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

QUESTION PRESENTED

Whether it violates the First Amendment for California,

in the statutory scheme at issue in this case, to condition

access to information on a speaker's expressive purpose?

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................. iv

STATEMENT OF INTEREST................ 1

ee. ceevecees 1

SUMMARY OF ARGUMENT ............... 3

icc ensceceses 6

I. SECTION 6254(f)(3) IMPERMISSIBLY FAVORS

"NONCOMMERCIAL" SPEECH OVER "COM-

DP MEE sccseeceececceceeess 6

Il. SECTION 6254(f(3) IMPERMISSIBLY DIS-

CRIMINATES WITHIN THE CATEGORIES OF

COMMERCIAL AND NONCOMMERCIAL

DCCC R CEG seSeapeeeneeeesceecs 13

Ill. SECTION 6254(f)(3)'S PERMANENT AND

UNQUALIFIED BAN ON THE USE OF

ADDRESS INFORMATION IS NOT

NARROWLY TAILORED TO SERVE A SUB-

STANTIAL GOVERNMENTAL INTEREST ... 16

DPC CCC ieee eee eeecectorsececs 20

1V

TABLE OF AUTHORITIES

Page

Cases:

44 Liquormart, Inc. v. Rhode Island,

Se Gh SPD .ceoscebnv ees séneuees 10

Bolger v. Youngs Drug Prod. Corp.,

GP ED wcccéetesednsncees 7, 11, 17

Carey v. Brown,

Gar es ED ccendsanccansseeseses 11

Carey v. Population Services Int'l, Inc.,

Ge ED oe khéeGaceececedenesi 17

City of Cincinnati v. Discovery Network, Inc.,

it en o «pee eeeheee ee eee 4 passim

City of Lakewood v. Plain Dealer Publ'g Co.,

Gee: CTD. cucapeseceesetveueese 10

Consolidated Edison Co. v. Public Service

Comm'n, 447 U.S. 530 (1980) ... 5, 7, 14, 16, 17, 19

Edenfield v. Fane,

Se Gas PEED coc cecccens 9, 15, 16, 17, 18

Ficker v. Curran,

119 F.3d 1150 (4th Cir. 1997) ............... 9

Florida Bar v. Went for It, Inc.,

SP Ue GE covccctesesnceenss 16, 17

Greater New Orleans Broadcasting Ass'n v. United

States, 119 S. Ct. 1923 (1999) ...... 7,9, 11, 12-15

Houchins v. KQED, Inc.,

Ge PEED occcceceeseeeseesceeces 4

Linmark Assocs., Inc. v. Township of

Willingboro, 431 U.S. 85 (1977) ............ 7-8

Martin v. City of Struthers,

. . | eh f =a TTrrrcCrr rrr eee 17

Members of the Los Angeles City Council v. Taxpayers

for Vincent, 466 U.S. 789 (1984) ............. 18

Vv

. Page

Metromedia, Inc. v. City of San Diego,

ST, \.<'6 uae a4 oss cb bebhasue 11

Murdock v. Pennsylvania,

ne cb edeendeeekes 10

New York Times Co. v. Sullivan,

ihe Sn 6 oe eee ne nee ees 10

Ohralik v. Ohio State Bar Ass'n,

PE cvecuidéeceecedeneneons 16

Police Dep't of Chicago v. Mosley,

a an eo ee eee eee 14

Rowan v. U.S. Post Office Dep't,

4 EE er 19

Rubin v. Coors Brewing Co.,

Be ee GUD cece ccccssccuses 9, 10, 12

Shapero v. Kentucky Bar Ass'n,

Ns os wee ea eek nee 17

Simon & Schuster v. Members of N.Y. State

Crime Victims Bd., 502 U.S. 105 (1991) ........ 11

United States v. Nat'l Treasury Employees

eee, DED WB. GEO CSTD ccc ccc cc ccccccs 14

Virginia State Board of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

Sh CD 665 o0405466665050000% 8,9

Zauderer v. Office of Disc. Counsel of the

Supreme Court of Ohio, 471 U.S. 626 (1985) .. i7-18

Statutes and Constitutional Provisions:

eee ns EES, cde lse eb ceekeer passim

California Gov't Code, § 6254(f)(3) ......... passim

Dt cec¢es seats o6s8s4 0 ane ens 1,2, 8

Miscellaneous:

vi

J. Boswell, Life of Johnson LL. D.

(R. Hutchins ed. 1952)

“Py @Oeertz-wewnenrewewre et aeReteHKEeee ££ SS

STATEMENT OF INTEREST

The Washington Legal Foundation (WLF) is a nonprofit

public interest law and policy center with members in all 50

states.’ WLF engages in litigation and the administrative

process in a variety of areas. WHLF devotes a substantial

portion of its resources to promoting commercial free speech

rights. To that end, WLF has appeared before this Court

and other courts in numerous cases dealing with commercial

speech issues, including, most recently, Greater New

Orleans Broadcasting Ass'n v. United States, 119 S. Ct.

