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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0239%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 32

## Text

” 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0239%3A09. Public record. Not legal advice.