LOS ANGELES POLICE DEPT. v. UNITED REPORTING PUBLISHING CORP
The former version of the California public records statute required a state or local law enforcement agency to make public the name, address, and occupation of every individual arrested by the agency. In 1996, the state amended the statute to require that a person requesting an arrestee's address declare, under penalty of perjury, that the request was being made for journalistic, scholarly, political, governmental, or investigative purposes, and that the address would not be used directly or indirectly to sell a product or service. The United Reporting Publishing Corporation publishes the "JAILMAIL" list, which provides the names and addresses of recently arrested individuals for its customers. United received its information from the Los Angeles Police Department and other California law enforcement agencies under the former version of the statute. United sought declaratory and injunctive relief to hold the amendment unconstitutional under the First and Fourteenth Amendments. Ultimately, the Federal District Court granted United summary judgment, on the ground that the amended statute was an impermissible restriction on commercial speech and thus violated the First Amendment. In affirming, the Court of Appeals concluded that the amended statute restricted commercial speech, which was entitled to a limited measure of First Amendment protection; and that although an asserted governmental interest in protecting an arrestees' privacy was substantial, the amended statute's numerous exceptions precluded the statute from directly and materially advancing such an interest.
Does California's amended public record statute, under which an arrestee's address disclosed by governmental agency may not be used to sell a product or service, violate the First Amendment's protection of commercial speech?
Legal provision: Amendment 1: Speech, Press, and Assembly
No. In a 7-2 opinion delivered by Chief Justice William H. Rehnquist, the Court held that the amended statute was not an abridgment of anyone's right to engage in speech, commercial or otherwise, but simply a law regulating access to information in the hands of law enforcement agencies. The Court concluded that United's facial challenge to the statute was not warranted, as there was "'no possibility that protected speech would be muted.'" Justice Rehnquist wrote for the Court that, "California could decide not to give out arrestee information at all without violating the First Amendment." Dissenting, Justice John Paul Stevens expressed the view that the amended statute was invalid as applied to the service, because California was denying access to information based on their intended use of the information for a constitutionally protected purpose, and that such discrimination was not justified by state interests.
Argument of Thomas C. Goldstein
Chief Justice Rehnquist: We'll hear argument next in Number 98-678, the Los Angeles Police Department v. United Reporting Publishing Corporation.
Mr. Goldstein: Mr. Chief Justice, and may it please the Court:
California Government Code section 6254(f)(3) requires Government agencies to provide access to the addresses of arrestees and crime victims in only a few instances, none of which include commercial solicitation.
The statute in this respect is similar to at least 80 laws from around the country that limit access to a wide variety of Government records, including campaign finance reports, welfare records, accident reports, and even the personal financial disclosure forms of the members of this Court.
Respondent contends that subsection (f)(3) is a speech restriction, but the text of the statute, which I want to spend just a couple of minutes focusing on, shows that plainly is not true, and it is reprinted in the appendix to the blue brief at page 3.
One point to make at the outset is that subsection (f)(3) limits access to only addresses, not any of the other information that the State has about crimes and about crime victims and about arrestees, but subsection (f)(3), regarding the addresses of both the victims and the arrestees...
Chief Justice Rehnquist: Where is this in your brief, Mr. Goldstein?
Mr. Goldstein: The appendix to the blue brief, Mr. Chief Justice, at page 3.
Chief Justice Rehnquist: 3a?
Mr. Goldstein: And subsection (f)(3) teaches that with respect to addresses of both crime victims and arrestees, the State grants access only, quote, where the requester declares, under penalty of perjury, that the request is made for one of five specified purposes.
Those are, a scholarly, journalistic, political, governmental purpose, or investigation purposes by a licensed private investigator.
Justice O'Connor: Well, could the respondent just publish this in a little newspaper format and claim a journalistic exception?
Mr. Goldstein: That has never been tested.
In fact, the respondent requested a declaration under State law that they did have the right to publish this under the journalistic provision.
It's always been an open question.
The lower courts never reached it.
Chief Justice Rehnquist: So the statute permits the automatic release of the name of an individual.
It's just his current address that can't be given?
Mr. Goldstein: That is exactly right, Mr. Chief Justice, with respect both to the victim and to the arrestee.
Justice Kennedy: Well, the Jail Mail Register that's in the record, isn't that an illustration of what looks like a newspaper but really has a mailing list, or...
Mr. Goldstein: Well, I think the difficulty is, and again the lower courts never reached this question and it would remain open on remand, is what precisely respondent wants to do with the addresses, with respect to the Jail Mail Register.
If you look at the end, the last page of the different instances of the Jail Mail Register that are published, respondent isn't using the addresses for a journalistic purpose.
It is there simply creating an advertisement, just in the same way that in 44 Liquormart the advertisement of the prices in that case and other commercial speech cases were themselves not journalistic.
Justice Kennedy: So if the purpose controls, then assume this hypothetical.
An attorney goes to lunch with the publisher of the Los Angeles Times or the San Francisco Chronicle.
He says, you know, it's really very helpful that you're printing the names and addresses of the people who have been arrested for drunk driving, because I use that to solicit, or to give alcohol counseling or something.