1923 (1999). See also 44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996); Rubin v. Coors Brewing Co., 514

U.S. 476 (1995).

STATEMENT

Section 6254(f)(1) of the California Government Code

obliges every State and local law enforcement agency to

“make public," without limitations pertinent here, the name,

occupation, date of birth and physical description of every

individual arrested by the agency as well as the date and

time of the arrest, the nature of the charges, the

circumstances surrounding the arrest, information regarding

outstanding warrants and parole or probation holds, and

' Pursuant to Supreme Court Rule 37.6, amicus states that no

counsel for a party authored this brief in whole or in part; and that no

person or entity, other than amicus and its counsel, contributed

monetarily to the submission of this brief. Letters of consent to the

filing of this brief from counsel fo. the parties have been filed with the

Clerk of this Court.

2

other information.” However, in the name of protecting the

“privacy” of arrested individuals, Section 6254(f)(3)

specifies that the address of any individual arrested by the

agency shall be released only to persons who declare under

penalty of perjury that (J) they have requested the

information solely for "scholarly," "journalistic,"

“political,” "governmental," or investigative purposes, and

(2) the information "shall not be used directly or indirectly

to sell a product or service to any individual or group of

individuals."

SUMMARY OF ARGUMENT

Section 6254(f)(3)'s restrictions on the use of arrestee

addresses violate the First Amendment.’ This is not a

statute that protects the privacy of arrestees but one that

2 Section 6254(f) specifies that "state and local law enforcement

agencies shall make public the following information, except to the

extent that disclosure of a particular item of information would endanger

the safety of a person involved in an investigation or would endanger the

successful completion of the investigation or a related investigation:

"(1) The full name and occupation of every individual

arrested by the agency, the individual's physical description

including date of birth, color of eyes and hair, sex, height and

weight, the time and date of arrest, the time and date of

booking, the location of the arrest, the factual circumstances

surrounding the arrest, the amount of bail set, the time and

manner of release or the location where the individual is

currently being held, and all charges the individual is being

held upon, including any outstanding warrants from other

jurisdiction and parole or probation holds.”

> Contrary to Petitioner’s brief, the constitutionality of Section .

6254's restrictions on access to, or the use of, information regarding

victims or witnesses is not at issue in this case.

3

blocks offers of legal and other assistance to arrestees in the

wake of an arrest—simply because those offers propose a

commercial transaction or otherwise are not expressly

permitted. Section 6254(f)(3) allows "noncommercial" uses

of an arrestee's address that can destroy an arrestee's

privacy, but prohibits "commercial" uses that can help the

arrestee in time of need. The statute's categorical

preference for "scholarly," "journalistic," "political,"

"governmental," and investigative uses of arrestee addresses

over uses that facilitate commercial speech is impermissible.

For these and the other reasons set forth below, Section

6254(f)(3) violates the First Amendment.

1. Section 6254(f)(3) impermissibly favors "noncom-

mercial" speech over “commercial” speech. The asserted

governmental interest—protecting the privacy of arrestees—

does not support the statute's differential treatment of

"commercial" and "noncommercial" uses of arrestee address

information. If anything, the "noncommercial" uses of an

arrestee's address that are authorized by the statute pose a

greater threat to the arrestee's privacy than the

"commercial" uses that the statute prohibits. Section

6254(f)(3) thus suffers from the same constitutional defect as

the newsrack ordinance invalidated in City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410 (1993). This Court

invalidated that ordinance because the interests it was

claimed to serve—aesthetics and safety—did not support the

ordinance's distinction between newsracks containing

commercial handbills and newsracks containing editorial

material. If Section 6254(f)(3) required persons seeking

arrestee addresses to swear that they would not use that

information for "scholarly," "journalistic," or "political"

purposes, but only to offer products and services for sale,

the limitation would plainly be held to violate the First

4

Amendment. The same result must follow where "noncom-

mercial" speech is favored over "commercial" speech.

