF APPEALS
UNITED REPORTING PUBLISHING CORP., Plaintiff-Appellant, v. CALIFORNIA HIGHWAY PATROL, Defendant, v. LOS ANGELES POLICE DEPARTMENT, Defendant-Appellee.
SUPPLEMENTAL BRIEF AMICUS CURIAE OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS IN SUPPORT OF PLAINTIFF-APPELLANT
ON REMAND FROM A JUDGMENT OF THE UNITED STATES SUPREME COURT
Corporate Disclosure Statement Pursuant to Rule 26.1, amicus curiae The Reporters Committee for Freedom of the Press states that it is a voluntary, unincorporated association of journalists. As such, amicus curiae has no parent corporations, and no person or corporation owns any stock in the Reporters Committee.
Table of Contents Argument 4 Conclusion 14
Cases Branzburg v. Hayes, 408 U.S. 665 (1972) 9 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) 6 Grayned v. City of Rockford, 408 U.S. 104 (1972) 8 Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 186 (App. Ct. 1975) 12 McCoy v. Providence Journal Co., 190 F.2d 760 (1st Cir. 1951) 7 Mills v. Alabama, 384 U.S. 214 (1966) 12 National Security Archive v. U.S. Dep’t of Defense, 880 F.2d 1381 (1989) 10 Newspapers, Inc. v. Breier, 89 Wis. 2d 417 (1979) 11 Paul v. Davis, 424 U.S. 693 (1976) 6 Police Dept. v. Mosley, 408 U.S. 92 (1972) 5 Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8 (S.D. Iowa 1971) 7 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 8 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) 13 Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991) 6 United States v. Petrillo, 332 U.S. 1 (1947) 8 von Bulow v. von Bulow, 811 F.2d 136 (1987) 9 Wainwright v. City of New Orleans, 392 U.S. 598 (1968) 13 Statutes 5 U.S.C. § 552 10 Cal. Gov’t Code § 6250 et seq. 4 Cal. Gov’t Code § 6254 4 Cal. Gov’t Code § 6254(f)(3) passim Cal. Penal Code §§ 126, 627 5 Other U.S. Constitution, Amendment I 1, 5 U.S. Constitution, Amendment VI 3, 13 U.S. Constitution, Amendment XIV 7 Matt Lait, Scott Glover and Tina Daunt, “Scandal could taint hundreds of convictions,” L.A. Times, Feb. 17, 2000 12 Henry Weinstein and Jim Newton, “Civil Rights lawyers form a gathering storm for L.A.,” L.A. Times, March 1, 2000 12
The Supreme Court has instructed this court, on remand, to decide whether an amendment to the California Public Records Act, Cal. Gov't Code § 6254(f)(3), violates the constitutional rights of United Reporting Publishing Corporation ("United Reporting"). In a departure from California's broad right of access to government information under the Public Records Act, the 1996 amendment requires people seeking access to the addresses of people arrested to certify that they are among five classes of authorized requesters and that they will not use the address information for an unauthorized use. Supporters claim the law is needed to protect the privacy of arrestees and to save money. United Reporting publishes a newsletter that lists the names and addresses of arrestees. United Reporting challenged the law in U.S. District Court, which found it was an impermissible ban on commercial speech. On appeal, this court affirmed, ruling the law violated the First Amendment's protections for commercial speakers because it did not sufficiently advance the government's purported interests. In reversing this court's decision, the Supreme Court said United Reporting was not in a position to bring a facial challenge to the law's constitutionality. Furthermore, the Supreme Court said the case involved access to government information, not commercial speech, and the government had wide discretion to regulate access to information. The Supreme Court remanded the case for a decision as to whether the law, as applied to United Reporting, violated the U.S. Constitution. Amicus curiae respectfully urges this court to find that it does.
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of news reporters and editors dedicated to protecting the First Amendment interests and access rights of the news media. The Reporters Committee has provided information, representation, legal guidance and research in most significant federal and state appellate press-freedom cases in the past 30 years. As a special project, the Reporters Committee sponsors the Freedom of Information Service Center, which advises reporters on issues of access to government records and proceedings. The news media depend on the federal Freedom of Information Act and state public record laws to obtain primary information from government agencies and to report about government activities to their readers, listeners, and viewers. Journalistic principles demand that government statements not be accepted at face value. Journalists, therefore, rely on public record laws to obtain primary sources of information and to receive viewpoints independent of government control. Amicus curiae offers its 30 years of experience as an advocate for freedom of the press to assist this court in finding that United Reporting is entitled to receive and use the public records at issue in this case.
California law enforcement agencies denied United Reporting access to address information on July 1, 1996, because United Reporting did not make the declarations required by Cal. Gov't Code § 6254(f)(3) that it would use the information only for the authorized uses. The conditions the law imposes on the public's right of access are entirely content based, and the government is unable to show that a compelling interest supports the law or that the law is narrowly tailored to advance its interest. The high court specifically left undecided the issue of whether the law violated the equal protection clause of the Fourteenth Amendment. The court also left open the question of whether the law was unconstitutional as applied to United Reporting. These are the questions this court must now decide. Amicus curiae respectfully urges this court to find Cal. Gov't Code § 6254(f)(3) violates United Reporting's constitutional rights. Additionally, amicus curiae urges this court to recognize that the public has a right of access to arrestee addresses.