I take it henceforward under the statute the newspaper could not publish those names because it's being used indirectly for that purpose.
Mr. Goldstein: No, and let me... that is exactly the distinction that I wanted to get to with the remainder of subsection (f)(3) in the text.
There is a misunderstanding by respondent in this facial challenge about what the statute does and what about... what use, indirectly or directly, to sell a product or service is.
The statute and the language that respondent focuses on, where it says that address information obtained pursuant to this paragraph, i.e., if you are trying to get it for one of the five permitted purposes, it shall not be used directly or indirectly to sell a product or service, is simply an enforcement provision.
It says that you cannot have access if you intend to get it for a legitimate purpose, such as journalism, but...
Chief Justice Rehnquist: Are you referring to a specific section of the statute now?
Mr. Goldstein: We're still within... Mr. Chief Justice, still within (f)(3), the last sentence.
It's over on page 4a now.
Justice Scalia: Okay.
Mr. Goldstein: It rolls over and it says, if you get it, or are trying to get access for one of the five permitted purposes, say, journalism in your hypothetical, Mr. Justice Kennedy, you get it for journalism, you can't then use it to sell a product or service.
It does not apply to third party end users, the attorney in your hypothetical.
It is only enforceable against the person who makes the representation under perjury that they are not going to... that it is not going to be used for the purposes of selling a product or service.
Justice Kennedy: You say it's not going to be used by that person.
Mr. Goldstein: No...
Justice Kennedy: But that statute doesn't say that.
Mr. Goldstein: No, that... with respect, the Los Angeles Times... and let me just take one quick detour.
No paper that we're aware of in Los Angeles actually prints this information on the question of irrationality, but the Los Angeles Times is publishing it for a journalistic purpose.
The principal reason is to educate the public.
That's why some papers do have police blotters.
We do not interpret the statute, at the point that the Los Angeles Times knows that some lawyer is using the information, to prohibit them from having access.
The statute is directed at bulk requesters such as respondents, or individual law firms, or chiropractors, or driving schools who come in and just have a commercial purpose for requesting access.
It is only enforceable against the individual requesting access, who has to make a declaration, under penalty of perjury, of what their purpose in asking for the information is.
Justice Ginsburg: Among political... permitted purposes is political, and I think I have some idea of what these others encompass, journalism, scholarly, but what is political?
Mr. Goldstein: Political was added at the same time as the amendment for adding governmental purposes, and it was, as we understand it, simply to make clear that it wasn't simply the Government then existing.
It could include partisan politics, electoral campaigns and the like.
It was just to draw out a further distinction between current governments and the possibility of...
Chief Justice Rehnquist: Is this a State statute, Mr. Goldstein, or an ordinance?
Mr. Goldstein: It is a State statute, Your Honor.
Justice Breyer: I'm still not totally clear on your explanation.
Are you saying that when someone gets the information and, say, lists 30 people, as I see on page... whatever this is, page 4 of the record, there's a big list of names and addresses, that what he has to promise is that his purpose in listing all these names and addresses and sending a piece of paper with that list to various people who pay, he has to promise that his purpose is not to get paid for the list?
Mr. Goldstein: It is not to sell a product or service, that is exactly...
Justice Breyer: So does the product or service mean, in other words, I who print this paper know that people want to get lists of names and addresses of victims...
Mr. Goldstein: No.
Justice Breyer: and therefore I will sell them this list, and I put a few articles in as a kind of cover-up.
Is that the idea?
Mr. Goldstein: What happens here, to focus on this exact example...
Justice Scalia: Yes.
Mr. Goldstein: is that if respondent wants the names to advertise in the Jail Mail Register that it has a product or service... and it does.
It has a dial-up service where you can get access to 3, on average, 350 names and addresses of arrestees every single day from Los Angeles alone, not to mention the 180 other law enforcement agencies.
If you are a newspaper, or you are the local television station, and you have a journalistic purpose, then you have a right to get access, but if your purpose in doing so is simply to sell a product or service, it doesn't qualify.
And if I could just make one qualification, and that is that there... the only reason there is some ambiguity here is that the statute was enjoined immediately.
The statute, under subsection 6253.4 contemplates that law enforcement agencies, local governments, will issue further guidance specifying exactly what the terms... and you asked the question, what exactly is political.
There will be further guidance.
Chief Justice Rehnquist: Well, had the statute never been construed by the State courts?
Mr. Goldstein: It has not.
There is a specific provision under which respondent or anybody else has the right to sue us, and that is subsection 6258, in State court saying, listen, I have a journalistic purpose.
The Los Angeles Police Department won't give me the information.
They should, I have a right to attorney's fees, and please order them to do so.
Chief Justice Rehnquist: How did the Ninth Circuit go about interpreting it, if there had been no State interpretation?
Mr. Goldstein: Improvidently, I think is the first answer, but the...
Chief Justice Rehnquist: So what's new?
Unidentified Justice: [Laughter]
Mr. Goldstein: What... I don't... section 6254, I don't think there's any question as between the parties that in the first place the Ninth Circuit got the statute wrong.
