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States can limit access to arrest information based on intended use

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    NMU         U.S. SUPREME COURT         Freedom of Information         Dec 7, 1999    

States can limit access to arrest information based on intended use

  • A California law that allows access to arrest information to certain users, but denies access to that same information to commercial users, does not interfere with free speech rights.

A California law that only allows public access to the addresses of arrestees to users who swear they will not use the address information to sell a product or service does not violate First Amendment free speech protections, the U.S. Supreme Court ruled Dec.7.

By a 7-2 vote, a majority of the Court found that the law, on its face, is not an unconstitutional restriction on 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 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.

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 on grounds that it restricts constitutionally protected speech, namely 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 overturning the lower courts’ decisions, a majority of the U.S. Supreme Court held only that the law is constitutional on its face. But in separate concurrences, Justices Antonin Scalia and Ruth Bader Ginsburg drew different conclusions on whether the law is unconstitutional specifically as it is applied to United Reporting, with Scalia suggesting that it may be unconstitutional in that respect.

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 was also unconstitutional as applied to it. Stevens, however, agreed that the law involved only access to information — not constitutionally protected commercial speech.

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

(Los Angeles Police Dep’t v. United Reporting Publishing Corp.; Counsel for United Reporting: Guylyn Cummins, San Diego)

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© 1999 The Reporters Committee for Freedom of the Press

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