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

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No. 98-678

In THE

Supreme Court of the United States

Los ANGELES PuciCE DEPARTMENT,

Petitioner,

v.

UNITED REPORTING PUBLISHING CorpP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE FOR

THE NEWSLETTER PUBLISHERS ASSOCIATION

IN SUPPORT OF RESPONDENT

JAMES E. GROSSBERG

Counsel of Record

JAY WARD BROWN

LEVINE SULLIVAN & KOCH, L.L.P.

1050 Seventeenth Street, N.W.

Suite 800

Washington, D.C. 20086

(202) 508-1100

Counsel for Amicus Curiae

The Newsletter Publishers

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES 220000000 ccccccceceeceeseees ii

INTEREST OF THE AMICUS CURIAE ...................... 1

SUMMARY OF ARGUMENT ..... 2

CED <iineeititceniiiicitintiiinniiiaiiitiinatia ta a case Ni tele 4

REGARDLESS OF HOW THE COURT RE-

SOLVES THE VALIDITY OF THE PARTICU-

LAR STATUTE AT ISSUE, IT SHOULD NOT

RETREAT FROM ITS PREVIOUS ACKNOWL-

EDGEMENT THAT THE SPEECH OF NEWS-

LETTER PUBLISHERS IS ENTITLED TO THE

FULL PROTECTIONS OF THE FIRST AMEND-

SEITE cacti: ssscuantnsieninentiiaitiliinaiiieaania aig 4

A. The Ninth Circuit’s Unbounded Definition Of

Commercial Speech Conflicts With This Court’s

Precedents And Would Encompass Most News-

letters As Well As Numerous Other Sources Of

News And Information... 5

B. Newsletters Serve A Vital Informational Role

And Have Without Exception Been Deemed By

The Courts To Enjoy The Full Protections Of

The First Amendment... cigs 14

CONCLUSION ww... pepnoebesaandennsmbatinseltiiediiatiiiidcdial 24

(i)

ii

TABLE OF AUTHORITIES

CASES

Adey v. United Action for Animals, Inc., 361 F.

Supp. 457 (S.D.N.Y. 1973), aff'd, 493 F.2d 1397

een trnitreenantoneeneneneen

Argello v. City of Lincoln, 143 F.3d 1152 (8th Cir.

a. casetenseenennetle

Board of Trustees v. Fox, 492 U.S. 469 (1989)...

Bolger v. Youngs Drug Products Corp., 463 U.S.

a sesnenennennenl

Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485 (1984) ..........0.....0..0...ccecceceeeeeeee

Branzburg v. Hayes, 408 U.S. 665 (1972) .............

In re Burnett, 635 A.2d 1019 (N.J. Super. Ct.

a snnsnepuncet

Central Hudson Gas & Electric Corp. v. Public

Service Commission, 447 U.S. 557 (1980).......... %

Citicorp v. Interbank Card Association, 4 Media

L. Rep. (BNA) 1429 (S.D.N.Y. 1978) ...............

City of Cincinnati v. Discovery Network, Inc., 507

ESE

City of Lakewood v. Plain Dealer Publishing Co.,

EDs ceesmemetsonssnensasconns

Concerned Consumers League v. O'Neill, 371 F.

Supp. 644 (E.D. Wis. 1974) ..................---csse-e----0

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

ESA STEAL SO OO EE

Edenfield v. Fane, 507 U.S. 761 (1993) .................

In re Factor VIII or 1X. Concentrate Blood Prod-

ucts Litigation, 25 F. Supp. 2d 837 (N.D. IIl.

LL

F.E.C. v. Phillips Publishing, Inc., 517 F. Supp.

LEE

First National Bank of Boston v. Bellotti, 435 U.S.

765 (1978) .............. Ss 2 STO OC ,

Ginsburg v. Agora, Inc., 915 F. Supp. 733 (D.

EE A ee

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

Lc

Lane v. Random House, . Ine., 985 F. Supp. 141

ST ITI sic saneicnsncnentnainessouenncesoscnsnsesosooen

Page

—~— —

iii

TABLE OF AUTHORITIES—Continued

Page

Lind v. Grimmer, 30 F.3d 1115 (9th Cir. 1994).... 21

Lowe v. S.E.C., 472 U.S. 181 (1985) ...................18, 18, 19

Moffatt v. Brown, 751 P.2d 939 (Alaska 1988)... 22

Morning Star, Inc. v. Superior Court, 29 Cal. Rptr.

2d 547 (Ct. App. 1994) ........... cnieeeantiecgneantecmn 22

Murdock v. Pennsylvania, 319 U.S. 105 (1943)... 17

National Life Insurance Co. v. Phillips Publishing,

Inc., 793 F. Supp. 627 (D. Md. 1992) . . 8,21

Ohralik v. Ohio State Bar Association, 436 ‘U. s.

ee Oe a ee 10

Oregon v. Nachtigal, 921 P.2d 1304 (Or. 1996)... 22

Pacific Gas & Electric Co. v. Public Utilities Com-

0 10, 20

In re Petroleum Products Antitrust Litigation, 680

I ia te 21

In re Photo Marketing Association International,

327 N.W.2d 515 (Mich. Ct. App. 1982) .............. 22

Pittsburgh Press Co. v. Pittsburgh Commission

on Human Relations, 413 U.S. 376 (1973)... 8

Reuber v Food Chemical News, Inc., 925 F.2d 703

EE a a Ere 21

Rubin v. Coors Brewing Co., 514 U. S. 476 (1995). 10

S.E.C. v. Hirsch, 8 Media L. Rep. (BNA) 2421

i FE Ee meen 22

S.E.C. v. Lowe, 725 F.2d 892 (24 Cir 1984), rev'd,

TEAR ona eT ee 19

S.E.C. v. Wall Street Publishing Institute, Inc.,

851 F.2d 366 (D.C. Cir. 1968) ............................... 18

In re Scott Paver Co. Securities Litigation, 145

F.R.D. 366 (E.D. Pa. 1992) ......... aa ae 18

Southwell v. Southern Poverty Law Center, 949

F. Supp. 1303 (W.D. Mich. 1996) 0.0... 21

Taque v. Citizens for Law & Order, Inc., 142 Cal.