Both the district court and the Ninth Circuit said, under section 6254, anyone other than commercial users can have access to this information.
It was just wrong.
You can't get information for employment, to discriminate against arrestees on the... in employment, or for plain old nosiness, or if you're a chiropractor, or if you want to offer a nonprofit service.
They interpreted the statute just plainly in conflict with its plain meaning.
Justice Kennedy: There's a different in being nosy and being political?
Unidentified Justice: [Laughter]
Mr. Goldstein: There is.
There truthfully is.
If you just want to know what's going on in your neighborhood and you don't have any other purpose behind it, it's simply...
Justice Kennedy: Well, I read through this list of all the people who had been arrested in Sacramento.
I didn't know any of them.
Unidentified Justice: [Laughter]
Justice Souter: What if a newspaper had a different policy from the one that you tell us prevails, and simply did publish this information as a matter of course, and every day a reporter went down and requested it and got an accurate list and so on, and the paper published it.
Would the paper be in violation of the statute?
Mr. Goldstein: It would depend on the specific facts, and to take them just as you say, if all that they were doing... say that the Los Angeles Times publishes out... publishes a special version for lawyers, and it says, look, we've got everybody who's arrested for DUI, it would be a much closer case, and I think what you would see, honestly, is the California legislature addressing that problem.
There's nothing in the record to suggest...
Justice Souter: Okay, but we've got to work with what we've got here.
Mr. Goldstein: Right.
Justice Souter: Let's assume that the paper simply publishes this in one section of its regular edition, every day, a complete listing.
Would it be in violation of the statute?
Mr. Goldstein: It would not, but the...
Justice Souter: Why would it not, because when it made out its affidavit, it would know perfectly well, assuming the statute remained in its present form, that individuals such as the respondent here would use the information and in any event would know that the purveyors of services would use the information, so how could it make out the affidavit?
Mr. Goldstein: Because on the text of the statute the sentence about selling a product or service does not limit the scope of the first sentence.
If you have a journalistic purpose, you are not then limited by the fact... in interpreting what we mean by journalistic, by the fact that you know there will be an end user.
Justice Kennedy: Well, why isn't it journalistic to provide information to people who are interested in communicating with arrestees and victims?
Why isn't that at the core of journalism?
Mr. Goldstein: Because that is not... the press and the core of journalism, under the constitutional tradition that we have, and what we think of as police blotters, is to simply educate the public about what is going on in the community.
That's what the record in this case...
Justice Souter: So then you have to identify your journalism by the generality of the publication.
If somebody puts it in a... if the Los Angeles Times puts a separate section of this in its paper, surrounded by world news and State news and so on, it's okay, but a... an individual who claims to be a journalist only with the more limited audience that your alternative hypo of the lawyer's paper and so on published, that, in fact, would run afoul of this?
Mr. Goldstein: In the main, if you are publishing a police blotter, in the traditional, journalistic sense that is a journalistic purpose.
Let me again...
Justice Scalia: Why do you say that only a police blotter is journalistic?
I think those who have trade publications are journalists.
For a narrower audience, but I don't know how you can somehow... journalism does not include all of the press?
Mr. Goldstein: Journalism includes the press.
Justice Scalia: Well, the press is broken down into little subsets.
I mean, if a trade journal is using these names to sell the trade journal, just as a general circulation newspaper is putting the names on the police blotter down in order to sell the newspaper, I don't see any difference between the two situations.
Mr. Goldstein: The State and the legislative history explains this.
It was trying to preserve an instance where you are simply attempting to educate the public about what is going on with arrests.
But let me just specify again that we are now dealing with a problem of statutory construction, and not constitutional mandate, and this is a facial challenge to the statute.
It's never been applied to respondent.
Justice Stevens: May I ask...
Justice Scalia: Newspapers aren't trying to educate the public.
They're trying to sell newspapers.
Mr. Goldstein: Newspapers would not exist if they couldn't sell newspapers, but they are trying to educate the public, with respect.
Justice Stevens: May I ask you a question about the proceedings in the lower court?
I notice there's been a change in counsel up here and so forth.
Did the... your client take the position in the district court and the court of appeals that the Central Hudson test did not apply at all?
Mr. Goldstein: No.
The Los Angeles...
Justice Stevens: They didn't make the basic argument you're making now, in other words.
Mr. Goldstein: They did.
The Los Angeles Police Department's briefs below invoke all of this Court's decisions about right to access, and about how the standard is much lower.
We do say in the lower court briefs that this can be analyzed under Central Hudson, but we specify that the court has to give substantial more leniency...
Justice Stevens: What does Central Hudson have to do with our access cases?
I think if you assume that Central Hudson applies, you're assuming it's an abridgement of speech case rather than a denial of access case.
Mr. Goldstein: Well, the Los Angeles Police Department said below, and believes strongly here, of course, that this is an access case, that all that we do...
Justice Stevens: And what of our cases ever said Central Hudson applies to an access case?
Mr. Goldstein: I agree that it... none.
Justice Stevens: But they did agree below that Central Hudson was the test.
It seems to me they therefore were not even claiming it was not an access case, or that it was an access case.
