Amicus Curiae Brief — Los Angeles Police Dept. v. United Reporting Publishing Corp.

” in

Supremes Court, Uh |

FILED

APR 30 1999

No. 98-678 THE CLERK

In the Supreme Court of the Anited States

OCTOBER TERM, 1998

Los ANGELES POLICE DEPARTMENT, PETITIONER

UNITED REPORTING PUBLISHING CORPORATION

ON WRIT OF CERTIORARI!

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicit *(renera!

("nus avi Record

DAVID W. OGDEN

Acting Ass:stant Attorney

(;enera

EDWIN S. KNEEDLER

De puty Sol “tor (rn

EDWARD C. DUMONT

Ass stant fo the Solicitor

(re nerd

LEONARD SCHAITMAN

JOHNS. KOPPE!

Attorneus

De partment of Just ce

Wa bir gtr fi. DC ~

LOL) O14

Pe TORRES LE ERTL I STOEL ER A MS Eu

\)

QUESTION PRESENTED

Whether the First Amendment prohibits California from

providing that the personal addresses of crime victims and

arrested suspects, collected and maintained in its law en-

forcement records, will be released to third parties only for

certain specified purposes, and in particular only on the

condition that the addresses “not be used directly or in-

directly to sell a product or service.”

TABLE OF CONTENTS

a

EN

EE

Argument:

California’s refusal to disclose, for commercial

use, home addresses of persons whom its

officers have arrested, or who have been the

victims of crimes, does not violate the First

SII sridttsirerrnnrtnnstenennenpneeenmmnnsnememnneenen

A. Freedom of speech does not imply a

general constitutional right of access to the

government records at issue in this case ........

B. This case does not involve a government

restraint on commercial speech .............00000+

(. California’s decision to make personal ad-

dress information that was gathered

through public processes available for

limited purposes, but not for commercial

use, does not violate the First Amend-

EEA SE a ae

TABLE OF AUTHORITIES

Cases:

Arkansas Writers’ Project, Inc. v. Ragland,

en

Bibles v. Oregon Natural Desert Ass'n, 519 U.S. 355

Bridges v. California, 314 U.S. 252 (1941) ...cccccceeee

Central Hudson Gas & Elec. Corp. v. Public Serv.

Comm'n, 447 U.S. 557 (1980) .......cccccccccceeees 4,9, 15, 17,2

(IIT)

IV

~ Cases—Continued: Page

Cincinnati v. Discovery Network, Inc., 507 U.S.

—— 21

Department of the Air Force v. Rose, 425 U.S. 352

| 13

Edenfield v. Fane, 507 U.S. 761 (1998) .......c.ccccceeseseeseeee 17

FEC vy. International Funding Inst., Inc., 969

F.2d 1110 (D.C. Cir.), cert. denied, 506 U.S. 1001

en 16, 18, 19, 20

Florida Bar v. Went For It, Inc., 515 U.S. 618

COED ecencsennenesnssnesesmmnsenemeeemenne 4, 23, 24, 25

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

| 17

Gannett Co. v. DePasquale, 443 U.S. 368 (1979) ......... 13,14

Glickman v. Wileman Bros. & Elliott, Inc., 521

OFT of, 16, 17

Globe Newspaper Co. v. Superior Court, 457 U.S.

SD CID cenitererennrenestremennmanssnmnsstnmemmmenens 13

Houchins v. KQED, Inc., 438 U.S. 1 (1978) ............ 12, 13,14

Lanphere & Urbaniak v. Colorado, 21 F.3d 1508

GRR GR. FEED cecennsmreneresesrenssiesssanemennn 18, 25

Maher v. Roe, 432 U.S. 464 (1977) ......cccccceeneneesnens 17, 18, 19

NEA v. Finley, 118 S. Ct. 2168 C1998) .......ccccceeceee 17, 18,19

New York Times Co. v. Sullivan, 376 U.S. 254

| 22

Nixon v. Warner Communications, Inc., 435 U.S.

ee 12, 13, 14

Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447

CRED cennnetsenemnunttinemniinnntie ttiegnnp 6

Pennsylvania v. Muniz, 496 U.S. 582 (1990) 2.0... cccceceee 23

Perry v. Sindermann, 408 U.S. 593 (1972) ....ccccccccceseeneeees 17

Press-Enterprise Co. v. Superior Court, 464 U.S.

ee 13

Cases—Continued: Page

Regan v. Taxation With Representation, 461 U.S.

540 (1983) ........... ee 16, 17, 18, 19, 20

Reporters Committee for Freedom of the Press v.

United States Dep't of Justice, 831 F.2d 1124

(D.C. Cir. 1987), rev'd, 489 U.S. 749 (1989) 0... 14, 24,

25, 26

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

SD GED cccescssnttstiteentntensenninnmeammn 13

Rubin v. Coors Brewing Co., 514 U.S. 476

a 7,21

Rust v. Sullivan, 500 U.S. 173 (1991) 2.0.0... ccccceseeeeeeeeeens 18,19

Seattle Times Co. v. Rhinehart, 467 U.S. 20

CED cceccrernemetnneensetningeenmmenemnemmnnemmannnaes 12, 23

Shapero v. Kentucky Bar Ass'n, 486 U.S. 466

(1988) . : ; soninimesonennabecantshamnensenie 17

Speiser v. Randall, 357 U.S. 513 (1958) .......ccccceceeeeeneneees 17

United States v. Kokinda, 497 U.S. 720 (1990) ............ 20, 27

United States Dep't of Defense v. FLRA,

51@ U.S, 487 (1994) .accccccncescccccccssssoccccnsvseesccesnsssees 12, 22, 23, 24

United States Dep't of State v. Ray, 502 U.S.

| 12

Valley Broad. Co. v. United States, 107 F.3d 1328

(9th Cir. 1997), cert. denied, 118 S. Ct. 1050

a 7

Virginia State Bd. of Pharmacy v. Virginia Citizens

Consumer Cowneil, 425 U.S. 748 (1976) ......cccccceceeeeeereeees 17

Constitution, statutes and regulations:

U.S. Const.:

ee passim

RON WE ccccecerrnnenenseenseesnenennernnnmnennnnmnmnmenanmeitite 13

PD: 3, 11

Oe 3

Oe 3

Driver's Privacy Protection Act of 1994, 18 U.S.C.

STEED cesensncecnesnsiensetausesddeseiintiatsinininesinbsbihhintabioanaataiinmmnesinennstne 2

VI

Jn tke Supreme Court of the Gnited States

Statutes and reguiations—Continued: Page OCTOBER TERM, 1998

,

Ethics in Government Act of 1978, 5 U.S.C. App.