2. Section 6254(f)(3) also discriminates impermissibly

within the categories of "commercial" and "noncommercial"

speech. Under the clause permitting "journalistic" uses of

arrestee addresses, a newspaper may use an arrestee's

address to obtain a circulation-boosting interview with the

arrestee, his family, or his neighbors; but the same

information may not be used by a lawyer to offer legal

representation to the accused. Under the clause permitting

"political" uses of arrestee addresses, a politician could hold

a press conference in the neighborhood of the accused to

excoriate the crime; but a religious institution may not use

the same information "to provide comfort" to the accused,

as Petitioner acknowledges (Pet. Br. 12), and a legal-aid

clinic could not use the information to offer the accused even

free \egal assistance—because those are not purposes the

Statute permits.

Even if the government might withhold arrestee

addresses altogether, the First Amendment prohibits the

government from conditioning access to information within

its control on a person's pledge to use that information only

for officially approved expression. Such a condition violates

the First Amendment’s principle of "equal access" that must

apply “once the government has opened its doors."

Houchins v. KQED, Inc., 438 U.S. 1, 16 (1978) (Stewart,

-J., concurring).* The State may not avoid its constitutional

* In this case, the government had fully “opened its doors” to third

parties seeking arrestee address information. It subsequently changed

the law to bar access to persons whose expressive uses of this

(continued...)

5

obligation of content-neutrality by “opening its doors" only

to those who pledge in advance to use the information only

for government-approved purposes. Section 6254(f)(3)

impermissibly discriminates against expression on the basis

of its content and overturns the longstanding rule that the

government has no copyright in government information.

Its discrimination is particularly egregious because it is the

State, itself, that benefits when offers of legal assistance to

an arrestee are curtailed.

3. Section 6254(f)(3) is not narrowly tailored to serve

a substantial governmental interest. The "privacy" interest

invoked by the State in this case—the supposed interest of an

arrestee in not being contacted by anyone offering a product

or service, regardless of the manner or timing of the contact

or the nature of the proffered product or service—is not

constitutionally substantial. The arrestee obviously has a

compelling interest, which Section 6254(f)(3) completely

ignores, in learning about the availability of legal and other

assistance in the wake of an arrest, as well as other goods

and services for which the arrest may indicate a need. This

Court, on the other hand, has held that speech may be

curtailed to protect a listener's privacy only if "substantial

privacy interests are being invaded in an essentially

intolerable manner." Consolidated Edison Co. v. Public

Service Comm'n, 447 U.S. 530, 541 (1980). There is

nothing so inherently vexatious or injurious about a directed

solicitation for goods or services, including offers of

religious counseling or legal assistance, paid or unpaid, that

could justify Section 6254(f)(3)'s blanket ban on the use of

arrestee addresses for non-permitted purposes.

*(...continued)

information the government disapproved. See Pet. Br. 3-5.

6

Assuming that the government has a substantial interest

in protecting arrestees from some targeted communications,

that interest cannot support the permanent and unqualified

ban on commercial and other uses of arrestee address

information that Section 6254(f)(3) imposes. This Court nas

upheld prophylactic rules prohibiting lawyers from soliciting

clients in person. or by direct mail in the immediate

aftermath of an accident; but these rules were upheld on the

basis of the causal link between the particular

communication and the particular harm to be avoided, and

these rules were no broader than necessary to avoid the

harms in question. Section 6245(f)(3), by contrast, bars any

use of arrestee addresses for commercial and other

solicitations, without regard to the content of the

solicitation, the time when the solicitation is made, or the

manner in which the solicitation is made. Such a

blunderbuss restriction on speech cannot be justified in the

name of protecting an arrestee's "privacy."

ARGUMENT

I. SECTION 6254(f)(3) IMPERMISSIBLY FAVORS

"NONCOMMERCIAL" SPEECH OVER "COM-

MERCIAL" SPEECH

This Court has squarely held that the First Amendment

prohibits the government from treating "noncommercial"

speech more favorably than "commercial" speech when

interest the government purports to be serving is unrelated

to any distinction between the two categories of eapression.