Rptr. 689 (App. Dep’t Super. Ct. 1977) ............ 22

United States v. Edge Broadcasting Co., 509 U.S.

ee RE EEE Ee ee eee ere Oe 10

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748

ITT stcchriechat thneea narra nanarininmenientntariaiennatentnitaaas 7,9

iv

TABLE OF AUTHORITIES—Continued

Page

Waldbaum v. Fairchild Publications, Inc., 627 F.2d

ff ££ S sere Se 21

Zauderer v. Office of Disciplinary Counsel, 471

Se CE GY cn tnirrsdectinniieetiathiteimnttieieliinteniniadiieereneed ad 12

STATUTE

California Government Code § 6254(f) (3) 0... 4,12

OTHER AUTHORITY

P. Cameron DeVore & Robert D. Sack, Advertis-

ing & Commercial Speech (1999) .......... 1]

In THE

Supreme Court of the United States

No. 98-678

Los ANCELES PoLiIce DEPARTMENT,

7 Petitioner,

UNITED REPORTING PUBLISHING CORP.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE FOR

THE NEWSLETTER PUBLISHERS ASSOCIATION

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The Newsletter Publishers Association (“NPA”) repre-

sents the interests of publishers of more than 2,600

newsletters and specialized information services.’ Col-

lectively, members of the NPA publish on virtually every

1 Pursuant to Supreme Court Rule 37.6, the NPA states that no

counsel for a party to this action authored any portion of this

brief amicus curiae and that no person or entity other than the

NPA made a monetary contribution to the preparation or sub-

mission of this brief. The NPA further states that neither Re-

spondent nor any other party to this action is a member of the

NPA. Written consent of all parties to the filing of this brief

amicus curiae has been filed with the Clerk of the Court pursuant

to Supreme Court Rule 37.3(a).

2

major subject of public concern, with titles ranging from

AIDS Clinical Care to the Indian Subcontinent Monitor,

and from Personal Finc ice to the Zoning Bulletin. Con-

trary to this Court's precedent, the Court of Appeals

held in this case that Respondent's newsletter and ancil-

lary information service do not constitute “core” speech

entitled to the full measure of protection afforded by the

First Amendment. The Court of Appeals instead deemed

Respondent's activities to constitute commercial speech

entitled only to a lesser degree of constitutional protection.

The Ninth Circuit’s expansion of the category of speech

deemed commercial devalues the speech not only of Re-

spondent, but of a whole class of publications heretofore

understood to be entitled to the full protection of the First

Amendment.

SUMMARY OF ARGUMENT

This case tests the constitutionality of a California

Statute that purports to discriminate between commercial

and non-commercial users who request access to certain

information contained in arrest records. The courts below

determined that Respondent, the publisher of a newsletter

and proprietor of a related information service, is engaged

in activities that constitute “commercial” speech, but that

the statute in question infcinges even the limited rights

available to commercial speakers under the First Amend-

ment. Regardless of how the Court resolves the constitu-

tionality of the particular statute at issue, the NPA re-

spectfully urges the Court to reject the reasoning of the

courts below that led them to hold that newsletters like

the one published by Respondent are anything other than

core speech entitled to the full shelter of the First Amend-

ment.

The conclusion of the courts below that Respondent's

newsletter and ancillary information service are commer-

3

cial rather than core speech disregards the journalistic

nature of such publications and constitutes an unwar-

ranted and unworkable enlargement of the Court’s com-

mercial speech doctrine. More specifically, the courts

below appear to have overlooked that Respondent's publi-

cations—its newsletter and ancillary information service—

are not themselves advertisements or solicitations, the kind

of invitations to commercial transactions to which this

Court previously has limited application of the commercial

speech doctrine. Indeed, the Ninth Circuit’s expansion of

the category of commercial speech to include any speech

concerned solely with the economic interests of the speaker

and its audience threatens to engulf a wide variety of

news and information sources beyond the particular prod-

ucts published by Respondent. Further, the Ninth Circuit

appears to have confused Respondent’s publications with

speech in which its customers ultimately may engage based

on information they obtain from Respondent. Nothing in

this Court’s explication of the commercial speech doctrine

supports such a broad reformulation of this less-favored

category of speech.

The nature of newsletters as a class of periodicals

underscores the constitutionally unacceptable result that

follows from the Ninth Circuit’s reasoning. Newsletters

present important information on specialized subjects to

their readers in a timely and comprehensible fashion, in

the best tradition of the American press. As such, news-

letters long have been understood by the courts to be

entitled to invoke the full protection of the First Amend-

ment in a variety of contexts. The Ninth Circuit's con-

clusion to the contrary disregards this well-established

authority and devalues speech of unquestionable public

importance. To permit the Ninth Circuit’s classification

of Respondent's newsletter as commercial speech to stand

4

would be to alter fundamentally the constitutional pro-

tection available to a wide array of publishers, including

the members of the NPA.

ARGUMENT

REGARDLESS OF HOW THE COURT RESOLVES THE

VALIDITY OF THE PARTICULAR STATUTE AT

ISSUE, IT SHOULD NOT RETREAT FROM ITS PRE-

VIOUS ACKNOWLEDGMENT THAT THE SPEECH

OF NEWSLETTER PUBLISHERS IS ENTITLED TO

THE FULL PROTECTIONS OF THE FIRST AMEND-

MENT

The California statute at issue here purports to prohibit

the release of certain information regarding arrestees to

requesters who will use the information “directly or in-

directly to sell a product or service,” although the statute

expressly exempts from its prohibition, inter alia, requests

made for a “journalistic . . . purpose.” Cal. Gov't Code

§ 6254(f)(3).

Respondent United Reporting Publishing Corp.