101 et seg.:

5 U.S.C. App. 105 (1994 & Supp. ITT 1997) ......... ee |

5 U.S.C. App. 105(C)(1) secccsscscsscccseeseesoseseesesesesssnseseeeen 12 No. 98-678

Federal Election Campaign Act of 1971, 2 U.S.C. 438 | Los ANGELES POLICE DEPARTMENT, PETITIONER

GEO TRG. GES BED CD ccenecssscscnsesnssesesemsnsssnssenssenssseemesessesees l

Federal Service Labor-Management Relations y,

PUEDE CHICO cccanicscnsscnssssctnctenissossonencensenssane 12

Freedom of Information Act, 5 U.S.C. 552 (1994 & U ; = ;

LAL LED LETT 1,12 NITED REPORTING PUBLISHING CORPORATION

Presidential Records Act of 1978, 44 U.S.C. 2201

SD. cenenennstnerenneransenteemestnasemencsnengpaeean 12

Privacy Act of 1974, 5 U.S.C. 552a (1994 & Supp. ill ON WRIT OF CERTIORARI

SED cncnsesstasenasssnsapangpesmnnnsssinmenanmemmipenntsuememnetinennn 12 TO THE UNITED STATES COURT OF APPEALS

Social Security Act, 42 U.S.C. 301 et seq.: POR THE NINTH CIRCUIT

gt ee papeerensensemscenpenemn l

Ga aes TEED cxncettntecsecsemntntipmmncesnmntnioemmansentnninnes 2

42 U.S.C. 1983 (1994 & Supp. IT 1997) .0..........cesececesseeeeeeeeees 3 BRIEF FOR THE UNITED STATES

Cal. Gov't Code (West Supp. 1999): AS AMICUS CURIAE SUPPORTING PETITIONER

TIED cnconencnnnsnestentienisinineunevtetienmnmensionmemmnan v4

STITT atrsernetederterasaneatianeemmnnnnnntinaniuesemenenetiameussenatintn . 10, 28

ee 2

ie ~ a INTEREST OF THE UNITED STATES

ET TETERR TESST ce ene eee EOD , passin Federal law provides for public access to federa! govern-

5 C.F.R. 2634.503 quasecesensnessasesseseeteTenereeseTeeNaseUsENeseseNeOeTEnesees — ] ment records under a variety of circumstances. , eu, €.9., 5

82 C.PLR.: U.S.C. 552 (1994 & Supp. III 1997) (Freedom of Information

—— ST a ee PD 1 Act); 2 U.S.C. 438 (1994 & Supp. III 1997) (Federal Election

TD siciieincicctiadinebinisisiinadesigeaindiniatihseitiedilian 1 Campaign Act of 1971); 5 U.S.C. App. 105 (19% & Supp. III

45 C.F.R.: 1997) (Ethics n Government Act of 1978 42 U.S.C. 1306

TET ree en eT ET TE Eee l (Social Security Act): 5 C.F.R. 2634.403; 32 C.F.R. 84.21; 32

ERRATIC Oran 1 C.F_R. Pt. 1293, App. D; 45 CFR. 205.50; 45 CPLR. 706.24;

GE GT lie QD ccccenareserenstsereemmmsemmmmnenrennentasemmannenemeens 1 47 C_F.R. 0.460. Each such provision places some restric-

Miscellaneous: tions on puble© aceese, and seme contain “commercial pur-

pose” restrictions #milar te the one at issue in this case.

yr * Sesamettlp SaRROENL REC: ade 1 See, eg., 2 USC. 488 (1994 & Supp. III 1997); 5 U.S.C. App.

(1)

&

:

105(c)(1). Federal law also restricts the conditions under

which state authorities may release certain information,

including names and addresses, for commercial or other

purposes. 18 U.S.C. 2721 (Driver’s Privacy Protection Act of

1994); 42 U.S.C. 1306a (Social Security Act); see Reno v.

Condon, petition for cert. pending, No. 98-1464. The United

States accordingly has a strong interest in the proper

analysis of the validity of such restrictions under the First

Amendment.

STATEMENT

1. Before 1996, California law generally required each

state and local law enforcement agency to “make public

* * * the fall name, current address, and occupation of

every imdividesi arrested by the agency.” Cal. Gov’t Code

§ 62541) (West 198). Effective July 1, 1996, the state

legislature amended Section 6254(f) to permit release of the

addresses of those arrested, and of crime victims, only where

the requester declares, under penalty of perjury, both that

“the request is made for a scholarly, journalistic, political, or

governmental purpose, or that the request is made for inves-

tigation purposes by a licensed private investigater,” and

that “la ddress information obtained pursuant to this para-

graph snall not be used directly or indirectly to sell a product

or service to any individual or group of individuals.”

$ 6254(f)(3) (West Supp. 1999). These restrictions apply only

to current address information; they do not affect the

availability of other information, such as the name, birth

date, occupation, and physical description of an arrested

individual or the factual circumstances of the arrest. See

§ 6254(f)(1) (West Supp. 1999).

Petitioner Los Angeles Police Department creates and

maintains arrest records, and makes them publicly available

in accordance with state law. Pet. App. 25a. Respondent

United Reporting Publishing Corporation is a private

service that seeks to provide its customers with periodic

reperts of the names and addresses of individuals recently

arrested by petitioner and other California law enforcement

agencies. Jbid. Respondents’ patrons include attorneys,

insurance companies, drug and alcohol counselors, religious

counselors, and driving schools, which may use the addresses

supplied by respondent “for many purposes, including

sending free literature to arrestees offering legal, drug, and

alcoho! counseling, cost information, and [information on]

statutory and regulatory deadlines and other information

concerning the crimes charged.” Br. in Opp. 5.

2. Respondent sued petitioner and others in federal

district court seeking declaratory and injunctive relief under

42 U.S.C. 1983, contending that the restrictions California

bas placed on the release of address information from arrest

and crime reports wolate the First Amendment to the

United States Constitetion, as applied to the States by the

Fourteenth Amendment, and the Equa! Protection and Due

Process Clauses of the Fourteenth Amendment. Pet. App.

25a-26a; see C.A. E.R. 1-9 (Complaint). The district court

granted summary judgment in favor of respondent, holding

that the State’s restrictions violate the First Amendment.

Pet. App. 10a-23a.

The district court recognized that “the First Amendment

does not provide plaintiff «.th a blanket constitutional right

of access to arrestee addresses,” and that “the state could

constitutionally prevent everyone from having access to this

information.” Pet. App. 14a. The court concluded, however,

that by “mak[ing] a!! arrestee information public, but then

limit[ing] access only [on the part of] those who plan to use

arrestee addresses ‘n commercial speech,” the State has

“(fjunctionally * * * [imposed] a limitation on commercial

speech.” Ibid. In the court’s view, because “(t]he govern-

ment is the only source of this information and by statute is

disseminating it to everyone except commercial users”

(ibid.), the State’s restrictions amount to “a content-based

indirect limitation on commercia: speech which implicates

the First Amendment” (id. at 16a). The court accordingly

turned to the four-part test adopted by this Court in Central

Hudson Gas & Electric Corp. v. Public Service Commission,

447 U.S. 557 (1980), for use in analyzing restrictions on

commercial speech. Pet. App. 16a-22a.