Mr. Goldstein: With respect, on a full reading of the Los Angeles Police Department's briefs below, this case... this Court's cases like Houchin, Zemel and the like are cited and fully relied on.
Justice Breyer: I now see how they got into this, and I... I read the last sentence on 4a, where, to think that at its heart was case 1, not case 2.
Now, this is case 1.
I am not a journalist.
I am a businessman, and my business is to sell addresses of victims to people who will pay me for such a list.
I've never published a newspaper or anything that looks like a newspaper in my life.
I thought that was at the heart of this provision, and I thought secondarily was in the provision somebody who advertises for my product.
Now, you're saying that it's the second case that this is about, and you don't care about the first case.
Mr. Goldstein: Under the hypothetical, if you simply want to sell addresses of arrestees and victims, without regard to what somebody else is going to do with them, you just want to sell them, you don't know what they're going to do, you are prohibited from receiving access under the first sentence of subsection (f)(3) because you don't have one of the five...
Justice Breyer: Well then, I must also execute an affidavit, must I not...
Mr. Goldstein: You must.
Justice Breyer: that I am not going to, as an enforcement device, I, or... the language covers it only awkwardly, but I who want to sell to other people addresses of victims and have never published a newspaper must execute that declaration that I am not... want the information to sell a product or service, namely my product or service that I've just described.
Mr. Goldstein: And it is enforceable only as against you.
Justice Breyer: Yes, but I've now pushed you into this, because it seems to me that maybe that wasn't what this case was about.
I mean, is this case, or is the statute about my heartland case of a person who's not a journalist but wants to sell addresses of victims to other people?
Or is the statute about something that looks like a newspaper and advertises... you know, you can also get more addresses?
Mr. Goldstein: No, absolutely not.
The heartland of the statute is about the person who wants to get the 350 addresses and names every single day which aren't published anywhere else.
The hypothetical has come up about a potential ambiguity in the statute about who is a journalist, which has never been tested in this case, and we don't understand to be presented here.
What we are concerned about is that there are massive wholesale invasions of privacy that occur in the status quo.
In a sense, our Freedom of Information Act has been hijacked into something that it was never intended to do, which was to educate people about what the Government was doing.
And if I could...
Justice Souter: Do you accept the distinction that the Government's brief makes between what I think it called an intrinsic speech content on the one hand and information which is useful only for some purpose, e.g. in this case finding targets for solicitation?
Do you accept that distinction, and does your case rest upon it?
Mr. Goldstein: We do accept the distinction insofar as it means that respondent's sales of addresses aren't subject to the highest level of First Amendment scrutiny.
They aren't the press.
They may not be...
Justice Souter: No, but that... your argument for that is that it's part of a commercial enterprise, right?
Isn't that why?
Mr. Goldstein: No.
Justice Scalia: No.
Mr. Goldstein: Just simply on the perspective of them transmitting data.
Information is a commodity to respondent.
It has no intrinsic value.
Justice Souter: Well, information is a commodity to the New York Times.
Mr. Goldstein: Information is a means of communicating an idea for the New York Times.
But to get to the second half, possibly the more important part of your question...
Justice Souter: But I mean, I don't... I don't know that that is so.
One of the things the New York Times publishes are the names of public officials who are doing things.
That is not, that I can see, analytically different from publishing the name of somebody who has just run a red light and gotten pinched for it.
What is the distinction?
Mr. Goldstein: It is in a larger context, even... and the same is true of a police blotter.
They are trying to communicate what is going on in the community, but again, I really need to get to the second part of your question.
Chief Justice Rehnquist: Well, has the respondent ever claimed to be a journalist?
Mr. Goldstein: Respondent did request a declaration in the district court, and the district court never got to that part of the case, yes.
To get to the second part of your question, Mr. Justice, this case does not turn at all on that distinction because it is an access restriction.
It is enforceable only as an access restriction.
The only thing that we do is...
Justice Souter: Well, but one of the reasons why... I mean, we've got to make a... basically a category judgment, whether it's an access restriction or whether it's a speech restriction, and one of the reasons upon which we may make that categorization, it seems, is the reason behind my question.
So simply to say, well, this is an access case, I think begs the question.
Mr. Goldstein: Taking... take your question to the furthest.
Assume that respondent was the Los Angeles Times.
It is fairly clear, and the lower courts agreed, that we could limit access to everyone, including the Los Angeles Times.
This is a question of differentiation only.
Argument of Edward C. DuMont
Chief Justice Rehnquist: Thank you, Mr. Goldstein.
Mr. DuMont, we'll hear from you.
Justice Scalia: Mr. DuMont, could I follow on the question just asked, because it just... for me, it is difficult to view this as an access case rather than a speech restriction case once you have a provision in the law that says that journalists can obtain the information.
I mean, that in effect is saying this information can go out to the public at large.
There is no attempt to limit the... you know, as there would be in a need-to-know situation, where certain information is only given to... State secrets and so forth.
That seems to me an access restriction.
But once you give it to a newspaper you're saying the whole world can know this.
How can you possibly think this is an access restriction?