(“United Reporting”) publishes a newsletter, entitled The

‘Jailmail’ Register (the “Register”), that reports on vari-

ous topics relevant to law enforcement and criminal de-

fendants. See, e.g., Excerpts of Record (“ER”) 195-202.

The newsletter also includes, as a regular feature, a

“blotter” of the names and addresses of persons recently

charged with various criminal offenses. ER 198, 202.

United Reporting also offers an ancillary “dial up” infor-

mation service through which persons may obtain such

address data directly in other formats. See id. Concerned

that the statute could be read to apply to its activities,

United Reporting sought a judicial declaration that the

statute violates the First Amendment.

Disregarding a long line of authority (including deci-

sions of this Court), the Ninth Circuit rejected United

5

Reporting’s argument that its newsletter and ancillary

information service are noncommercial speech, the regula-

tion of which is subject to strict scrutiny under the First

Amendment. oe Reporting Publ’g Corp. v. California

Highway Patrol, 146 F.3d 1133, 1136 (9th Cir. 1998).

Rather, the Ninth Cjrcyit held that United Reporting’s

publications constitute" “commercial” speech, and pro-

ceeded to declare the lenged statute invalid as a vio-

lation of the more; limited rights secured to commercial

speakers by the First Amendment. The NPA respectfully

submits that the court below erred, not in the result it

ultimately reached, but rather by classifying the newsletter

and ancillary informatior? service as commercial speech

in the first instance. This error, if endorsed by this Court

or simply permitted to stand unchallenged, would sweep

out from the full shelter of the First Amendment a whole

class of speech that this Court has recognized serves the

Amendment’s core valuvs.

A. The Ninth Circuit’s Unbounded Definition Of Com-

mercial Speech Conflicts With This Court’s Precedents

And Would Encompass Most Newsletters As Well As

Numerous Other Sources Of News And Information

As Justice Scalia observed in Board of Trustees v. Fox,

492 U.S. 469, 473-74 (1989), in a commercial speech

case, “the first question we confront is whether the prin-

cipal type of expression at issue is commercial speech.”

This examination must proceed “carefully,” this Court

has cautioned, “to ensure that speech deserving of greater

constitutional protection is not inadvertently suppressed.”

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66

(1983); see also Bose Corp. v. Consumers Union of

United States, Inc., 466 U.S. 485, 504-05 (1984) (where

case presents question of whether particular speech falls

within category “to which the majestic protection of the

6

First Amendment does not extend,” the “Court has regu-

larly conducted an independent review of the record both

to be sure that the speech in question actually falls within

the unprotected category and to confine the perimeters

of any unprotected category within acceptably narrow lim-

its in an effort to ensure that protected expression will not

be inhibited”).

Notwithstanding the cautious approach urged by this

Court, the Ninth Circuit in this case swept into its defi-

nition of commercial speech “any ‘expression related

solely to the economic interests of the speaker and its

audience.”” United Reporting Publ’g Corp. v. California

Highway Patrol, 146 F.3d at 1137 (emphasis added)

(quoting Central Hudson Gas & Elec. Corp. v. Public

Serv. Comm'n, 447 U.S. 557, 561 (1980)). In so defining

commercial speech, the Ninth Circuit appears to have

overlooked this Court’s admonition in City of Cincinnati

v. Discovery Network, Inc., 507 LS 410 (5993), thai, in

its more recent rulings regarding the soer* of the category

of commercial speech, the Court “did not simply apply

the broader definition of commercial speech advanced in

Central Hudson,” id. at 423 (emphasis added )—precisely

the definition applied here by the Ninth Circuit. Indeed,

having first adopted this sweeping definition of commercial

speech, the Ninth Circuit then proceeded to characterize

the speech at issue—United Reporting’s newsletter and

ancillary information service—as follows:

United Reporting sells arrestee information to clients;

nothing more. Its speech can be reduced to, “I

[United Reporting] will sell you [client] the X [names

and addresses of arrestees] at the Y price.”

Id. (emphasis added; other alterations in original). This,

the Ninth Circuit held, “is a pure economic transaction

J

comfortably within the ‘core notion’ of commercial speech.”

Id. (internal citation omitted) .

The court below, however, fundamentally misconstrued

the speech in which United Reporting seeks to engage.

That speech is not (as the Ninth Circuit characterized it)

an advertisement or solicitation by United Reporting for

the sale of its newsletter or ancillary information service,

which might fairly be termed commercial speech, but

rather the information communicated within the newsletter

and information service themselves. Such information

cannot logically be characterized as a mere proposal to

engage in a commercial tratisaction, any more than can

the information contained in any book or daily newspaper

sold for a price. Unlike the speech engaged in by an ad-

vertiser that is designed solely for the purpose of selling

the speaker’s product or service, the speech at issue here

is the very product or service of value that United Report-

ing is in business to disseminate, a distinction of disposi-

tive significance.* The public dissemination of such in-

2 The Ninth Circuit’s “X for Y” formulation is derived directly

from Justice Blackmun’s description of the speech at issue in Vir-

ginia State Board of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748 (1976)—speech that, in the form of a

price list, was plainly and exclusively an advertisement for the

sale of goods:

Our pharmacist does not wish to editorialize on any subject,

cultural, philosophical or political. He does not wish to report

any particularly newsworthy fact, or to make generalized ob-

servations even about commercial matters. The “idea” he

wishes to communicate is simply this: “I will sell you the X

prescription drug at the Y price.”

Id. at 761. In contrast to the speech at issue in Virginia State

Board of Pharmacy, United Reporting does indeed wish to report

newsworthy facts, and, as explained in text, the speech at issue here

is no mere proposal to engage in a commercial transaction with the

speaker.

3 Even if the contents of United Reporting’s newsletter or its

ancillary information service could somehow be characterized as a

formation simply does not constitute the kind of speech

heretofore deemed to be commercial. Argello v. City of

Lincoln, 143 F.3d 1152, 1153 (8th Cir. 1988) (quoting

trial court’s observation that “there is a distinct difference

between the offer to tell a fortune (‘I'll tell your fortune

for $20.’), which is commercial speech, and the actual

telling of the fortune (‘I see in your future .. . .’) which

is not”).