Applying that test, the court first noted that there was no

contention that respondent’s “proposed use of [address]

information” would be misleading or unlawful. Pet. App.

16a. The court also accepted the substantiality of two per-

tinent governmental interests: mitigating the fiscal and ad-

ministrative burden of processing information requests, and

protecting recently arrested individuals from having the

addresses they provided to the police used to subject them

to commercial solicitation in their homes. Jd. at 17a. The

court rejected, however, the argument that the commercial-

use restriction imposed by Section 6254(f)(3) would advance

those interests in a “direct and material way.” /d. at 18a; see

id. at 17a-22a. For essentially the same reasons, the court

also held that there was no “reasonable fit” between the

State’s asserted ends and the means it had chosen to

accomplish them. /d. at 22a.

With respect to fiscal interests, the court thought it

“doubtful” that the address restriction would save the gov-

ernment money, because agencies would still have to provide

address information to authorized noncommercial users, and

other information to all users. Pet. App. 18a. “The simple

omission of addresses [for commercial requesters] will not

minimize * * * agency expenses.” /bid. With regard to the

State’s interest in “protecting the privacy and tranquility of

its residents,” the court recognized (ibid.) that in Florida

Bar v. Went For It, Inc., 515 U.S. 618, 630 (1995), this Court

upheld a prohibition on direct-mail solicitations by lawyers

within 30 days of an accident, on the basis of the State’s

interest in protecting “the personal privacy and tranquility

of * * * gitizens from crass commercial intrusion by

attorneys upon their personal grief in times of trauma.” The

district court distinguished Florida Bar, however, on the

grounds that California’s restriction on commercial use of

addresses is “permanent,” and that in this case an arrested

person’s interest in obtaining “immediate legal assistance

* * * so heavily outweighs any concern that arrestees may

find such attorney solicitations offensive that the [privacy]

justification borders on the disingenuous.” Pet. App. 19a.

The court found it “hard to see how direct mail solicitations

invade the privacy of arrestees,” who are free to throw them

away, and it noted that Section 6254(f)(3) would allow

“potentially much more pervasive invasions of privacy,” such

as having an arrested person’s name and address “published

in newspapers, broadcast on television, and/or obtained by

an employer or even an enemy.” /d. at 21a.

3. The court of appeals affirmed. Pet. App. 24a-36a.'

After briefly discussing “the protection provided under the -

First Amendment to what has been commonly designated

‘commercial’ speech” (id. at 26a-27a), the court rejected (id.

at 27a-29a) respondent’s contention that “it uses arrestee

[address] information to engage in fully-protected non-

commercial speech, the regulation of which is subject to

strict scrutiny” (id. at 27a). To the contrary, the court rea-

soned that respondent’s “speech would be considered com-

mercial under either a broad or a narrow definition,” because

respondent “sells arrestee information to clients; nothing

more.” Jd. at 29a. The speech involved in that “pure eco-

nomic transaction,” the court concluded, is “entitled to only

! Although the Attorney General of California and a number of state

law enforcement agencies were parties to the district court proceedings,

only petitioner appealed from the district court’s judgment. See Pet. App.

9a, 26a n.1; see also Pet. 2.

‘a limited measure of protection, commensurate with its sub-

ordinate position in the scale of First Amendment values.’”

Id. at 29a (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S.

447, 456 (1978)).

Assessing California’s restriction on the release of

arrestee addresses under this Court’s Central Hudson test

(Pet. App. 29a-36a), the court of appeals agreed with the

district court that “the speech at issue is neither illegal nor

misleading” (id. at 30a) and that the State has a “substantial”

interest in protecting the privacy of those who have been

arrested, including their “ability to avoid intrusions” in their

homes (id. at 31a).* The court also agreed, however, that the

State’s restriction “does not directly and materially advance

the government’s interest in protecting the privacy and

tranquility of its residents.” Jd. at 32a; see id. at 34a.

The court first rejected petitioner’s argument that re-

stricting the release of addresses would “reduce[] the

opportunity for commercial interests to create and maintain

an unreliable criminal history information bank.” Pet. App.

32a. Finding in the record on summary judgment “no

evidence whatsoever” that commercial interests were likely

to create such data banks, the court dismissed that potential

harm as “no more than speculation and conjecture, which is

insufficient to sustain a restriction on commercial speech.”

Ibid.

2 The court held that petitioner had waived, on appeal, any challenge

to the district court’s holding that the State’s restrictions on the release of

address information did not directly and materially advance a govern-

mental interest in controlling costs. The court therefore considered “the

only [governmental] interest at issue” on appeal to be “the asserted gov-

ernmental interest in protecting the privacy of arrestees.” Pet. App. 30a-

3la & n.3. (Note that the carryover paragraph at pages 30a-3la is

misprinted as part of the text of the opinion; in the original, that language

appears at the erd of footnote 3.)

The court acknowledged that the State’s interest in reduc-

ing “direct intrusion({s] into the private lives and homes of

arrestees and victims” by declining to authorize release of

their addresses for commercial purposes was “somewhat

more weighty.” Pet. App. 32a-33a. It concurred, however,

in the district court’s conclusion that “(t]he fact that journal-

ists, academicians, curiosity seekers, and other noncom-

mercial users may peruse and report on arrestee records

* * * belies [petitioner’s] claim that the statute is actually

intended to protect the privacy interests of arrestees.” Jd.

at 33a. “Instead,” the court observed, the State’s restriction

on disclosing addresses “appears to be more directed at

preventing solicitation practices.” Jbid. The court declined

to accord that legislative goal great weight, both because it

found it “hard to see how direct mail solicitations invade the

privacy of arrestees,” and because, the court reasoned, “the

privacy of arrestees [is] not invaded by the solicitation itself,

but by the solicitor’s discovery of the information that led to

the solicitation.” /bid.

Ultimately, the court concluded that “(t]he myriad of

exceptions to § 6254(f)(3) precludes the statute from directly

and materially advancing the government’s purported pri-

vacy interest.” Pet. App. 34a. The court relied heavily on

Rubin v. Coors Brewing Co., 514 U.S: 476 (1995), which

struck down a federal prohibition on the disclosure of alcohol

content on beer labels on the ground that the prohibition

could not “directly and materially advance its aim” in view of

“other provisions of the same act [that] directly under-

mine[d] and counteract[ed] its effects.” Pet. App. 34a-35a

(quoting Coors, 514 U.S. at 489). Citing Coors and its own

decision in Valley Broadcasting Co. v. United States, 107

F.3d 1328 (9th Cir. 1997), cert. denied, 118 S. Ct. 1050 (1998),

which invalidated a federal ban on broadcast advertisements

for casino gambling “in light of the numerous exceptions to

the ban” (Pet. App. 35a), the court of appeals felt “compelled

to hold that the numerous exceptions to § 6254(f)(3) for jour-

nalistic, scholarly, political, governmental, and investigative

purposes render the statute unconstitutional under the First

Amendment.” J/bid.’ Believing that “{hlaving one’s name,

crime, and address printed in the local paper is a far greater

affront to privacy than receiving a letter from an attorney,

substance abuse counselor, or driving school eager to help

one overcome [one’s] present difficulties (for a fee, natu-

rally),” the court concluded that “[t]he exceptions to

§ 6254(f)(3) ‘undermine and counteract’ the asserted govern-

mental interest in preserving privacy just as surely as did

the exceptions in Coors Brewing and Valley Broadcasting.”