Mr. DuMont: Well, I think your question certainly gets to the heart of the case, which is that this case is about, in the first instance, access, who can have access.
In the second instance, it does impose a use restriction on people who are allowed to have access under the statute.
So fine, let's start with the restriction, the condition on access, and the cases that your question brings to mind are, for instance, the rape shield cases if you want to call them that, BJF, Cox Broadcasting, cases where information was released to the general public, is the way the Court characterized it, and in fact what the Court said was that it was released without qualification.
That was crucial to the Court's... the majority's holding in Florida Star v. BJF.
I think I'd like to focus on that, because what the Court did not say is that when the Government has information that it is under no strong form of constitutional compulsion to make public, generally public, the Court did not say that it may not condition its release of that information in certain ways.
And what California has done here is to say, look, we have some information in our files.
We would like to make it available for certain purposes but not others.
That is not a general release even when you give it to the press, because what they've said to the press is, you, too, may use it for journalistic purposes but not to sell a product or service, and let me give content to that by saying in our view what that would mean is, the L.A. Times can print the addresses, but it can't use them, for instance, for a subscription drive.
Justice Scalia: But somebody who reads the L.A. Times can use them for all of those commercial purposes.
Mr. DuMont: That's right, and that gets to your question of what level of scrutiny we're under, because normally what we would say is, the legislature can address a problem that it perceives one step at a time, and it may address the problem that it perceives, and I... it's fair to say on this record and from the legislative history that the problem that was perceived was not that journalists were printing those addresses, and that that was invading people's privacy, but that commercial services were gathering them and selling them to commercial solicitors.
Now, if we were in a world of heightened... of the most heightened First Amendment scrutiny, presumably that would not be enough, because we don't say the Government can proceed one step at a time normally in a true heightened scrutiny case, but this is not a true heightened scrutiny case, because this is not a case where what the Government has said is, you have information and you may not publish it.
What the Government has said is, we have information, and you may have it, but only for certain purposes, and only if you tell us you won't use it in this way, and that is an entirely different thing.
Justice Kennedy: Could the Government, or could the State pass a statute which said, we have... anyone can get access to this information, but it's a felony if you use it for any purpose other than scholarly, journalistic, political, governmental?
Mr. DuMont: What BJF and Cox Broadcasting suggests is that certainly in the... when you are dealing with the institutional press, it may very well not be enough to have a restriction set off somewhere else in a statute which puts the onus on the reporter, having gotten something which is facially perfectly available and says press release on the top, for that reporter to know that there's another restriction on access.
What we have here is something that before he gets the, or she gets the information, the reporter signs a paper...
Justice Kennedy: So what do you do with my statute?
I'm not quite clear where you come out on my... you say it's probably unconstitutional?
Mr. DuMont: I say if it's... applies to the press, it is probably unconstitutional under BJF, or at least it's constitutionally problematic.
Justice Scalia: Excuse me, only if it applies to the press?
I don't... is there some special status of the press under the First Amendment?
Justice Kennedy: I...
Mr. DuMont: The Court has been reluctant to recognize a special status.
Justice Scalia: Yes, so I don't know... I don't know of any, and it seems to me Joe Six Pack can do anything with the information that the press ought to be able to do with it.
Mr. DuMont: Well, the fundamental distinction that we draw out of BJF and Cox Broadcasting on this point is this one, that it may be unfair, the Court has said, to give somebody something that is facially perfectly available but then say, gotcha, there's another piece of a statute somewhere that you may not have known about that criminalizes...
Justice Scalia: Well, I don't think that was the point of Justice Kennedy's... he wasn't talking about tricking.
He was talking about saying, everybody can have the information, but you can only use it for particular purposes.
Is that really any different from this law, because when you say the press can have it you say anybody can have it...
Mr. DuMont: We... well...
Justice Scalia: but they can only use it for certain purposes.
Mr. DuMont: And we think that is perfectly permissible.
The question is, can the Government in one form or another, with sufficient safeguards to make sure that it is not tricking or hoodwinking anybody, put conditions on the release of information in its files?
The answer is yes.
It's done in a variety of Federal statutes.
It's done in a variety of State statutes, and we think...
Justice Kennedy: It's a condition subsequent on the use of information that's in, within a wide domain.
I've just never seen a case...
Mr. DuMont: No.
Justice Kennedy: like this, either for you or against you, I must admit.
Mr. DuMont: With respect, it is a condition precedent to getting the information.
Now, let me just suggest a way in which this case could be entirely different.
Suppose the statue said, we don't think that soliciting people is a good idea when they've just been arrested, so no matter where you got the address, you may not send a solicitation.
That is a case this Court has seen before, and it's one that's been very problematic.
This doesn't say that.
It says, if you have the address because you did the spadework yourself, you hung around the courthouse, you knew who was arrested, however you got it, if you had that address, you may sell it, you may use it to send information, you may do whatever you want with it, but you may not get that address from public records, compiled under compulsion for public purposes, and use it for a purpose that the State legislature of California has determined is not... is out of balance with the privacy invasion that it causes.
That's a standard sort of legislative determination about what use may be made of Government information and Government files, and it doesn't...
