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Law restricting commercial access to records unconstitutional

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Law restricting commercial access to records unconstitutional 07/27/98 NINTH CIRCUIT--A California law barring release of addresses of arrested persons for…

Law restricting commercial access to records unconstitutional

07/27/98

NINTH CIRCUIT–A California law barring release of addresses of arrested persons for commercial but not other uses is an unconstitutional restriction on free speech, a unanimous panel of the U.S. Court of Appeals in San Francisco (9th Cir.) ruled in late June.

The court said that if the government denies access to the addresses by persons wanting to make commercial use of them, while allowing disclosure for scholarly, journalistic, political or governmental reasons, it curbs “non-preferred” speech in violation of the First Amendment.

United Reporting Publishing Corp., a private publishing service in Rancho Cordova, Calif., collects and sells names and addresses of arrested persons to attorneys, insurance companies, drug and alcohol counselors, driving schools and other customers. Believing that the California law would put it out of business, United sued law enforcement agencies all over the state in federal district court in San Diego to enjoin enforcement of the act first in 1994 when it passed and then in 1996 when it became effective. That court ruled for United in November 1996.

The Los Angeles Police Department appealed, arguing that because of United’s business interests, the court could only consider the limited First Amendment protection for commercial speech. It said that commercial speech can be regulated if the state identifies a substantial interest to be protected and shows how the law will further that interest.

The LAPD said there is a substantial interest in eliminating the invasion of privacy suffered by arrested persons who must receive unsolicited direct mail, noting that cutting off access to the records by commercial entities would advance that interest.

United denied that asking for government records could be “commercial speech.” Before enactment of the law, the addresses had been available to anyone. Singling out commercial entities and denying them records was a First Amendment violation unrelated to commercial speech, it said.

The appeals panel considered United’s use to be commercial speech, but said that the privacy interest in addresses already available to others is not a substantial interest justifying the withholding of the records. (United Reporting Publishing Corp. v. LAPD; Attorney for United: Guylyn Cummins, San Diego)