Id. at 35a-36a. The court accordingly affirmed the district

court’s judgment invalidating California’s restriction on the

release of arrestee addresses for commercial purposes as “an

unconstitutional infringement of [respondent’s] First

Amendment rights.” Jd. at 36a.*

SUMMARY OF ARGUMENT

The First Amendment forbids enactment of any law

“abridging the freedom of speech, or of the press.” U.S.

Const. Amend. I. The freedoms it guarantees do not, how-

ever, include any general right to compel the public release

of information contained in government records, and there is

nothing to support recognition of any special right of access

in this case. To the contrary, California’s balancing of

privacy and other interests in determining under what cir-

cumstances to authorize release of personal address informa-

% The constitutionality of the advertising ban struck down in Valley

Broadcasting is presently before this Court in Greater New Orleans

Broadcasting Ass'n v. United States, No. 98-387 (argued Apr. 27, 1999).

4 In light of its holding that Section 6254(f)(3) failed the “direct

advancement” component of the Central Hudson test, the court did not

consider either the final prong of that test or respondent’s separate equal

protection and dve process claims. Pet. App. 36a nn.5-6.

tion from arrest and crime records is exactly the sort of

public policy decision that should be resolved by the political

branches of government.

The lower courts viewed California’s decision to make

address information available for journalistic, scholarly, and

other specified purposes, but not for purposes of commercial

solicitation, as an indirect limitation on respondent’s com-

mercial speech. They accordingly analyzed the constitu-

tionality of California’s rule under the test articulated by

this Court in Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980). This Court has

applied the Central Hudson test, however, only in cases

involving direct prohibitions on speech. This case involves

no such prohibition; and the fact that respondent and its

customers may find it more difficult or expensive to obtain

addresses if the government does not make that information

available imposes no greater burden on their right to speak

than is imposed on any speaker by the fact that it may cost

money to find and reach an audience. There is accordingly

no reason to review California’s disclosure rules under

Central Hudson.

The State’s decisions about the uses for which information

in public records should or should not be released are instead

properly analyzed under principles this Court has developed

in reviewing legislative decisions regarding the expenditure

of public funds—a context in which a government has wide

latitude to support or facilitate only activities that it

considers to be in the public interest. This case involves no

question of distinctions based on viewpoint; and the legis-

lative decisions embodied in the State’s disclosure rules

reflect reasonable accommodations between the public inter-

ests that may be served by disclosure in various contexts,

and the State’s interest in protecting the individuals in-

volved against unwarranted incremental invasions of their

privacy. Thus, for example, the State’s willingness to re-

10

lease address information requested for journalistic or

political purposes serves the public interest in open and

informed debate about governmental functions that lies at

the very heart of the First Amendment. On the other hand,

its decision not to make addresses available for purposes of

private commercial solicitation serves personal privacy

interests of a sort that, as this Court has previously recog-

nized, the State has a legitimate interest in protecting.

There is little support for the court of appeals’ conclusion

that the State’s willingness to make address information

available for some purposes makes it impossible for a

prohibition on disclosure for other uses to serve any state

interest in protecting privacy. To the contrary, California's

Legislature could reasonably conclude that the balance of

privacy costs and countervailing public benefits favored dis-

closure in the circumstances specified by Section 6254(f)(3),

but not disclosure for private commercial use. Rejecting that

legislative balancing of interests as unconstitutional would

require the State to adopt disclosure rules less protective of

core First Amendment values in order to prevent com-

mercial exploitation of personal information gathered

through its official processes.

ARGUMENT

CALIFORNIA’S REFUSAL TO DISCLOSE, FOR COM-

MERCIAL USE, HOME ADDRESSES OF PERSONS

WHOM ITS OFFICERS HAVE ARRESTED, OR WHO

HAVE BEEN THE VICTIMS OF CRIMES, DOES NOT

VIOLATE THE FIRST AMENDMENT

A. Freedom Of Speech Does Not Imply A General

Constitutional Right Of Access To The Government

Records At Issue In This Case

In Section 6254(f) of its Government Code, California has

provided that certain information gathered by its law

enforcement officers in the course of their duties—including

11

the names of persons arrested, the names of crime victims,

and the circumstances of reported crimes and arrests—may

be made available to any member of the public. Cal. Gov't

Code § 6254(f)(1)-(2) (West Supp. 1999). The State has

further provided, however, that the current address of a

crime victim or arrested person will be disclosed only for

“scholarly, journalistic, political, or governmental pur-

pose([s]” or to a licensed private investigator, and only on the

condition that the address “not be used directly or indirectly

to sell a product or service.” § 6254(f)(3) (West Supp. 1999).

Nothing in the First Amendment requires the State to make

such information from its files available at all, much less for

commercial use.”

The First Amendment forbids enactment of any law

“abridging the freedom of speech, or of the press.” U.S.

Const. Amend. I.° There is, however, an elementary distinc-

tion between an attempt to use governmental authority to

prohibit or penalize speech, and a decision not to make

available information in the possession of the government

that a would-be speaker does not presently possess, but

would like to obtain and then use in dealing or com-

municating with others.

5 Respondent's complaint alleges that Section 6254(f)(3) applies to bar

respondent's access to address information, and challenges the law's

restrictions as facially invalid under the federal Constitution. See C.A.

E.R. 5-6. The courts below accepted respondent's premise (see Pet. App.

14a, 28a-29a), as does the question presented in the petition. Pet. i. As

presented to this Court, therefore, this case involves no question con-

cerning the specific nature of respondent's activities, and there is no his-

tory of application or construction of the law by relevant state admini-

strative or judicial authorities.

® The strictures of the First Amendment apply to state governments

by operation of the Fourteenth Amendment. See, ¢.g., Bridges v. Califor-

nia, 314 U.S. 252, 267-268 (1941).

12

The First Amendment does not generally “mandate[] a

right of access to government information or sources of

information within the government’s control.” Houchins v.

KQED, Inc., 438 U.S. 1, 15-16 (1978) (plurality opinion) (no

right to inspect areas of county prison not otherwise open to

the public); see id. at 8-16 (plurality opinion); id. at 16

(Stewart, J., concurring in the judgment) (“The First and

Fourteenth Amendments do not guarantee the public a right

of access to information generated or controlled by govern-

ment.”); Pet. App. 13a (“The Constitution itself is neither a

Freedom of Information Act nor an Official Secrets Act.”)

(quoting Potter Stewart, Or of the Press, 26 Hastings L.J.

631, 636 (1975)); ef. Seattle Times Co. v. Rhinehart, 467 U.S.