I. The California statute violates the equal protection clause of the United States Constitution because it is a content-based restriction on speech As a publisher of information identifying people arrested by law enforcement, United Reporting is engaged in constitutionally protected speech. Cal. Gov't Code § 6254(f)(3) violates the U.S. Constitution's equal protection clause by discriminating against individuals who would use government-supplied information for non-favored uses. United Reporting's right to seek access under the law is unclear, as the law is impermissibly vague. California's Public Records Act provides the public with a broad right of access to government information. Cal. Gov't Code § 6250 et seq. The Legislature has described the public's right to monitor government activities as a "fundamental and necessary right of every person in this state." Cal. Gov't Code § 6250. In accordance with this philosophy, the Legislature has granted the public access to myriad kinds of information about law enforcement and the subjects of its activities. Cal. Gov't Code § 6254. The amendment to the Public Records Act eviscerates public access to important law enforcement information. Cal. Gov't Code § 6254(f)(3) does two things. First, it requires people seeking access to arrestee addresses to swear under penalty of perjury that they will use the information only for an authorized purpose, which includes journalism. Second, it requires those people who receive the information to swear they will not use it for commercial purposes. Both of these conditions are content-based restrictions on speech, as they prefer certain classes of speech over others. Cal. Gov't Code § 6254(f)(3) conflicts with the constitution's guarantee of equal protection and must be struck down. Once a government grants the public access to a particular place or document, it cannot discriminate against those individuals with whom it disagrees and deny them the same right of access everyone else is afforded. See e.g., Police Dept. v. Mosley, 408 U.S. 92 (1972)("[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.") This law does just that. On its face, the law seeks to deny access to information based on the intended use. Cal. Gov't Code § 6254(f)(3) discriminates against California citizens who will use the address information for a purpose other than one of the authorized uses: scholarly, journalistic, political, governmental, or investigative. Use can only be determined or anticipated by evaluating the content of the speech. In effect, the law says that once a person has been given access to the information that person can use the information only for government-sanctioned uses. The distinctions between uses are based solely on the content of the speech: whether the speech is journalistic or entertaining; political or personal; scholarly or commercial. The Supreme Court has deemed such content-based restrictions constitutional only if they can survive strict-scrutiny analysis: The law establishes a narrowly tailored solution to a compelling state interest. See e.g., Simon & Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991). This court has found the law's purported interest -- protecting the privacy of people arrested -- was substantial. But that interest does not meet the higher threshold required in this case: that protecting an arrestee's privacy is a compelling interest given the Supreme Court's ruling in Paul v. Davis, 424 U.S. 693 (1976)(the government does not have a legitimate interest in protecting the privacy of arrestees), and this court's earlier finding that the law did not materially advance the government's interest. The law fails to meet strict scrutiny, and its continued application violates the constitution's guarantee of equal protection. Several courts have addressed this issue and have ruled that government may not discriminate in deciding to whom it grants access. The leading case on this subject is McCoy v. Providence Journal Co., 190 F.2d 760 (1st Cir. 1951), in which a city granted access to government records to one newspaper but denied access to a competing one. "[C]learly the refusal of the defendants to accord the plaintiffs their right of inspection while granting such right to a competitor ... constitutes a denial of equal protection of the laws." Id. at 766. See also, Quad-City Community News Service, Inc. v. Jebens, 334 F. Supp. 8, 15-16 (S.D. Iowa 1971)("Defendant's denial of access to Quad-City to records available to other media presents an obvious case of denial of equal protection of the law in violation of the Fourteenth Amendment of the federal Constitution. ... Quad-City is entitled to the same right of access as other citizens."). II. The California statute violates the United States Constitution as applied to United Reporting because it is impermissibly vague The Supreme Court ruled that United Reporting could not facially challenge Cal. Gov't Code § 6254(f)(3) because the company had shown no injury suffered as a result of the law. The court cited the company's decision not to request the address information as proof that there was no injury. Under the statute, a requester must certify, under penalty of perjury, that he or she will use the address information only for an authorized purpose. Whether United Reporting could have upheld such a promise is unclear. United Reporting's decision not to request the information is reasonable given the vagueness of the law, the uncertainty of United Reporting's status as a requester, and the possibility of a perjury charge. While the law purports to limit access to specific classes of people, the scope of these classes is unclear. A law is vague if its language is not specific enough to put a person on notice that a particular act is proscribed. United States v. Petrillo, 332 U.S. 1, 8 (1947)("The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more."); see also, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). The Supreme Court has said vague laws run afoul of the constitution because of the chilling effect they can have:
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Such vagueness has had a "chilling effect" on United Reporting's ability to request the address information and subsequently use it. At issue in this case is the term "journalistic." The law itself does not define what it intended this term to include. United Reporting was not given proper notice whether it would be allowed to request the information and to use it for a journalistic purpose. Furthermore, vagueness raises the specter of discriminatory application of the law:
Id. at 108-109. Courts have been reluctant to decide who is a journalist -- and for good reason. Branzburg v. Hayes, 408 U.S. 665, 703-04 (1972)(defining "categories of newsmen [is] a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer just as much as the large, metropolitan publisher.") The Second Circuit attempted to define who was a journalist -- at least for issues of privilege -- in von Bulow v. von Bulow, 811 F.2d 136 (1987). The court focused on whether the person's conduct was journalistic rather than on whether he or she used a particular medium such as newspapers or television. A journalist was someone who intended to disseminate the information before he accessed the information and who engaged in traditional news-gathering techniques. The Circuit Court for the District of Columbia elaborated on the calculus two years later with National Security Archive v. U.S. Dep't of Defense, 880 F.2d 1381 (1989), which involved a non-profit, research group's claim that it was a "representative of the media" and entitled to a fee waiver for a federal Freedom of Information Act request under 5 U.S.C. § 552. Journalism, according to National Security Archive, involves editing information that is gathered for publication, regardless of whether the action is done by a traditional news outlet. "A representative of the news media is, in essence, a person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." Id. at 1387. These cases make it clear that defining what is "journalistic" is difficult. Amicus curiae contends that United Reporting engages in journalism under the definitions from the cases cited above. But the varying definitions for "journalistic" gives the government considerable room to discriminate against speakers with whom it disagrees by denying them access to important information. United Reporting could have committed perjury had it applied for the address information and a narrow definition of "journalistic" purpose been applied. That the term "journalistic" is left undefined and vague calls into question the constitutionality of Cal. Gov't Code § 6254(f)(3) as applied to United Reporting. The public's right of access to arrest information has been recognized for centuries as a way to ensure citizens are not subjected to secret arrests:
Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 437-438 (1979). Government performs many functions on behalf of its constituents. But none is more deserving of public scrutiny than its law enforcement powers:
Newspapers, Inc., supra, 89 Wis. 2d at 436. From the moment a police officer arrests a citizen to the time a jury decides the fate of a defendant, the public -- and the press, serving as the public's representative -- has a particular interest in monitoring law enforcement and the criminal-justice system:
Mills v. Alabama, 384 U.S. 214, 218-19 (1966). One need look no further than the current corruption scandal rocking the Los Angeles Police Department for proof that the public must not be shut off from information about police activities. Dozens of police officers assigned to the Rampart Division's anti-gang task force have been accused of not only framing innocent civilians but also of covering up unjustified use of force and shootings. Almost 100 cases have already been identified as tainted, and the civil-liability lawsuits that are sure to follow are expected to cost the city more than $125 million. Law enforcement records are not ordinary government records, and the public deserves a broad right of access to them. See e.g., Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 186 (App. Ct. 1975)("We hold the press and the public have a constitutional right of access to information concerning crime in the community, and to information relating to activities of law enforcement agencies."). Criminal trials are public because the Sixth Amendment requires them to be public. The Supreme Court reversed course and recognized a right of press access to criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980)("People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."). Important to the Supreme Court in Richmond Newspapers was the long standing history and tradition, dating back to the founding fathers, of public access to criminal trials. "What this means is that the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that Amendment was adopted." Id. at 576. The same policy and historical arguments that support public access to criminal trials also support a right of public access to law enforcement records in general and arrest records in particular. Amicus curiae urges this court to recognize a common law right of public access to police arrest records. A criminal arrest and criminal trial are part of the same process. The events of each occur on a continuum. The strong policy and historical arguments that support the press' right of access to criminal trials also supports a right of access to law enforcement records. This court would be well within its discretion to recognize such a right of access. Amicus curiae respectfully urges this court to find that (1) Cal. Gov't Code § 6254(f)(3) is an unconstitutional content-based restraint on speech and violates United Reporting's right to equal protection under the law; (2) the law is impermissibly vague; and (3) the public has an important interest in free and open access to arrest records.
Dated: Arlington, Virginia Respectfully submitted, March 21, 2000
Gregg P. Leslie, Esq. Counsel of record Lucy A. Dalglish, Esq. Byron R. Brown, Esq. The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Drive Suite 900 Arlington, VA 22209 (703) 807-2100
I hereby certify that on this 21st day of March, 2000, copies of the foregoing Brief Amicus Curiae were sent by overnight delivery, via FedEx, to: Attorney for Plaintiff-Appellee:
Guylyn R. Cummings
James K. Hahn
Gregg P. Leslie, Esq. Counsel of Record The Reporters Committee For Freedom of the Press 1805 N. Fort. Myer Drive Suite 900 Arlington, VA 22209 (703) 807-2100
|