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410

(1993). Section 6254(f)(3) suffers from this fundamental

flaw. The State's asserted interest—protecting an arrestee's

privacy—does not support the statute's differential treatment

7

of "commercial" and "noncommercial" uses of arrestee

addresses.

Whether an individual's privacy is violated by a third

party's use of an individual's address—and the extent to

which the individual's privacy is violated—is not determined

by whether the information is used for a “commercial” or

"noncommercial" purpose. Having one's address appear on

the front page of the local newspaper, or being paid a visit

by Geraldo Rivera and a camera crew, is surely a greater

insult to one's "privacy" than receiving an offer of legal

services, drug abuse counseling, or driving lessons through

the mail, as the courts below recognized. See 146 F.3d at

1140; 946 F. Supp. at 828. Section 6254(f)(3) thus

"permit(s] a variety of speech that poses the same risks the

Government purports to fear," while curtailing "messages

unlikely to cause any harm at all." Greater New Orleans

Broadcasting Ass'n v. United States, 119 S. Ct. 1923, 1935

(1999).°

* Petitioner contends that Section 6254(f)(3) does not restrict

speech but merely requires third parties such as Petitioner to discover

arrestee address information through other sources. Pet. Br. 15; U.S.

Br. 20. As the District Court recognized, however, Section 6254(f)(3)

functions as a restriction on commercial speech because "[t]he govern-

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

nating it to everyone except commercial users." 946 F. Supp. at 825

(emphasis omitted). Even if arrestee address information could be

obtained through other sources, this Court has held that restricting one

means of access to a speaker's audience is impermissible even if alter-

native means remain available. Discovery Network, 507 U.S. at 427

(citing Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60 (1983)); see

also Consolidated Edison, 447 U.S. at 541 n.10 ("government may [not]

justify a content-based prohibition by showing that speakers have

alternative means of expression"); Linmark Assocs., Inc. v. Township of

(continued. ..)

8

Indeed, in view of the information about an arrestee that

Section 6254(f)(1) requires to be made public without

limitation (name, occupation, physical description, nature of

charges, outstanding warrants, etc.), the real effect of

Section 6254(f)(3) is not to protect an arrestee's "privacy"

at all, but instead to prevent the individual from being con-

tacted by those in a position to meet the individual's most

urgent needs in the wake of an arrest.° Through Section

6254(f)(3), the State—which has arrested the individual—

strengthens its own prosecutorial hand by limiting the indi-

vidual's access to legal and other assistance, while simul-

taneously authorizing the dissemination of address infor-

*(...continued)

Willingboro, 431 U.S. 85, 93 (1977) (alternatives to which sign ban

relegated sellers, which entailed “more cost" to sellers and were "less

effective” in reaching audience, were not constitutionally adequate).

Similarly, even if arrestees have other means of identifying sources of

legal and other assistance, it is no answer that the listeners’ need for

information "should cause them to take advantage of the alternative of

digging it up themselves. We are aware of no general principle that

freedom of speech may be abridged when the speaker's listeners could

come by his message by other means. Virginia State Board of Pharmacy

v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757 n.15

(1976). Here, as in Virginia Pharmacy, “the recipient's great need for

the information sought to be disseminated * * * makes the * * * First

Amendment claim a stronger rather than a weaker one.” /d.

® Petitioner contends that Section 6254(f)(3) protects arrestees from

discrimination in hiring and access to credit. Pet. Br. 10, 31-32. This

contention is fanciful because, notwithstanding Section 6254(f)(3)'s

limitation on the use of address information, Section 6254(f)(1) requires

the names of all arrestees to be made public.

9

mation for "noncommercial" purposes that will maximize the

sacrifice of the individual's privacy.’

At best, Section 6254(f)(3) reflects the impermissible

assumption that "commercial" uses of information are

intrinsically less valuable than "noncommercial" uses and

for that reason may be more readily restricted. This Court,

however, has held that commercial speech may not be

treated as categorically less "valuable" than noncommercial

speech. The Court has stressed that an individual's interest

in receiving commercial information "'may be as keen, if

not keener by far, than his interest in the day's most urgent

political debate,'" Rubin v. Coors Brewing Co., 514 U.S.

476, 482 (1995) (quoting Virginia State Board of Pharmacy

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

763 (1976)), and the Court has affirmed "the general rule

that the speaker and the audience, not the government,

assess the value of the information presented," Edenfield v.