20, 32 (1984) (noting that party that obtained information

through discovery in civil lawsuit had “no First Amendment)

right of access to information made available only for

purposes of trying [its] suit”). To the contrary, although a

limited, non-constitutional common law of access to public

records has been recognized in some circumstances, see

generally Nixon v. Warner Communications, Inc., 435 U.S.

589, 597-608 (1978), the area is one in which public policy has

traditionally been set through general or specific disclosure

statutes embodying considered legislative judgments about

what information should be released from government

records, to whom, and for what purposes. See, e.g., Freedom

of Information Act (FOIA), 5 U.S.C. 552 (1994 & Supp. III

1997); Privacy Act of 1974, 5 U.S.C. 552a (1994 & Supp. III

1997); Presidential Records Act of 1978, 44 U.S.C. 2201 et

seq.; United States Dep’t of Defense v. FLRA, 510 U.S. 487

(1994) (discussing interrelationship of FOIA, the Privacy

Act, and the Federal Service Labor-Management Relations

Statute, 5 U.S.C. 7101 et seq., in the context of a union

request for the home addresses of government employees);

United States Dep't of State v. Ray, 502 U.S. 164, 173-179

(1991) (release of certain interview reports without redaction

13

of identifying information would constitute a “clearly un-

warranted invasion of personal privacy” under FOIA);

United States Dep’t of Justice v. Reporters Comm. for Free-

dom of the Press, 489 U.S. 749 (1989) (same with respect to

FBI “rap sheets”); Department of the Air Force v. Rose, 425

U.S. 352, 355, 378-382 (1976) (ordering disclosure, under

FOIA, of “case summaries of [Air Force Academy] honor

and ethics hearings, [but] with personal references or other

identifying information deleted”).

The proposition that there is no constitutional right of

access to government information or proceedings is not un-

qualified. See Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 603-610 (1982) (public access to criminal trials).’

Nor has it been entirely uncontroversial. See, e.g.,

Houchins, 438 U.S. at 19, 27-38 (Stevens, J., dissenting);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 582-

584 (1980) (Stevens, J., concurring); id. at 584-589 (Brennan,

J., concurring in the judgment). This case does not, however,

7 The Court has recognized a qualified constitutional right of access to

judicial proceedings that have traditionally been held in public, with a

concomitant or alternative right of access to records of those proceedings.

See, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)

(access to voir dire proceedings or records thereof, subject to court’s

ability to protect privacy of potential jurors through properly justified and

tailored orders); Globe Newspaper Co., 457 U.S. at 603-610 (criminal

trials); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (same)

(plurality opinion); see also id. at 599 (Stewart, J., concurring in the

judgment) (“[I)t has for centuries been a basic presupposition of the

Anglo-American legal system that trials shall be public trials. * * * With

us, a trial is by very definition a proceeding open to the press and to the

public.”); but see Nixon v. Warner Communications, 435 U.S. at 608-610

(no First or Sixth Amendment right of access to physical copies of tape

recordings played at trial); Gannett Co. v. DePasquale, 443 U.S. 368 (1979)

(no constitutional right of access to pretrial proceedings, where trial judge

concluded that closure was necessary to protect defendant's right to fair

trial, and transcript was subsequently made available).

14

test any possible outer limits of the principle. Even pro-

ponents of a constitutional right to compel disclosure under

certain circumstances have agreed that any such right,

because its “‘stretch * * * is theoretically endless, * * *

must be invoked with discrimination and temperance,”

taking into account the structural reasons for recognizing

the right, and the particular nature of “the information

sought and the opposing interests invaded” in any given

situation. /d. at 588 (Brennan, J., concurring in the

judgment) (citation omitted). That analysis would not

support recognition of a right of access in this case, because

California’s decision not to release personal address

information, contained in its arrest and crime records, for

purposes of private commercial solicitation poses no threat

to the fundamental structural interest in “securing and

fostering our republican system of self-government.” /d. at

587 (Brennan, J., concurring in the judgment). It is, to the

contrary, a good example of exactly the sort of routine

disclosure decision that “involve[s] questions of policy which

generally must be resolved by the political branches of

government.” Houchins, 438 U.S. at 34 (Stevens, J.,

dissenting).

B. This Case Does Not Involve A Government Restraint

On Commercial Speech

The district court specifically recognized (Pet. App. 12a-

14a), and the court of appeals did not question, that there is

no general constitutional right of access to the address

information that California has declined to provide to

respondent. Both courts focused, however, on the fact that

California’s disclosure law makes the address of an arrested

person available (along with other information about the

arrest) to persons who request it for certain specified pur-

poses, while denying access to the address (although not to

any of the other information) to “those who plan to use

15

arrestee addresses in commercial speech.” Jd. at 14a; see id.

at 14a-l6a, 20a-2la, 27a-29a, 33a-36a. In the courts’ view,

that differential provision of access to address information,

based on its intended use by the requester, amounts to “an

indirect limitation on [the requester’s] commercial speech.”

Id. at 14a. Both courts therefore analyzed the State’s dis-

closure restriction under the test articulated by this Court in

Central Hudson Gas & Electric Corp. v. Public Service

Commission, 447 U.S. 557 (1980), for “the constitutionality

of government regulations limiting commercial speech.” Pet.

App. 29a.

The State’s restriction on disclosure is, of course, directed

in part at preventing the commercial use of addresses

obtained from the State’s arrest records and crime reports.

See Cal. Gov’t Code § 6254(f)(3) (West Supp. 1999) (pro-

hibiting use of disclosed addresses “directly or indirectly to

sell a product or service”). The restriction is not, however,

appropriately viewed, for First Amendment purposes, as a

restriction or burden on respondent’s speech.

Addresses from arrest records are valuable to respondent

(and its clients) not primarily because of their own intrinsic

speech value—any fact or idea that they themselves convey

—but rather because they can be used to find a particular

target audience that respondent’s clients want to contact.

The State’s non-disclosure rule is designed in large part to

prevent that instrumental use of addresses from its files.” It

may well be that respondent (and therefore its customers)

will be able to secure equivalent address information only at

greater cost, or in some cases not at all, if a state or local law

8 The State’s rule presumably would also prevent disclosure of

address information for the purpose of inclusion in a commercial database,

where its value might lie in linking the fact of arrest (or of being a crime

victim) to a personal record that might be sought by, for example,

prospective employers, lenders, or insurers.

16

enforcement agency does not make it available to them. The

fact remains, however, that California’s decision to make

addresses from its law enforcement files available for some

purposes but not for others “impose[s] no restraint on the

freedom of any [person or business] to communicate any

message to any audience.” Glickman v. Wileman Bros. &

Elliott, Inc., 521 U.S. 457, 469 (1997); see also Regan v.

