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

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## Record

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

## Text

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JUL 19 1999
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0239%3A11. Public record. Not legal advice.