Fane, 507 U.S. 761, 767 (1993); see Greater New Orleans

Broadcasting, 119 S. Ct. at 1935-36 (characterizing this

"general rule" as a "presumption"). Accordingly, where—

as here—the government undertakes to restrict speech in the

” Of. Ficker v. Curran, 119 F.3d 1150, 1156 (4" Cir. 1997)

("[W]hen the state itself is prosecuting a defendant, it cannot lightly

deprive its opponent of critical information which might assist the

exercise of even a qualified right.") (invalidating restriction on lawyer

solicitation in traffic offense cases). Petitioner, the Los Angeles Police

Department, is a welcome, if unexpected, champion of the privacy rights

of arrestees. The District Court, noting that Section 6254(f)(3) was

proposed by state and local law enforcement agencies and district

attorneys’ offices, suggested that the provision “may have been intended

to prevent arrestees from obtaining counsel because law enforcement

agencies find it easier to deal with arrestees who are not represented by

counsel.” 946 F. Supp. at 828-29 & n. 7.

10

name of a non-speech related interest such as "privacy," it

may not treat commercial speech categorically as less

"valuable" than noncommercial speech, or as intrinsically

more invasive. See Discovery Network, 507 U.S. at 418-19,

424-28.°

Section 6254(f)(3) suffers from the same constitutional

defect as the ordinance invalidated by this Court in

Discovery Network, whose "major premise," like Section

6254(f)(3)'s, was that "commercial speech has only a low

value" relative to noncommercial speech. 507 U.S. at 418-

19. See also 44 Liquormart, Inc. v. Rhode Island, 116 S.

Ct. 1495, 1518 (1996) (Thomas, J., concurring) (rejecting

viewpoint that "commercial" speech is of "lower value" than

"noncommercial" speech). But just as a newsrack's affront

to aesthetic values does not depend on whether it contains

apartment listings or editorial matter, the sacrifice of an

arrestee's privacy through the use of his or her address does

not depend on whether the use is "commercial" or

* Section 6254(f)(3) restricts commercial speech by prohibiting

address information from being used for commercial purposes, but the

address information, itself, is not intrinsically "commercial" speech.

The “speech” that United Reporting publishes—that a particular person

lives at a particular address—is simply “an unadorned, accurate state-

ment.” See Rubin, 514 U.S. at 494 (1995) (Stevens, J., concurring).

The Ninth Circuit incorrectly concluded (146 F.3d at 1136-37) that

United Reporting was engaged in "commercial speech” merely because

it offers the address information for sale. See City of Lakewood v. Plain

Dealer Publ'g Co., 486 U.S. 750, 756 n.5 (1988); New York Times Co.

v. Sullivan, 376 U.S. 254, 265-66 (1964); Murdock v. Pennsylvania, 319

U.S. 105 (1943).

* For example, Senator Peace, a proponent of the legislation

quoted by the District Court, declared that, while arrestee address

information was "justifiably public in many ways, the unsolicited direct

mail advertisements are unwarranted.” See 946 F. Supp. at 826.

“noncommercial.” See also Bolger v. Youngs Drug Prod.

Corp., 463 U.S. 60, 71-72 (1983) (government's asserted

interest in protecting the public from "offensive" speech did

not justify differential treatment of commercial and

noncommercial speech). The privacy interest asserted by

the State is simply unrelated to any distinction between

"commercial" and “noncommercial” speech. Discovery

Network, 507 U.S. at 428, 430. The uses of address

information that are allowed threaten the same harms as

those claimed to be threatened by the uses that are

disallowed. °

Petitioner attempts to rescue Section 6254(f)(3) from

this infirmity by arguing that the statute reflects a "balance"

between "maintaining individual privacy" and "fostering an

informed public." Pet. Br. 2; id. at 32. This Court rejected

a similar attempt to make a virtue out of statutory

inconsistency in Greater New Orleans Broadcasting. There,

the government sought to justify Section 1304's exemption

for casino-gambling advertising by Indian tribes as enabling

tribes to generate revenues dedicated to tribal welfare—even

though the exempted advertising undercut the government's

interest in reducing the social costs of casino gambling,

© See also Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

513 (1981) (city's interest in aesthetics and traffic safety did not justify

distinction drawn by ordinance between commercial billboards, which

were allowed, and noncommercial billboards, which were banned);

Carey v. Brown, 447 U.S. 455 (1980) (state's interest in protecting

residential privacy could not sustain statute permitting labor picketing but

prohibiting non-labor picketing); Simon & Schuster, Inc. v. Members of

N.Y. State Crime Victims Bd., 502 U.S. 105, 120 (1991) (distinction

drawn by "Son of Sam” law between income derived from criminal's

descriptions of his crime and other sources “has nothing to do with"

State's interest in transferring proceec of crime to victims).