Rather, as this Court originally formulated it, commer-

cial speech is expression that does “no more than propose

a commercial transaction.” Pittsburgh Press Co. v. Pitts-

burgh Comm'n on Human Pelations, 413 U.S. 376, 385

(1973) (emphasis added). The Ninth Circuit’s construc-

tion of this Court’s subsequent decision in Central Hudson

Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. at

561, as announcing a different, far broader standard can-

not be squared with either the language or logic of numer-

solicitation for a commercial transaction, that would not be dis-

positive of whether the information constitutes commercial speech.

“(T]he mere fact that [materials] are . . . advertisements clearly

does not compel the conclusion that they are commercial speech.”

Bolger v. Youngs Drug Prods. Corp., 463 U.S. at 66; see also, e.g.,

National Life Ins. Co. v. Phillips Publ’g, Inc., 793 F. Supp. 627,

645 (D. Md. 1992) (recognizing that promotional materials dis-

seminated by a specialized financial newsletter do not constitute

commercial speech); Lane v. Random House, Inc., 985 F. Supp.

141, 152 (D.D.C. 1995) (noting that speech is “protected even if

styled as a solicitation to purchase,” court held advertisement for

book is not commercial speech). Furthermore, that the newsletter

may contain a reference to a specific product, i.e., the ancillary

information service, “does not by itself render the [material] com-

mercial speech.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. at

66. And “the fact that [United Reporting] has an economic motiva-

tion for mailing the [material] would clearly be insufficient by it-

self to turn the materials into commercial speech.” /d. at 67. While

the combination of such characteristics can provide support for the

conclusion that particular material constitutes commercial speech,

id., the court below engaged in no such analysis with respect to

United Reporting’s newsletter and service.

9

ous other precedents of the Court, decided both before

and after Central Hudson. In Virginia State Board of

Pharmacy v. Virginia Citizens Consumers Council, Inc.,

425 U.S. 748, 761-62 (1976), for example, the Court

observed four years before Central Hudson that speech

is not commercial merely because it concerns only the

financial interests of the recipients.

Similarly, three years after deciding Central Hudson,

the Court in Bolger v. Youngs Drug Prods. Corp., 463

U.S. 60 (1983), evaluated two fliers and a pamphlet

concerning prophylactic products. As the Court pointed

out, its earlier “decisions have recognized ‘the “common-

sense” distinction between speech proposing a commercial

transaction, which occurs in an area traditionally subject

to government regulation, and other varieties of speech.’ ”

Id. at 64 (citation omitted) (emphasis added); see also

id. at 65 (category of speech that is commercial is distin-

guished by “the greater potential for deception or confu-

sion in the context of certain advertising messages”) (em-

phasis added). As for the two advertising fliers at issue

in Bolger, the Court explained that they were clearly

“speech which does ‘no more than propose a commercial

transaction’” and, accordingly, were deemed commercial.

Id. at 66 (citations omitted). The pamphlet fell into the

same category notwithstanding that it discussed venereal

disease because it both was intended as an advertisement

to promote the sale of the speaker’s prophylactic products

and made specific reference to those products—in other

words, the pamphlet was speech primarily intended to pro-

mote a commercial transaction between the speaker and

the recipients of the speaker’s message. See id. at 66-67;

see also, é.g., City of Cincinnati v. Discovery Network,

Inc., 507 U.S. at 423 (observing that Court in Bolger did

not apply Central Hudson’s broad definition of commer-

cial speech as that consisting of any speech related solely

10

to speaker’s and listener’s economic interests); Rubin v.

Coors Brewing Co., 514 U.S. 476, 494 (1995) (Stevens,

J., concurring in judgment) (“[a]s a matter of common

sense, any description of commercial speech that is in-

tended to identify the category of speech entitled to less

First amendment protection should relate to the reasons

for permitting broader regulation: namely, commercial

speech’s potential to mislead” consumers); United States

v. Edge Broadcasting Co., 509 U.S. 418, 426 (1993)

(commercial speech doctrine distinguishes between speech

proposing a commercial transaction and other varieties of

speech); Board of Trustees v. Fox, 492 U.S. at 473-74

(“the test for identifying commercial speech” is whether

it “propose[s] a commercial transaction”); Pacific Gas &

Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1, 8-9 (1986)

(Powell, J., announcing judgment) (nature of newsletter

at issue “extends well beyond speech that proposes a

business transaction” and thus is fully protected by First

Amendment); cf. Edenfield v. Fane, 507 U.S. 761, 765

(1993) (acknowledging possibility that “ambiguities may

exist at the margins of the category of commercial speech,”

but emphasizing that “solicitations” are at core of concept).

At bottom, what underlies virtually all of the Court's

prior commercial speech cases is the notion that the doc-

trine is intended to permit limited regulation of speech

directed at persuading consumers to enter into commercial

transactions with the speaker. See Ohralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 455-56 (1978) (emphasizing

that commercial speech doctrine is concerned with “speech

proposing a commercial transaction”). United Reporting’s

speech at issue here simply does not share this funda-

mental characteristic. There is, therefore, no constitutional

basis for characterizing the entirety of United Reporting’s

publications as “commercial speech,” as the Ninth Circuit

has done.