Justice Ginsburg: Mr. DuMont, could a State in a KQED type situation say, we're going to give investigative journalists access to our prisoners to interview them, but nobody else?
I mean, the notion that you can't give something to the press... if you give it to them, you have to give it to everybody, how would it work in that context, if the State is not obliged to do this, but decided it wanted to let investigative journalists have interviews with prisoners, but nobody else?
Mr. DuMont: Well, I think particularly in contexts where there are what amount to constraints on quantity... I mean, you can't have everybody traipsing through the prisons, so when you have a constraint on quantity, or there's a limited number of seats in a courtroom, you may make certain kinds of what would normally be neutral but I think can probably favor the press in some circumstances.
The members of the Court have suggested you could favor the press in that circumstance, and I think that would be a perfectly sensible thing to do.
The important thing here is, I think, to emphasize that no one is restricting United Reporting's ability to speak in any way that has to do with its own speech that it can... an unconstitutional condition case, for instance, is about someone who is at liberty to speak an idea that he has from some other source and is prohibited from doing that because the Government says, well, I won't give you a tax exemption, or I won't give you employment if you exercise your otherwise freely exercisable right to speak.
Here, United Reporting is not in a position to exercise that right unless it gets this information from the Government.
Now, either it has a right to get that information...
Justice Souter: As a practical thing, as a practical matter, is there a difference?
Justice Scalia: I mean...
Mr. DuMont: Yes.
Justice Souter: I've sat in courts... I mean, trial courts a lot of the time and I... people come before the courts for arraignment, and I don't know that their addresses are mentioned, so that I don't know that there's a practical way that, en masse, this kind of information really could be obtained unless it's obtained from the police.
Maybe there is, but I... so that's why it seems to me the practical effect of this may be the same thing as an absolute denial.
Mr. DuMont: There are a variety of kinds of information that the Government may have a practical monopoly or a near monopoly on, and what I would suggest is, for instance, the names of people who have HIV or AIDS may be...
Justice Scalia: But what about my question?
Justice Souter: What about the names of these people?
Is there a practical way to get this information en masse, except by getting it the prohibited way?
Mr. DuMont: En masse, probably not, the same way there is not to get the list...
Justice Souter: Yes, so that as a practical matter, this is a prohibition on a form of commercial speech.
Justice Breyer: I mean...
Mr. DuMont: No.
Justice Souter: that's the practical effect of it, it seems to me.
Mr. DuMont: It is a public restriction which was undertaken with the consciousness that it would not facilitate a certain kind of commercial speech, and that is...
Justice Souter: Right, but I think... and I don't want to put words in your mouth, but I think you are conceding that the argument that they can use it if they get it from any other source really does not meet the objection, because the objection is that there is a category of commercial speech which in fact is being prohibited by the prohibition on this source of supply, and I think you agreed that in practical terms that argument is true, sound.
Mr. DuMont: What I do not agree with is that simply because the Government may have a practical monopoly on compelling the compilation of the information... and again I would go to the case of public health.
There may be things the Government compels you to disclose for compelling public purposes, but it ought not to be the rule that the First Amendment then requires that the Government either disclose that, or, if it disclose it at all, disclose it completely to the winds.
Justice Breyer: Well, that's... I mean, are you conceding that this... I mean, I don't know, maybe it's obvious... skip it.
The light's on.
Mr. DuMont: Thank you.
Argument of Bruce J. Ennis
Chief Justice Rehnquist: Thank you, Mr. DuMont.
Mr. Ennis, we'll hear from you.
Mr. Ennis, as I read your brief, you not only concede... contend that the limitations here on potential use are bad under the Constitution, but that the Los Angeles Police Department could not, consistently with the Constitution, have withheld this information from... have refused this information to everybody.
Mr. Ennis: Chief Justice Rehnquist, it is not essential to our argument whether the LAPD could withhold this information from everyone.
The key to our argument is, this statutory scheme requires First Amendment review because it discriminates between speakers in order to reduce the amount of commercial speech.
Chief Justice Rehnquist: Then I gather pages 35 through 49 of your brief were not really essential.
Mr. Ennis: Not to win this case.
They are additional arguments why we could win this case if we don't win on the narrower ground.
Our narrower ground is that, regardless of the form of the law, any law that discriminates between speakers in order to reduce a category of constitutionally protected speech requires First Amendment review.
The Government does not claim that this discrimination is necessary in order to preserve any scarce resource...
Justice Ginsburg: But Mr. Ennis, may I stop you at that first point, because if you regard this case as one where there is no right of access at all, unless the Government chooses to give it, then the Government's choice to give it to some is increasing speech where there would have been none before, so I think it's really important to address the Chief's question.
Are we to assume for purposes of this case that the Government could say, nobody gets this information?
Mr. Ennis: Justice Ginsburg, I think that's a very difficult question, and it's not necessary to resolve that question here.
As KQED itself makes clear, the Government there could have excluded everyone from coming into the prison, but as Justice Stewart's concurring opinion, which made the plurality, stresses, although the press does not have a superior right of access above and beyond what the prison accords to the public, once the prison accords an access right to the public, the press has an equal right of access unless there is a strong justification for the discrimination.