12

which was the asserted justification for Section 1304's

advertising restrictions. This Court rejected the

government's proffered justification on the ground that such

tribal advertising, whatever its benefits, presented the very

same dangers as the speech that the restrictions imposed by

Section 1304 were justified as a means of avoiding. 119 S.

Ct. at 1934-35. So, here, the State's asserted interest in

"fostering an informed public" cannot justify an exemption

for "noncommercial" uses of arrest information that present

the very same dangers to “privacy” that Section 6254(f)(3)'s

restrictions on "commercial" uses are intended to prevent.

The statute's distinction between "commercial" and

"noncommercial" uses of arrest information "distinguishes

among the indistinct" (id. at 1935) and "makes no rational

sense" if the State's “true aim" is to protect an arrestee's

privacy. Rubin, 514 U.S. at 488.

Ironically, the "balance" purportedly struck by Section

6254(f)(3) completely fails to take into account the arrestee's

interest in being “informed” about the availability of

assistance that may be needed in the wake of an arrest. An

arrestee's interest in hearing from those able to provide such

assistance is certainly more immediate and compelling than

the public's interest in learning where the arrestee lives by

reading about it in newspapers or viewing it on the evening

news. In the name of protecting the arrestee's "privacy,"

Section 6254(f)(3) keeps the arrestee in the dark about the

availability of urgently needed services. No weight at all

was placed on the arrestee's interest in learning about the

availability of such services. Instead, Section 6254(f)(3)

treats the arrestee's interest in such knowledge as non-

existent, and the fact of the speaker's commercial motive as

both controlling and fatal. This hierarchy of values is

contrary to this Court's commercial speech decisions. Cy.

13

Greater New Orleans Broadcasting, 119 S. Ct. at 1930

("even if the [speaker's] interest in conveying these

messages is entirely pecuniary, the interests of, and benefits

to, the audience may be broader") (citations omitted).

Petitioner argues that the government should not be

forced to choose between allowing unrestricted use of

arrestee address information, on the one hand, and

forbidding any use of arrestee address information, on the

other. Pet. Br. 10; see U.S. Br. at 12, 33. That choice,

however, is compelled by the First Amendment's

requirement of content-neutrality. See Discovery Network,

507 U.S. at 427-28 (content-neutrality between

"commercial" and “noncommercial” speech must be

observed "even if we assume, arguendo, that the city might

entirely prohibit the use of newsracks on public property,"

for "as long as this avenue of communication remains open,

these devices continue to play a significant role in the

dissemination of protected speech").

Il. SECTION 6254(f)(3) IMPERMISSIBLY DIS-

CRIMINATES WITHIN THE CATEGORIES OF

COMMERCIAL AND NONCOMMERCIAL

SPEECH

It would be bad enough if Section 6254(f)(3) only

favored "noncommercial" speech, as a category, over

“commercial speech,” as a category.'' But Section

'' The United States argues that Section 6254(f)(3)'s discrimination

between “commercial” and “noncommercial” speech is not subject to

heightened scrutiny because it involves "no question of distinctions based

upon viewpoint.” U.S. Br. 11. But "the First Amendment means that

(continued...)

14

6254(f)(3) also discriminates within the categories of

"commercial" and “noncommercial” speech. Section

6254(f)(3) permits the use of address information in the

preparation of articles and research that help sell newspapers

("journalistic” purposes) and books ("scholarly" purposes).

These uses not only sell “products” but are generally

intended to produce a profit.” Section 6254(f)(3) also

permits the use of address information by licensed

investigators, who normally are paid for their work.

What Section 6254(f)(3) prevents are uses of address

information that involve offers of goods and services to

arrestees. A newspaper may use address information to

arrange a circulation-boosting interview with the prime

suspect in a sensational crime, but a driving school may not

use address information to contact individuals whose arrests

for traffic offenses suggest that they may have an interest in

improving their driving skills.

'(.. continued)

government has no power to restrict expression because of its message,

its ideas, its subject matter, or its content.” Police Dep't of Chicago v.