Taxation With Representation, 461 U.S. 540, 546 (1983) (con-

ditioning tax-deductibility of contributions on organization’s

refraining from lobbying does not involve “regulat{ion of]

any First Amendment activity”); FEC v. International

Funding Inst., Inc., 969 F.2d 1110, 1113-1114 (D.C. Cir.) (en

banc) (federal law requiring disclosure of political contri-

butor lists but forbidding others to use those lists to solicit

contributions or for commercial purposes “cannot be said in

any sensible way to infringe upon the defendants’ first

amendment right to solicit contributions”), cert. denied, 506

U.S. 1001 (1992); id. at 1118-1119 (R.B. Ginsburg, J., con-

curring) (same statute cannot “credibly” be portrayed “as

one that impels [potential users] * * * to desist from” their

own First Amendment activity). That respondent and its

customers will, in the absence of disclosure by the govern-

ment, have to find other sources for the addresses of persons

to whom they would like to direct their solicitations imposes

no more of a burden on their First Amendment rights than

does the fact that they will have to buy the envelopes and

pay the postage. Compare Regan, 461 U.S. at £49-550 (“[A]

legislature’s decision not to subsidize the exercise of a

fundamental right does not infringe the right.”); /nter-

national Funding Inst., 969 F.2d at 1113 (prohibiting use of

disclosed information does net “impose any new burden

upon” prospective user, but “simply leaves undisturbed a

pre-existing barrier”).

This Court’s cases applying the Central Hudson test have

all involved government rules that directly prohibited ¢er-

17

tain kinds of speech. See, e.g, 44 Liquormart, Inc. v. Rhode

Island, 517 U.S. 484 (1996) (price advertising); Edenfield v.

Fane, 507 U.S. 761 (1993) (in-person solicitation); Shapero v.

Kentucky Bar Ass’n, 486 U.S. 466 (1988) (targeted direct-

mail advertising); Central Hudson, supra (advertising pro-

moting use of electricity); Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, 425 U.S. 748 (1976)

(price advertising); compare Wileman Bros., 521 U.S. at 469

& n.12 (distinguishing these cases on same ground). A simi-

lar analysis might be applied to material penalties imposed

on speech—an unusual tax imposed only on particular sorts

of advertising, for example, or the withdrawal of an other-

wise available government benefit (such as a business li-

cense) on the ground that the speaker had engaged in some

disfavored form of speech, or refused to endorse a govern-

ment-favored position. Compare, e.g., Perry v. Sindermann,

408 U.S. 5938, 597 (1972); Speiser v. Randall, 357 U.S. 513

(1958). This case, however, involves something quite dif-

ferent: a legislative decision that information developed and

possessed by the government itself should not be made

freely available for merely commercial use, whether or not

that use includes speech. There is no warrant for subjecting

that legislative decision about the appropriate uses of infor-

mation compiled on public authority, at public expense, and

for public purposes, to the sort of searching review that the

Court has previously applied only to direct governmental

restrictions on private speech. Compare NEA v. Finley, 118

S. Ct. 2168, 2179 (1998) (quoting Maher v. Roe, 432 U.S. 464,

475 (1977) (“There is a basic difference between direct state

interference with a protected activity and state encourage-

ment of an alternative activity consonant with legislative

policy.”)); Regan, 461 U.S. at 545-546 (distinguishing “pen-

alty” cases in the context of a government choice to support

some activities but not others).

18

C. California's Decision To Make Personal Address

Information That Was Gathered Through Public

Processes Available For Limited Purposes, But Not

For Commercial Use, Does Not Violate The First

Amendment

As noted above (see page 15, supra), the courts below

believed that California’s non-disclosure ruie was subject to

scrutiny under the Central Hudson test because it amounted

to a content-based discrimination against commercial speech.

See also, e.g., Lanphere & Urbaniak v. Colorado, 21 F.3d

1508, 1511-1513 (10th Cir. 1994) (adopting same threshold

analysis, although upholding restriction at issue). As we

have explained, however, although California’s disclosure

rules no doubt make it more difficult for respondent and its

clients to ascertain the addresses of members of their target

audience, that incidental effect does not amount to a

governmental restraint on commercial speech. The State’s

decisions about the uses for which information in public

records should or should not be released are instead properly

analyzed under principles this Court has developed in re-

viewing decisions by a legislature regarding the expenditure

of public funds. In that context, it is clear that a government

has “wide latitude” to support or facilitate only activities

that it considers to be in the public interest. See NEA v.

Finley, 118 S. Ct. at 2178-2179; Regan, 461 U.S. at 548

(heightened scrutiny does not apply “whenever Congress

subsidizes some speech, but not all speech”); Rust v.

Sullivan, 500 U.S. 173, 192-200 (1991); Maher v. Roe, supra;

International Funding Inst., 969 F.2d at 1115 (rejecting, in

context of constitutional challenge to prohibition against use

of disclosed information for solicitation or commercial pur-

poses, the argument that “if the Government facilitates some

type of speech, then its decision not to facilitate another,

related type of speech is subject to strict scrutiny”).

19

Even in subsidy or facilitation cases, this Court has cau-

tioned that “the Government may not ‘ai[m] at the suppres-

sion of dangerous ideas.’” NEA v. Finley, 118 S. Ct. at 2178

(quoting Regan, 461 U.S. at 548); see also Jnternational

Funding Inst., 969 F.2d at 1118-1119 (R.B. Ginsburg, J.,

concurripg). In NEA, for example, the Court observed that

“{ilf the NEA were to leverage its power to award subsidies

on the basis of subjective criteria into a penalty on dis-

favored viewpoints, then we would confront a different

case,” and that “if a subsidy were ‘manipulated’ to have a

‘coercive effect,’ then relief could be appropriate.” 118 S. Ct.

at 2178 (quoting Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221, 237 (1987) (Scalia, J., dissenting)). This case,

however, raises no such concern.

California has not provided for release of address infor-

mation for some journalistic purposes but not others, or for

some commercial purposes but not others, based on the

viewpoint of the requester—much less done so in a manner

that seeks to “leverage” its control over the information in

law enforcement files so as to have a coercive effect on

private speakers. The State has not provided that addresses

may be released to members of one political party but not

others, or to scholars who support the police but not others,

or otherwise endeavored, through its address disclosure

restrictions, to favor or disfavor any idea. It permits dis-

closure to anyone who requests address information for one

of the authorized purposes, and it forbids anyone to whom it

discloses addresses to use them to sell any “product or

service to any individual or group,” without regard to the

speech content of the product or service in question or the

viewpoint of the requester. Cal. Gov’t Code § 6254(f)(3)

(West Supp. 1999); see International Funding Inst., 969

F.2d at 1118 (R.B. Ginsburg, J., concurring) (federal election

iaw restriction on use of disclosed contributor lists for

20

solicitation or commercial purposes “does not differentiate

on the basis of the solicitor’s viewpoint”).°

Of course, distinctions drawn by government rules re-

garding the release of information must also, like other laws,

be rationally related to the pursuit of legitimate govern-

mental purposes, whether those rules are tested under the

First Amendment or under equal protection principles. See,

e.g., Regan, 461 U.S. at 546-551 (discussing both); cf. United

States v. Kokinda, 497 U.S. 720, 733 (1990) (claim that one

form of speech has been treated differently from others “is

more properly addressed under the equal protection compo-

nent of the Fifth Amendment”). Indeed, the court of

® The Court struck down a legislative distinction between commercial

and non-commercial speech in Cincinnati v. Discovery Network, Inc., 507

U.S. 410 (1993), which involved a city ordinance that permitted distri-

bution of newspapers through sidewalk newsracks, but prohibited similar

distribution of “commercial handbills.” See id. at 412-415. That case is

inapposite here, because unlike this one it involved a direct restraint on a

particular mode of speech in spaces freely open to the public. In any

event, Discovery Network's “narrow” holding reflected the Court’s conclu-

sion that the city’s distinction between commercial and non-commercial

publications bore “no relationship whatsoever to the particular interests

that the city hajd] asserted,” and rested on no more than a “bare assertion

that the ‘low value’ of commercial speech [was] a sufficient justification for

[a] selective and categorical ban.” Jd. at 424, 428; see also id. at 429-430.