Equality of access, once the prison has opened its doors to some, was the key concept in KQED.
That's our case.
Justice O'Connor: But I don't understand why you don't answer Justice Ginsburg's question directly.
Could the Government say, nobody is going to be given the addresses of crime victims, period?
Mr. Ennis: Your Honor, for the...
Justice Scalia: And if not, why not?
Mr. Ennis: For the reasons...
Justice O'Connor: Why isn't that a pure access issue?
Mr. Ennis: For the reasons we list in our brief, it is our view that in this area, arrests, a total denial of access would be highly constitutional suspect.
The Government, you must remember, is the one who has arrested these individuals, and if it's denying access in order to prevent lawyers from gaining access to assist and defend them against the Government itself, that's an access question in which the Government has a conflict of interest and I think might violate the Constitution, but the Court doesn't have to go there.
Justice O'Connor: Under what holding of this Court?
I mean, this is a far-out argument, and I want to know...
Mr. Ennis: Justice O'Connor, there is...
Justice O'Connor: how you back that up.
Mr. Ennis: there is no specific holding of this Court...
Justice Scalia: No.
Mr. Ennis: which you could apply to say, as a rote matter, we would win that general access point.
Justice Scalia: Victimless...
Mr. Ennis: But there are holdings of this Court which make clear that once the Government has opened its doors to broad access, it cannot discriminate in access without a governmental interest that is unrelated to the suppression of expression.
If you look, for example...
Justice Kennedy: In what case... do you cite them?
Mr. Ennis: Well, two cases I think are quite instructive, Justice Kennedy.
In Discovery Network this Court applied intermediate scrutiny where
"the burden on commercial speech was imposed by denying the speakers access to public property. "
Justice Stevens: No, but that wasn't access to the information.
Mr. Ennis: No.
Here, the burden on commercial speech is imposed by denying the speaker access to information, and that brings me to the second case, Justice Stevens.
Justice Breyer: Well, before you get to the second, I'm stuck on the first.
That is, is my case 1... you remember my case 1?
It was simply the person who sells information.
Mr. Ennis: I do, Justice Breyer, and the answer to your question is both.
Justice Breyer: No, no...
I don't remember his case 1.
Unidentified Justice: [Laughter]
Justice Breyer: I'm not repeating...
Justice Scalia: I don't remember his case 1.
Would you give me his case 1?
Unidentified Justice: [Laughter]
Justice Breyer: I'm not repeating my own question.
What I wanted to know is...
Unidentified Justice: [Laughter]
Justice Breyer: Is that commercial speech?
I mean, I'm thinking that probably three-quarters of the gross national product consists of businesses selling, in part at least, pieces of paper that have words on them, and I want to know if, in your opinion, all of that counts as commercial speech.
Mr. Ennis: Not at all.
Justice Scalia: All right.
Justice Breyer: If that isn't, why is my case 1?
Mr. Ennis: Let me first try to say that it is our view, which we briefed, that all of United Reporting's speech is fully protected speech.
United Reporting's speech is not an advertisement saying, buy my journal.
It is selling the information the same way the New York Times or the Los Angeles Times sells the information.
Justice Breyer: That's why I'm talking about my case 1.
It is a facial challenge, as I said.
I thought it was aimed at case 1, and that's what I'm trying to...
Mr. Ennis: Here's why... Here's why Justice Breyer, because there are two parts to this statute, and even... as they say in their brief, petitioner says in its brief expressly, even if United Reporting gets access to address information for a legitimate journalistic purpose, assuming that the Jail Mail Register is a legitimate journal, it cannot then sell that information to its subscribers because it knows that its subscribers will use that information to try and sell a product or service, namely their service as attorneys, bail bondsmen, and the statute prohibits not only the direct use but the indirect use.
The statute says, even once the information has been lawfully disclosed, that information cannot be used, quote, directly or indirectly to sell a product or service.
Justice Kennedy: Does that mean that this is a speech case...
Mr. Ennis: Absolutely.
Justice Kennedy: other than an access case?
Mr. Ennis: Absolutely.
Justice Kennedy: Well...
Chief Justice Rehnquist: It's...
Under your view the telephone book would be commercial speech, I would think.
Mr. Ennis: No.
No, I wouldn't think that, because it's not an advertisement.
It's containing information, the same way in Dun & Bradstreet this Court held that financial credit newsletters are fully protected speech, the same way in SEC v. Lowe this Court held that investment newsletters and stock quote letters are fully protected speech.
Justice Kennedy: What case...
Mr. Ennis: Ours is, too.
Justice Kennedy: What case would you cite for the proposition that once the information is within a wide domain there can be no restrictions on its use?
What case would you cite?
Mr. Ennis: Well, I think there are many cases that support that.
Justice Kennedy: It sounds sensible enough, but I can't think of a case.
Mr. Ennis: It's traceable to the discrimination principle which applies across the board, and the second case I wanted to mention in that regard that I think is instructive is the Seattle Times v. Rhinehart case.