0 OE ee

11

Indeed, if the Ninth Circuit’s formulation is correct, then

countless publications heretofore thought to contain core

speech fully protected by the First Amendment would be

recategorized as commercial speech. See P. Cameron De-

Vore & Robert D. Sack, Advertising & Commercial Speech

§ 2.2, at 2-10 to 2-11 (1999). For example, the news-

letter Megawatt Daily, which includes significant news

and analysis on the electric power industry of interest to

its subscribers, see infra at 16 n.6, features in each issue

tables of pricing data for electric power throughout the

nation. This data undoubtedly is intended to serve the

financial interests of the newsletter’s readers, and is placed

in the newsletter at least in part for the purpose of en-

hancing its value to those subscribers. Because, for these

reasons, Megawatt Daily’s speech could be characterized

under the Ninth Circuit’s rationale as relating solely to the

economic interests of the speaker and its audience, the

publication presumably would be treated as commercial

speech. So too would Inside Mortgage Finance, see infra

at 16 n.6, because that newsletter includes, as one or its

principal features, tables of data concerning mortgage

originations and mortgage purchase activity by Fannie

Mae and Freddie Mac. Such data apparently would be

characterized, under the Ninth Circuit’s reasoning, as ex-

clusively directed to the financial interests of the news-

letter’s subscribers, and because it is presumably dissemi-

nated by the newsletter for profit, would be deemed com-

mercial speech.*

4The list of newsletters potentially subject to being deemed

commercial speech under the Ninth Circuit’s formulation is lengthy.

Random Lengths is a weekly newsletter that publishes data on the

current price of numerous types of lumber around the nation,

along with analysis of the lumber market. See, e.g., OSB Output

Likely to Top Plywood, Random Lengths, June 18, 1999, at 1. Pro-

gressive Business Publications publishes some 22 newsletters con-

cerned primarily with ways to better manage businesses and to

12

The consequences of such a reformulation of the com-

mercial speech doctrine would not be limited to newsletters.

If United Reporting’s speech is deemed commercial be-

cause it sells information that facilitates the business activi-

ties of its subscribers, then virtually every daily newspaper

in the nation—each of which sells raw data on the move-

ment of stock prices, along with intelligence on the fluctu-

ations of the market, in every issue—is subject to the

same classification. No rational interpretation of this

Court’s commercial speech jurisprudence can support such

a result. “Whatever else the category of commercial

speech may encompass” beyond that which does no more

than propose a commercial transaction, Zauderer v. Office

of Disciplinary Counsel, 471 U.S. 626, 637 (1985), this

Court should not permit expansion of its boundaries by

mere ipse dixit.®

increase their bottom lines. Included as regular features in most

of this publisher’s newsletters are lists of data concerning com-

panies tha! have been cited for violation of state or federal laws

pertinent to the particular industry covered. See, e.g., Roundup

of Recent Wage-Hour Violations and Sanctions, Keep up to Date

on Payroll, June 18, 1999, at 4; Roundup of Most Recent OSHA

Citations for Safety Violations, Safety Compliance Alert, June 16,

1999, at 4; Who Got Fined—And Why, Clean Air News, June 21,

1999, at 4; Who Got Fined, Environmental Compliance Alert, June

28, 1999, at 1-2. By the same token, Guidepoints: Acupuncture in

Recovery is a monthly newsletter that features, among reports con-

cerning this medical practice, a list of the contact names and ad-

dresses for third persons or organizations who might wish to hire

acupuncturists. See, e.g., Funding Whiffs, Guidepoints: Acupunc-

ture in Recovery, June 1999, at 8 (listing contact persons at courts

receiving grants to support “drug courts” that might be interested

in employing alternative therapies).

5 From what appears in the record, this case apparently could

have been resolved by the courts below on the basis that United

Reporting is engaged in activities with a “journalistic purpose” and,

as such, is entitled to access to the information at issue under the

express language of the statute. See Cal. Gov't Code § 6254(f)(3).

Certainly, it cannot be gainsaid that newsletters and their reporters

13

Finally, the Ninth Circuit's error is compounded by its

failure to distinguish between United Reporting’s speech

and the speech in which its customers may thereafter en-

gage. Thus, for example, the United States, appearing as

amicus curiae, contends that “{a]ddresses 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 audi-

ence that respondent’s clients want to contact.” Brief for

the United States as Amicus Curiae Supporting Petitioner

at 15 (emphasis added).

While it may be true that those who subscribe to United

Reporting’s newsletter and ancillary information service do

so at least in part because the information conveyed to

them will enhance their capability to reach a particular

target audience, that fact should not deprive United Re-

porting of the full measure of First Amendment protections

to which it is otherwise entitled. This Court has never

suggested that speech is deserving of lesser constitutional

protection simply because the recipient may utilize it in

order to further his or her commercial interests, and the

consequences of such a proposition would be profound.

Much of the daily grist of the nation’s news—from reports

on the latest economic indicators, to the political machina-

tions of Congress and state legislatures, to developments in

foreign affairs—is routinely utilized by businesses, profes-

sionals and consumers alike to facilitate and inform their

decisionmaking regarding commercial transactions. The

proposition that news organizations that disseminate such

information are thereby entitled to a lesser degree of con-

are entitled to access to this state-controlled information on the

same basis as their counterparts at daily newspapers and other

press organizations. See Lowe v. S.E.C., 472 U.S. 181, 205 (1985);

Branzburg v. Hayes, 408 U.S. 665, 704 (1972).

14

stitutional protection than that historically afforded the

press cannot be squared with this Court’s First Amendment

jurisprudence. See, e.g., Bose Corp. v. Consumers Union

of United States, Inc., 466 U.S. at 513 (where consumer

protection organization published critical review of new

stereo loudspeaker in order to aid consumers when pur-

chasing such equipment, speech “fit{] easily within the

breathing space that gives life to the First Amendment”

and publisher was entitled to invoke full limits “of the

First Amendment's broad protective umbrella”).

B. Newsletters Serve A Vital Informational Role And

Have Without Exception Been Deemed By The Courts

To Enjoy The Full Protections Of The First Amend-

ment

Even brief consideration of the nature of newsletters as

a class of periodicals serves to underscore the constitu-

tionally unacceptable results that follow from the Ninth

Circuit’s reasoning. Newsletters are distinguished as a

form of publication that provides information, commen-

tary and analysis concerning a defined area of interest to

subscribers in a timely and comprehensible fashion. While

the diminutive phrase “newsletter” might be misconstrued

to suggest that such publications are somehow less signifi-

cant than daily newspapers or other publications of more

general subject matter, the distinguished history of news-

letter journalism readily dispels such a characterization.