As we explain below, California’s differentiation between commercial

solicitation and scholarly, journalistic, and other permitted uses rests on

reasonable legislative judgments about the public interest in facilitating

those different uses and the risks of harm that each of them might pose.

'© Neither court below reached respondent’s equal protection claim,

Pet. App. 22a, 36a n.6, although each court’s decision ultimately turned on

the conclusion that Section 6254(f)(3) subjects respondent to unjustifiably

disparate treatment. Accordingly, if this Court rejects (as it should) the

lower courts’ First Amendment analysis, it might be appropriate to vacate

the judgment below and to remand the case to give respondent the

opportunity to pursue any remaining equal protection claim. On the other

hand, the Court’s analysis of the reasonableness of California’s rules for

21

appeals’ decision in this case ultimately turned on the court’s

conclusion that the State’s decision not to permit disclosure

of addresses from its arrest and crime reports for commer-

cial purposes was not a “rational” way to serve the State’s

concededly important interest in protecting personal pri-

vacy, in view of the State’s willingness to disclose the same

information for “journalistic, scholarly, political, govern-

mental, and investigative purposes.” Pet. App. 35a. That is

incorrect.”

The disclosure rules’ set out in Section 6254(f)(3) appear,

indeed, to be designed to preserve public access to address

information from arrest and crime reports to the extent that

such access is likely to serve public interests, including the

interest in informed debate about government operations

that lies at the heart of the First Amendment. With the

exception of addresses of victims of certain specified crimes

(such as rape and other sexual assaults, child or spousal

First Amendment purposes may foreclose any facial equal protection

challenge.

1! The court of appeals relied heavily (Pet. App. 34a-35a) on this

Court’s decision in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), which

invalidated a federal statute that prohibited brewers from including

information about alcohol content on their product labels. Like Discovery

Network (see note 9, supra), Coors involved direct regulation of com-

mercial speech—in that case through a “unique and puzzling regulatory

framework” of different rules governing the labeling and advertising of

alcoholic beverages. 514 U.S. at 489. Applying heightened scrutiny under

Central Hudson, the Court found the complex of rules in question to be

“irrational{]” when considered as a whole. /bid.; see id. at 488-490. This

case, by contrast, does 1..t involve a direct regulation of speech, and the

state disclosure scheme at issue differentiates, in a limited regard, be-

tween certain non-commercial uses of address information from public

records and any use of that information for the purpose of “sell{ing] a

product or service.” That distinction was not at issue in Coors; and, as we

explain below, the legislative decisions reflected in the California scheme

are reasonable, both individually and taken as a whole.

22

abuse, stalking, and hate crimes), which are to be kept

completely confidential, the law requires that addresses be

disclosed, on request, not only for governmental purposes,

but also for scholarly or journalistic purposes. Those pro-

visions ensure that address information will be available in

aid of any inquiry undertaken with a view to monitoring or

evaluating government performance. Compare United

States Dep’t of Defense, 510 U.S. at 497 (In deciding whether

release of information would be an “unwarranted invasion of

personal privacy” under FOIA exemption, “the only relevant

public interest in the FOIA balancing analysis” is “the

extent to which disclosure of the information sought would

‘she[d] light on an agency’s performance of its statutory

duties’ or otherwise let citizens know ‘what their govern-

ment is up to.’”).

California’s provision for disclosure of addresses for “po-

litical” purposes, while seemingly unlikely to be frequently

invoked, further ensures that addresses will be available

whenever necessary to inform political debate—the preemi-

nent First Amendment value. See New York Times Co. v.

Sullivan, 376 U.S. 254, 269-271 (1964). Finally, a provision

concerning licensed private investigators allows for access in

a presumably limited number of cases in which address infor-

mation is germane to a legitimate, specifically focused

private investigation. In all of those situations, California’s

Legislature has determined that the State’s interest in

making information gathered by public authorities available

for public purposes outweighs its interest in protecting a

crime victim’s or arrested person’s residual privacy interest

in that specific address information.

The State has struck a different balance with respect to

requests for address information for private commercial pur-

poses—or for any other purpose not listed in Section

6254(f)(3), such as casual inquiries from members of the

public. In those circumstances, the California Legislature

23

evidently concluded that any interests served by free dis-

closure were outweighed by personal privacy concerns.

Compare Bibles v. Oregon Natural Desert Ass’n, 519 U.S.

355 (1997) (FOIA requester’s interest in obtaining Bureau of

Land Management mailing list in order to provide recipients

of BLM newsletter with additional information is not a

public interest weighing in favor of disclosure under FOIA

privacy exemption). That judgment is a reasonable one, and

it is entitled to considerable judicial deference.

The addresses at issue in this case are personal informa-

tion of a sort that this Court has previously recognized as

affected with a substantial personal privacy interest, which

the State may legitimately seek to protect. See United

States Dep’t of Defense, 510 U.S. at 500-501 (government em-

ployees’ interest in nondisclosure of home addresses out-

weighs any interest in disclosure cognizable under FOIA); ef.

Florida Bar v. Went For It, Inc., 515 U.S. 618, 626-632 (1995)

(state interest in protecting citizens from intrusion of direct-

mail offers to provide legal services shortly after accident or

disaster). The addresses in state arrest and crime records

were gathered by public authorities, often upon official de-

mand, for the public purpose of investigating and punishing

violations of the criminal law. Cf. Seattle Times Co. v.

Rhinehart, 467 U.S. at 32-33 (noting, in upholding protective

order against publication, that newspaper had obtained the

information in question “only by virtue of the trial court’s

[compulsory] discovery processes”). As we have explained

12 Address information in arrest records will have been provided under

the obvious compulsion of the arrest itself, or independently generated by

government officers during the course of an investigation. See Pennsyl-

vania v. Muniz, 496 U.S. 582, 600-602 (1990) (discussing request for ad-

dress as part of routine booking process). Addresses of crime victims will

have been collected either as required by law, or as a practical condition of

the victim’s invoking society’s largely exclusive public mechanisms for the

investigation and punishment of crime.