Mosley, 408 U.S. 92, 95 (1972) (emphasis added); Consolidated Edison

Co., 447 U.S. at 537 (invalidating viewpoint-neutral agency order that

allowed utility bill inserts to present information on some subjects, but

not to address public controversies); Discovery Network, 507 U.S. at

428-29 (invalidating ordinance that banned commercial newsracks but

allowed noncommercial newsracks because, “by any commonsense

understanding of the term, the ban is content based” and the city had

failed to offer any justification for the ordinance that was “content

neutral”).

" Of. J. Boswell, Life of Samuel Johnson LL. D. 302 (R. Hutchins

ed. 1952) ("No man but a blockhead ever wrote, except for money.")

(quoted in United States v. National Treasury Employees Union, 513

U.S. 454, 469 n.14 (1995)).

15

Similarly, Section 6254(f)(3) does not permit all

noncommercial uses of arrestee address information. As

Petitioner acknowledges, a political reformer may use

arrestee address information to garner support for a

campaign against "police brutality" (Pet Br. 13), but a

religious Organization may not use the same information "to

provide comfort" to the accused (id. at 12).

Petitioner insists that Section 6254(f)(3) does not “deny

a benefit to any * * * organization because that organization

engages in disfavored speech” (Pet. Br. 11), but that is

precisely what the statute does. The "benefit" at issue

here—use of the addresses of individuals arrested by State

and local law enforcement agencies—is available only to

persons and groups who pledge to use that information only

for communications approved by the State and who forswear

uses disapproved by the State. This constitutes censorship,

which the First Amendment forbids.

Indeed, Section 6254(f)(3) functions as a form of prior

restraimt, circumscribing the purposes for which information

made available by the government is permitted to be used.

Section 6254(f)(3) is particularly egregious because it

handicaps arrestees in criminal cases in which the State,

itself, is a party. This aspect of the statute invites the

concern that "the stated interests are not the actual interests

served by the restriction." Edenfield, 507 U.S. at 768."°

‘> Petitioner's rhetoric-laden brief also implies that there is

something improper about a business such as United Reporting meeting

the market's demand for information available from the government.

But Petitioner never explains why, if it is “exploitation” for United

Reporting to facilitate contacts between an arrestee and defense lawyers

(continued...)

16

Ill. SECTION 6254(f)(3)'S PERMANENT AND UN-

QUALIFIED BAN ON THE USE OF ADDRESS

INFORMATION IS NOT NARROWLY TAILORED

TO SERVE A SUBSTANTIAL GOVERNMENTAL

INTEREST

The government's asserted interest in protecting the

"privacy" of arrestees cannot support the permanent and

unqualified ban on the commercial use of arrestee addresses

that Section 6254(f)(3) imposes. This Court has stated that

"the ability of government ‘to shut off discourse solely to

protect others from hearing it [is] dependent upon a showing

that substantial privacy interests are being invaded in an

essentially intolerable manner.'" Consolidated Edison Co.

447 U.S. at 541 (citation omitted); see also Edenfield, 507

U.S. at 769 (government may intervene where solicitation is

pressed with "such frequency or vehemence as to intimidate,

vex, or harass the recipient") (citing Ohralik v. Ohio State

Bar Ass'n, 436 U.S. 447, 462 (1978)). Applying that

principle, the Court has upheld a Florida bar rule prohibiting

direct-mail solicitations of victims in the immediate

aftermath of accidents, finding that such solicitations—by

reason of their particular content and their particular

timing—are an invasion of privacy that cause their recipients

"substantial injury." Florida Bar v. Went for It, Inc., 515

U.S. 618, 627-32 (1995).

But the Court has not upheld restrictions on communi-

cations directed to the home—even targeted direct-mail

'(.. continued)

(e.g., Pet. Br. 9, 13, 15, 21), it is not also “exploitation” for a journalist

or scholar to use the same information to help sell newspapers or books,

or for a politician to use this information to advance his or her career.