Because they typically limit their coverage to a particular

industry, a specific aspect of governmental activity, or a

single issue of common concern to their readership, news-

letter publishers thereby develop unusual expertise in their

area of coverage and commonly have broken major news

stories in advance of larger, more visible news organt-

zations.

Examples abound. A newsletter focused on the defense

industry first reported the story that competer hackers had

eS

LS

penetrated the computer systems of the Air Force and

Navy during a build-up of forces in the Persian Gulf. See

Pentagon Looks for Answers to Massive Computer Attack,

Defense Information & Electronics Report, Feb. 13, 1998,

at 1. Only after the newsletter had published its report

did the daily print and television news organizations learn

of this significant event affecting the nation’s security.

See, e.g., Susanne M. Schafer, Hackers Attack Computer

at the Pentagon, The Associated Press, Feb. 25, 1998:

Bradley Graham, // U.S. Military Computer Systems

Breached By Hackers This Month, Wash. Post, Feb. 26.

1998, at Al.

Similarly, a controversial doctor’s questionable methods

of conducting human studies of “alternative” cancer ther-

apies were first brought to light in a medical newsletter.

See The Antineoplaston Anomaly: How a Drug Was Used

For Decades in Thousands of Patients, With No Safety.

Efficacy Data, The Cancer Letter, Sept. 25, 1998, at 1.

Only after The Cancer Letter published its report did the

general press recognize the significance of the story. See,

e.g., Terri Langford, Oncologists Criticize Methods of

Controversial Cancer Treatment, The Associated Press,

Oct. 1, 1998 (citing “the Sept. 25 issue of The Cancer

Letter, a widely read and well-respected Washington news-

letter”); Shannon Brownlee, Trial of a Cancer Doc, US.

News & World Report, Oct. 5, 1998, at 28, 30 (citing

The Cancer Letter’s report). And, just last month, Mealey

Publications, Inc. was the first to report that GTE Corp.

is seeking to force its insurers to cover some $400 million

in costs associated with Year 2000 computer problems.

GTE Sues 5 Insurers to Recover $400 Million in Y2K

Remediation Costs, Mealey’s Year 2000 Report Bulletin,

June 30, 1999, at 1. The rest of the press followed

Mealey’s lead. See, e.g., Barnaby J. Feder, GTE Sues 5

16

Insurers in a Bid to Spread Year 2000 Costs, N.Y. Times,

July 2, 1999, at C2.®

United Reporting’s publication, the Register, is a typical

example of a newsletter: It provides timely information

and commentary concerning a specialized area of interest,

in this case, law enforcement techniques and strategies

for defending against certain types of criminal charges.

See, e.g., ER 195-202. The value of the Register to its

readers is enhanced by the inclusion of data useful to

them, including the addresses of persons recently arrested

for certain crimes. ER 198, 202. Countless newsletters

publish similar information: The Risk Retention Reporter,

for example, publishes contact information for purveyors

and consumers of insurance products, some of which it

gleans from government records. Gas Daily publishes

6 See also, e.g., Marketer Said to Renege; Midwest Prices Sky-

rocket, Megawatt Daily, June 24, 1998, at 1 (newsletter focused on

electric power utilities first reported story that electric power mar-

keter was defaulting on contracts to deliver electricity to munici-

palities and other customers during Midwestern heat wave, ulti-

mately driving the wholesale price of electricity up more than a

hundred-fold): OMB Director Raines Received Generous Conces-

sions From Fannie Mae Board as He was Departing GSE, Inside

Mortgage Finance, Apr. 25, 1997, at 10 (newsletter covering mort-

gage financing business first reported story that Fannie Mae Vice

Chairman Franklin D. Raines had received extraordinarily gen-

erous severance package when he left to head Clinton Administra-

tion’s Office of Management and Budget, and that Fannie Mae had

omitted his compensation package from its annval report) ; Bonuses

Given to Officers of PBS, Exceeding Federal Salary Cap, Communi-

cations Daily, Dec. 24, 1997, at 3 (newsletter on telecommunications

industry learned through investigative reporting that certain public

beeadcasting executives were receiving compensation in excess of

statutory maximum, and major news organizations followed its re-

portorial lead, see, e.g., Paul Farhi, House Panel Probing Salaries

at NPR, PBS, Wash. Post, Mar. 3, 1998, at Cl; Panel Eyes NPR,

PBS Salaries, Boston Globe, Mar. 3, 1998, at E8; Christopher Stern,

Congress Checks Big Bonus Report, Variety, Feb. 3, 1998 (citing

Communications Daily report) ).

17

tables of pricing data for natural gas. And, like United

orting, many newsletters offer ancillary information

services through which subscribers can purchase addi-

~~. i seg or = detailed data than is included in

cular issue o newsletter. Rockville, Maryland-

based UCG, for example, publishes close to aa

letters on topics ranging from energy (Oil Express, which

provides petroleum marketing intelligence) to telecommu-

nications (the Buyer's Guide to ISDN, which provides

information intended to help businesses select and install

communications equipment) to day care (Day Care USA,

which provides information on federal grants available to

operators of day care centers). UCG also offers numerous

ancillary data services to its customers, including “CBD

Online,” a comprehensive listing of federal coatracts and

awards, and “TECOR OnLine,” through which it provides

customized listings of environmental-related contract op-

portunities. . The information disseminated by UCG, like

that disseminated by United Reporting, is culled largely

from government records and UCG’s ancillary informa-

tion services are no different in kind from that provided

here by United Reporting: Such services provide to sub-

scribers information that those subscribers may, in turn

use to further their business or financial interests. Indeed,

as Petitioner itself concedes, “the dissemination of infor-

mation is the modus operandi of United Reporting and

similar organizations.” Brief for the Petitioner at 36.