24

(see pages 21-22, supra), the purposes for which California

has authorized disclosure are all ones that the state

legislature could reasonably have concluded serve important

public interests—including the interests most centrally

protected by the First Amendment—and therefore warrant

release of address information, even at some incremental

cost to personal privacy.

By contrast, private commercial use of addresses “to sell a

product or service,” Cal. Gov’t Code § 6254(f)(3) (West Supp.

1999), is far less likely to serve any public purpose. Cf.

Reporters Comm., 489 U.S. at 766 n.18, 771-775 (recognizing

different public and private interests in disclosure of infor-

mation from government files). Such use would, however, be

much more likely to include or facilitate private commercial

solicitation, in person or by mail or telephone, of the indivi-

duals involved. Those individuals would very likely surmise,

accurately, that their addresses had been made available for

that purpose by state authorities. California’s lawmakers

could reasonably conclude that some citizens would find such

solicitation intrusive, and would consider it an unwarranted

incremental invasion of their privacy for the State to have

disclosed to the solicitors personal information that it had

obtained from them only on compulsion, or at least for

serious public purposes. Compare Florida Bar, 515 U.S. at

626-630 (recognizing intrusive and potentially offensive

nature of mail solicitations under some circumstances);

United States Dep't of Defense, 510 U.S. at 500-501 (“[W hen

we consider that other parties, such as commercial advertis-

ers and solicitors, must [under FOIA] have the same access

* * * to the employee address lists sought in this case,

* * * it is clear that the individual privacy interest that

would be protected by nondisclosure is far from insignifi-

cant.”); Reporters Comm., 489 U.S. at 762-771 (recognizing

substantial interest in avoiding incremental invasions of

privacy, even where the same information is in some

25

respects “public”); Lanphere, 21 F.3d at 1514 (identifying

“maintaining public confidence in our system of justice” as a

state interest supporting prohibition on commercial use of

addresses from state records). Moreover, the court of

appeals improperly denigrated the State’s expressed con-

cern with the private use of address information from crime

and arrest records in commercial databases, which indeed

raise well recognized (and growing) privacy concerns. Com-

pare Pet. App. 32a (dismissing petitioner’s concern over

privacy implications of commercial data banks as “no more

than speculation and conjecture”) with, e.g., Reporters

Comm., 489 U.S. at 766 (recognizing that federal Privacy Act

“was passed largely out of concern over ‘the impact of

computer data banks on individual privacy’”); id. at 760, 764,

766-767, 769-771 (recognizing special privacy concerns

created by computer data banks); cf. Florida Bar, 515 U.S.

at 629-630 (criticizing treatment of privacy concerns in prior

decision as “casual” and “perfunctory”).

The court of appeals concluded that, although protection

of personal privacy was an important governmental interest,

it was “not rational for a statute which purports to advance

the governmental interest in protecting the privacy of

arrestees to allow the names and addresses of the same to be

published in any newspaper, article, or magazine in the

country.” Pet. App. 35a. That argument, however, mis-

construes the nature of the government’s interest, which

involves not protecting the secrecy of government infor-

mation, but avoiding facilitation by the government of

unwarranted invasions of personal privacy. Compare id. at

33a (discussing when violation of privacy interest occurs).

As the term “unwarranted” implies, the State pursues that

interest not as an absolute, but by seeking to limit the types

of intrusions that the government itself will facilitate to

those that can be justified by what the State views as

legitimate public interests.

26

The court of appeals’ assessment also relied on a specula-

tive characterization of the likely result of disclosures

authorized by California’s rules. The court adduced no

evidence, for example, that journalists seek personal address

information from any substantial portion of the State’s

arrest or crime records; that, when they do so, they normally

publish that information; or that any such publication nor-

mally results in an objective or perceived invasion of privacy

comparable to having one’s home address included on one or

more lists and then being contacted, in person or by mail, by

commercial solicitors. It seems at least as likely that mem-

bers of the press might routinely review general arrest

information, but would request addresses only in cases of

particular public interest—and then often only for purposes

of contacting an individual themselves. “Scholarly” requests

for individual addresses would seem even more likely to be

sporadic, and even less likely to result in substantial

invasions of privacy.’ Disclosures for “political” or private

investigatory purposes (ibid.) similarly seem unlikely to be

frequent; and while they might be disclosures that the

persons affected would prefer not to occur, the State could

properly conclude that in such cases the countervailing

public interest in disclosure would be strong."

'S While scholars might sometimes contact individuals whose addresses

they had obtained, they might also request address information solely for

statistical purposes, which would involve no material invasion of individual

privacy interests.

4 Cf. Reporters Comm., 489 U.S. at 761 (quoting Reporters Comm. for

Freedom of the Press v. United States Dep't of Justice, 831 F.2d 1124, 1129

(D.C. Cir. 1987) (Starr, J., dissenting) (“Although there may be no public

interest in disclosure of the FBI rap sheet of one’s otherwise incon-

spicuously anonymous next-door neighbor, there may be a significant

public interest--one that overcomes the substantial privacy interest at

stake—in the rap sheet of a public figure or an official holding high

government office.”), rev'd, 489 U.S. 749 (1989)).

27

There is, therefore, little to support the court of appeals’

apparent conclusion (Pet. App. 35a) thac the “numerous

exceptions” set out in Section 6254(f)(3) would make it

impossible for the general rule of non-disclosure—and, in

particular, the rule that addresses may not be disclosed or

used for commercial purposes—to serve any state interest in

protecting privacy. To the contrary, it is by no means clear

that the privacy “cost” of the statutory exceptions would be

substantial, or even material, in the great majority of cases,

particularly considered in relation to the countervailing

public interests to be served by disclosure. The privacy cost

of disclosure for commercial purposes, on the other hand, is

plain, as is the lack of any substantial public interest to

justify incurring it. So, at any rate, California’s Legislature

was entitled to conclude; and nothing in the First Amend-

ment precludes the State from adopting an information-

disclosure policy based on those conclusions. Indeed, any

contrary holding would require the State, in order to pre-

vent commercial exploitation of personal information gath-

ered through its official processes, to adopt non-disclosure

rules that would be significantly /ess protective of core First

Amendment values. Cf. Kokinda, 497 U.S. at 733 (“The

dissent would create, in the name of the First Amendment, a

disincentive for the Government to dedicate its property to

any speech activities at all.”). That would be a perverse and

unwarranted result."

15 A governmental decision not to provide any information about some

or all arrests might raise different concerns, particularly if (as seems

likely) there proved to be some historical tradition of making public at

least some information about the exercise of that core government power.

See generally note 7, supra. This case raises no such issue, because

California continues to provide full public access to detailed information on

every arrest and crime report—all information, indeed, except the “cur-

rent address” of the crime victim or person arrested. See Cal. Gov't Code

§ 6254(f) (West Supp. 1999).

28

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

EDWARD C. DUMONT

Assistant to the Solicitor

General

LEONARD SCHAITMAN

JOHN S. KOPPEL

Attorneys

APRIL 1999