17

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

466 (1988)—in the absence of a finding of such "concrete,

nonspeculative harm." Florida Bar, 515 U.S. at 629. To

the contrary, the Court has held that the government may

not, in the name of protecting residential "privacy," prohibit

visits by a door-to-door solicitor or communications by mail

simply because the recipient might find the visits intrusive

or the communications objectionable. See Consolidated

Edison Co., 447 U.S. at 542 & n.11 (billing inserts); Martin

v. City of Struthers, 319 U.S. 141 (1943) (door-to-door

solicitation); see also Bolger, 463 U.S. at 71-72 (direct-mail

advertisements). The Court has rejected privacy

justifications for limits on solicitation where those who are

unreceptive can simply "terminate the call," Edenfield, 707

U.S. at 776, or throw the letter in the trash, Bolger, 463

U.S. at 72.

In contrast to the restriction upheld in Florida Bar,

Section 6254(f)(3) prevents all solicitations to arrestees,

regardless of what they offer and regardless of when or how

they might be made, and the statute's restriction is

permanent. Petitioner's ultimate justification for Section

6254(f)(3) is that an arrestee will experience "a sense of

personal violation at the knowledge that [his or her] address

and status as an arrestee * * * is on numerous commercial

mailing lists." Pet. Br. 31. But this is merely an ornate

way of saying that an arrestee may find receiving a directed

solicitation to be "embarrassing" —a justification this Court

has repeatedly held is nor sufficient to support limitations on

commercial speech. See Zauderer, 471 U.S. at 648; Bolger,

463 U.S. at 71-72; Carey v. Population Services

International, Inc., 431 U.S. 678, 701 (1977). This Court

has emphasized that "broad prophylactic rules may not be so

lightly justified if the protections afforded commercial

18

speech are to retain their force." Zauderer, 471 U.S. at

649."

Petitioner's claim that arrestees will experience such a

sense of embarrassment is sheer assertion, which cannot

justify a curtailment of commercial speech. Edenfield, 507

U.S. at 770-71 (State's burden of justification is not satisfied

"by mere speculation or conjecture"; State "must

demonstrate that the harms it recites are real"). It is at least

equally likely that arrestees would welcome, and be grateful

for, offers of legal or other assistance that may follow in the

wake of an arrest. It does not appear that the Legislature,

when it was considering Section 6254(f)(3), heard any

complaints from individuals who actually had received

directed solicitations following their arrest. See Pet. Br. 4.

On the other hand, United Reporting produced "affidavits

from many arrestees stating that they do not feel that the

solicitations [barred by Section 6254(f)(3)] invaded their

privacy and that they found them helpful in obtaining legal

representation or other services," and Petitioner filed no

contrary affidavits. 946 F. Supp. at 828. Petitioner also

never explains how a person's supposed sense of "personal

violation" at receiving a communication directed to him or

'* It is no coincidence that Petitioner has defined the relevant injury

as the sense of “personal violation” that supposedly flows from being on

a mailing list. That is, in fact, the only “injury” to privacy that Section

6254(f)(3) can be considered tailored to prevent. "The means fit the

ends only because the ends were defined with the means in mind."

Members of the Los Angeles City Council v. Taxpayers for Vincent, 466

U.S. 789, 826 (1984) (Brennan, J., joined by Marshall and Blackmun,

JJ., dissenting). See Amicus Brief of New York at 15-16 (attempting to

salvage Section 6254(f)(3) from underinclusiveness by arguing that the

government is entitled to distinguish among “different types of privacy,”

“permitting the invasion of one type of privacy” while “avoiding

infringements of other types").

19

her as an arrestee can be distinguished in any meaningful

way from the person's sense of "personal violation" at

having been arrested in the first place.'®

Petitioner's professed desire to shelter arrestees from

such hypothesized distress is insubstantial and cannot trump

either an arrestee’s own First Amendment interest in re-

ceiving offers of assistance that may be critical in the wake

of the arrest, or a speaker's independent First Amendment

interest in communicating with the arrestee.

'S Even if some arrestees might object to having their addresses

provided to third parties, including potential legal and religious

counselors, the State could protect their privacy by withholding the

addresses of objecting arrestees. See Consolidated Edison, 447 U.S. at

542 n.11; Rowan v. U.S. Post Office Dep't, 397 U.S. 728 (1970).

20

CONCLUSION

_ Wherefore, the judgment of the Court of Appeals should

be affirmed.

Respectfully submitted,

David H. Remes

Counsel of Record

COVINGTON & BURLING

1201 Pennsylvania Ave., NW

Washington, DC 20004

(202) 662-5212

Daniel J. Popeo

Richard A. Samp

WASHINGTON LEGAL

FOUNDATION

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: July 20, 1999