This and other courts have long recognized that speak-

ers who seek payment for their speech—the sine qua non

of Virtually all news organizations—do not thereby sacri-

fice their First Amendment rights. See, e.g., City of Lake-

wood v. Piain Dealer Publ’g Co., 486 U.S. 750, 756 n.5

(1988) ( “Of course, the degree of First Amendment pro-

tection is not diminished merely because the newspaper

or speech is sold rather than given away.”); Murdock v.

18

Pennsylvania, 319 U.S. 105, 111 (1943) (“the mere fact

that . . . religious literature is ‘sold’ . . . rather than

‘donated’ does not transform evangelism into a commer-

cial enterprise”). Indeed, courts repeatedly have recog-

nized that it is improper to afford a reduced level of con-

stitutional protection to specialized publications on this

basis. See, e.g., S.E.C. v. Wall Street Publ’g Inst., Inc.,

851 F.2d 365, 372 (D.C. Cir. 1988) (“we do not see a

clear fit between the commercial speech doctrine and the

[stock market] publications that the SEC here seeks to

regulate”); Jn re Scott Paper Co. Sec. Litig., 145 F.R.D.

366, 368 (E.D. Pa. 1992) (rejecting argument that

Standard & Poor’s credit rating circular “is not a member

of the traditional newsgathering and information dissemi-

nating community” entitled to full First Amendment pro-

tection): Citicorp v. Interbank Card Ass'n, 4 Media L.

Rep. (BNA) 1429. 1431 (S.D.N.Y. 1978) (reiecting

argument that specialized financial publisher was “not

entitled to any special protected status” ).

It is well established that the publishing activities in

which newsletter publishers like United Reporting typi-

cally engage (as distinct from advertisemenis they may

publish seliciting persons to pay for the published prod-

ucts) shoul’ be understood as fully protected by the First

Amendment. This Court's reasoning in Lowe v. S.E.C..,

472 US. 181 (1985), a case that concerned a statutory

privilege for members of the press, is illustrative. There,

the petitioners “publish{ed] two investment newsletters

and solicitfed] subscriptions for a stock-chart service.”

id. at 184. The SEC alleged in its complaint that the

publisher was “engaged in the business of advieng others

‘as to the advisability of investing in, purchasing. or sell-

ing securities . . . and as part of a regular business . . .

issuing reports concerning securities?” without having

registered with the Commission to do so, in violation of

~L

_—- *

_

—_

19

securities laws. Id. (quoting complaint) (alterations i

original ). The Second Circuit rejected 4 yon eg hes

sertion that it was entitled to the full panoply of First

Amendment rights, holding that his newsletters constituted

potentially deceptive commercial speech,” S.E.C. v. Lowe,

725 F.2d 892, 901 (2d Cir. 1984) (emphasis added),

and observing that the case involved “precisely the kind

= ener he commercial activity permissible under the

irs ent,” id. at 900 i

pedir cece (emphasis added). This

In holding that the registration requirements of the In-

vestment Advisors Act of 1940 did not apply to the pub-

lisher, the Court noted that “[p]etitioners’ newsletters are

distributed ‘for compensation and as part of a regular

business and they contain ‘analyses or reports concerning

securities. " Lowe v. S.E.C., 472 US. at 203 (citation

omitted). Nevertheless, this Court concluded that the

newsletters and stock-chart service at issue qualified for

an exemption from the registration requirements as “bona

rs newspaper{s], news magazine[s], or business or finan-

——- invoking the Court’s oft-repeated

“The liberty of the press is not confined to news-

papers and periodicals. It necessarily embraces pam-

phlets and leaflets. These indeed have been historic

weapons in the defense of liberty, as the pamphlets

of Thomas Paine and others in our own history

abundantly attest. The press in its historic connota-

tion comprehends every sort of publication which

affords a vehicle of information and opinion.”

id. at 205 (emphasis added) (quoting Lovell v. Cit

Griffin, 303 U.S. 444, 451-52 (1938) (citing Ys =

Minnesota, 283 U.S. 697, 713-16 (1931))); see also, e.g.,

Branzburg v. Hayes, 408 U.S. at 704 (informative role

played by press is fulfilled by “{t}he lonely pamphleteer

20

who uses carbon paper or mimeograph just as much as

... the large metropolitan publisner”).

The Court held in Lowe that the respondent was not

engaged in unprotected speech, but, rather, fit comfortably

within the concept of the “press”:

To the extent that the chart service contains factual

information about past transactions and market

trends, and the newsletters contain commentary on

general market conditions, there can be no doubt

about the protected character of the communications

Id. at 210.

What this Court said of the statutory protection avail-

able to the newsletters at issue in Lowe applies with equal

force to the constitutional protection at issue here. See

Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475

U.S. 1 (1986). In Pacific Gas, a California utility pub-

lished a newsletter, entitled Progress, that it distributed

to its gas and electric customers. Although it also in-

cluded political editorials and feature stories on matters

of general interest, one purpose of the newsletter was to

provide commercial information to the utility's customers,

including, for example, information about special payment

plans it offered. Jd. at 5 & n.1. Justice Powell, writing

for himself, Chief Justice Burger and Justices O’Connor

and Brennan, observed:

There is no doubt that . . . appellant’s newsletter

Progress receives the full protection of the First

Amendment. In appearance no different from a small

newspaper, Progress’ contents range from energy-

saving tips to stories about wildlife conservation, and

from billing information to recipes. Progress thus

extends well hevond speech that proposes a business

transaction, and includes the kind of discussion of

Ate reas ee

21

“matters of public concern” that the First Amend-

ment both fully protects and implicitly encourages.

Id. at 8-9 (Powell, J., announcing judgment) (citations

omitted) (emphasis added).

Indeed, the lower courts repeatedly have afforded news-

letters the full measure of protection derived from the

First Amendment. See Lind v. Grimmer, 30 F.3d 1115,

1117-19 (9th Cir. 1994) (concluding that newsletter

constituted “fully protected speech” and applying strict

First Amendment scrutiny to statute that purported to

limit information publisher could disseminate); Reuber v.

Food Chem. News, Inc., 925 F.2d 703, 707-08 (4th Cir.

1991) (newsletter reporting on toxic chemicals entitled

to full constitutional protection); Jn re Petroleum Prods.

Antitrust Litig., 680 F.2d 5, 7-8 (2d Cir. 1982) (news-

letter dedicated exclusively to coverage of prices in pe-

troleum industry entitled to assert First Amendment-based

privilege against compelled disclosure of information it

had gathered); Waldbaum v. Fairchild Publications, Inc..,

627 F.2d 1287 (D.C. Cir. 1980) (newsletter reporting

on marketing policies of supermarket industry entitled to

full First Amendment protection) .”

7 See also, e.g., In re Factor VIII or 1X Concentrate Blood Prods.

Litig., 25 F. Supp. 2d 837, 840 n.4 (N.D. Ill. 1998) (organization

that published newsletter conveying information to hemophiliacs

about blood products was entitled to assert First Amendment-based

defenses to claims based on content of newsletter); Southwell v.

Southern Poverty Law Center, 949 F. Supp. 1308, 1304, 1314 (W.D.

Mich. 1996) (publisher of newsletter that disseminated data about

white supremacist groups entitled to privilege afforded by First

Amendment against compelled disclosure of confidential sources) :

Ginsburg v. Agora, Inc., 915 F. Supp. 733, 739-40 (D. Md. 1995)

(although newsletter may be less recognized and may have smaller

circulation than larger publications, it nevertheless is subject to

same protection under First Amendment); National Life Ins. Co.

v. Phillips Publ’g, Inc., 793 F. Supp. at 648 (newsletter directed at

financial interests of subscribers entitled to assert First Amend-

22

In the final analysis, United Reporting’s newsletter and

ancillary service, which provide information concerning

the operations of law enforcement and those who have

come into the criminal justice system, are no less entitled

to the First Amendment’s protections than is any member

of the “press.” See, e.g., Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 604 (1982) (reports concerning

law enforcement and those responsible for administering

that system provide both the raw material and a catalyst

for the “ ‘free discussion of governmental affairs’ ”) (quot-

ing Mills v. Alabama, 384 U.S. 214, 218 (1966) ); First

Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 783

ment-based defenses in defamation action); S.E.C. v. Hirsch, 8

Media L. Rep. (BNA) 2421, 2422 (S.D.N.Y. 1982) (financial news-

letter entitled to First Amendment-based privilege against com-

pelled disclosure of subpoenaed material) ; F.£.C. v. Phillips Publ’g,

Inc., 517 F. Supp. 1308, 1309, 1312-13 (D.D.C. 1981) (treating

newsletters as “press” publications for purposes of exemption from

regulatory statute); Concerned Consumers League v. O'Neill, 371

F. Supp. 644, 652 (E.D. Wis. 1974) (newsletter, like any news-

paper, “is safeguarded by the First Amendment of the Federal Con-

stitution relating to freedom of the press”); Oregon v. Nachtigal,

921 P.2d 1304, 1307-08 (Or. 1996) (publisher of newsletter report-

ing on financial aspects of sporting goods industry entitled to

peremptory writ striking down prior restraint on publication) ;

Morning Star, Inc. v. Superior Court, 29 Cal. Rptr. 2d 547, 553-58

(Ct. App. 1994) (financial newsletter entitled to assert full range of

protections available under First Amendment); Jn re Burnett, 635

A.2d 1019 (N.J. Super. Ct. Law Div. 1993) (First Amendment

applies to newsletter reporting on insurance management issues) ;

Moffatt v. Brown, 751 P.2d 939, 941-42 (Alaska 1988) (publisher

of allegedly defamatory newsletter entitled to assert full range of

First Amendment protections) ; Jn re Photo Marketing Ass’n Int'l,

327 N.W.2d 515, 517 (Mich. Ct. App. 1982) (“the mere fact that

a publication is technical in nature does not preclude the applica-

tion of the First Amendment privilege against disclosure of con-

fidential information”); Tague v. Citizens for Law & Order, Inc.,

142 Cal. Rptr. 689, 690 (App. Dep’t Super. Ct. 1977) (noting “fun-

damental interests” implicated by libel suit against newsletter and

permitting publisher to assert full range of constitutional defenses

to defamation claim).

23.

(1978) (“the First Amendment goes beyond protection

of the press and the self-expression of individuals to pro-

hibit the government from limiting the stock of information

from which members of the public may draw”); Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-92 (1975)

(American public “relies necessarily upon the press” to

report on operation of government and “[g]reat responsi-

bility is accordingly placed upon the news media” to

fulfill this role); Adey v. United Action for Animals, Inc.,

361 F. Supp. 457 (S.D.N.Y. 1973) (fact that newsletter’s

circulation was limited to members of association with

common interest in subject did not deprive newsletter of

First Amendment protection), aff'd, 493 F.2d 1397 (2d

Cir. 1974).

If a state or federal government seeks to prevent at-

torneys, drug counselors, and other citizens from commu-

nicating directly with recent arrestees, as the State of

California here claims it does, then the proper course is

for the government to enact laws restricting those com-

munications directly, if it can do so consistently with the

Constitution, and not to restrict the speech of United

Reporting or other publishers engaged in the dissemina-

tion to the public of information that serves a far different

purpose than merely proposing a commercial transaction.

24

CONCLUSION

For the foregoing reasons, the NPA respectfully sub-

mits that the judgment in favor of United Reporting

should be affirmed, but that the constitutionally deficient

reasoning adopted by the Court of Appeals should be

rejected.

Respectfully submitted,

JAMES E. GROSSBERG

Counsel of Record

JAY WARD BROWN

LEVINE SULLIVAN & KOCH, L.L.P.

1050 Seventeenth Street, N.W.

Suite 800

Washington, D.C. 20036

(202) 508-1100

Counsel for Amicus Curiae

The Newsletter Publishers

Association