That case involved a court-ordered discovery order which granted access to information to which the party otherwise would not have access, but at the same time said, we are going to grant you this access only if you use it for purposes of this litigation, and not for general speech.
This Court applied intermediate scrutiny to review that access use scheme.
I can see no distinction between that case and this on that point.
Chief Justice Rehnquist: Except one was a judicial proceeding, and this isn't.
Mr. Ennis: But it's Government action, Chief Justice Rehnquist, making available information that is not generally available.
In fact, it follows a fortiori...
Justice Stevens: That case held that the restriction was perfectly okay.
Mr. Ennis: Yes.
Justice Stevens: But have you got one that says the restriction is not okay?
Mr. Ennis: The first question, Justice Stevens, is whether this case gets any First Amendment review, and those cases stand for the proposition, Discovery and Seattle Times, yes, it gets First Amendment review.
The second question is on the merits, and there, in Seattle Times the Court emphasized that it survived intermediate scrutiny because the Government had a legitimate Government purpose in limiting use that was unrelated to the suppression of expression.
It was for use in facilitating litigation proceedings, and here...
Justice Ginsburg: Why isn't that so here, when the purpose put forward is, we want to shelter these people not simply from the bombardment, but from the real risk that these records are going to be used to deny them employment?
The State is not just saying, we don't like solicitors.
It's saying that we want to protect this class of people who are vulnerable.
Now, why isn't that a satisfactory reason?
Mr. Ennis: Justice Ginsburg, let me answer that question by beginning to say first, the Government doesn't claim here that address information is a scarce resource, so this is not like the subsidy cases.
It doesn't claim that it needs to limit this information in order to...
Justice Stevens: Well, it is a scarce resource, because the lawyers who are chasing clients can't get them without the address information.
Mr. Ennis: Not in this sense, Justice Stevens.
In a subsidy context, the Government cannot give the same dollar bill to every speaker who wants it, but it can give the same address information to every speaker who wants it.
There's no scarcity problem here.
Justice Breyer: Is the Freedom of Information Act also subject to First Amendment review if not constitutionally required, in your opinion?
Mr. Ennis: I think any act is subject to constitutional...
Justice Breyer: No, no, no, I mean it seriously.
That is to say, on your opinion... in your view of what the Government has to do whenever it gives out information, and I'm not sure of the answer.
would we now have to start...
Mr. Ennis: No.
Justice Breyer: applying First Amendment standards...
Mr. Ennis: No.
Justice Breyer: to all the exceptions in the Freedom of Information Act?
Mr. Ennis: No.
Justice Breyer: Why not?
Mr. Ennis: Justice Breyer, here's why.
In every single one of the Federal statutes cited in petitioner's and the United States briefs, those statutes were all justified by nonspeculative harm, and all of them materially advanced a governmental interest that was unrelated to suppression of expression, for example, a subsidy type of interest.
That's not this case.
Justice Scalia: I'm not sure... are there exceptions to the Freedom of Information Act insofar as who can get the information is concerned?
I think there may have been...
Mr. Ennis: No.
In fact... in fact, under the...
Justice Scalia: one recently enacted involving foreign espionage services, or something.
Mr. Ennis: I'm not...
Justice Scalia: That's the only exception I know of.
Mr. Ennis: Justice Scalia, I'm not an expert on the Freedom of Information Act, but it's my understanding that under that act, everyone has access to...
Chief Justice Rehnquist: It's mine, too.
Mr. Ennis: exactly the same information.
Justice Scalia: There are exceptions as to what information must be given out.
Mr. Ennis: Right, but there's no discrimination among...
Justice Breyer: It's filled with exceptions, in fact...
Mr. Ennis: Yes.
Justice Breyer: so I suppose you might try to distinguish among them, but do... I don't know if you want to pursue this further.
Mr. Ennis: I think it would take more time than is warranted, Justice Breyer.
Justice Kennedy: Justice Ginsburg raised a question that's I think important, with her example of limited access to prison.
Suppose the police department said, the only people that can get access to this information are law professors, professors involved in the criminal justice system, clinical psychologists, and sociologists for scholarly purposes, and then your people wanted the information, what result there?
Mr. Ennis: Well, the answer is, first, I think that would require at least intermediate First Amendment review.
The second question is whether it would satisfy intermediate review or not, and the answer is, it's far more likely to satisfy intermediate review than this case, because there's... here the sole justification... look at page 11 of the petitioner's brief.
They justify this statute on the ground that it will, quote, reduce commercial solicitation of arrestees.
The justification they advance for this scheme is, it will reduce commercial speech.
Justice Souter: Well, that was true in Went For It, wasn't it?
Mr. Ennis: Vastly different...
Justice Kennedy: What's the difference?
Mr. Ennis: Justice Souter, because in Went For It this Court's opinion I think makes quite clear, as it surely makes clear in Shapero and Edenfield, that a naked desire to suppress commercial solicitation is not even a substantial and legitimate governmental interest.
There has to be more.
In Went For It, the more was, there was a particularly vulnerable population, and it was a time-limited ban on solicitation.
Chief Justice Rehnquist: But it was nonetheless a suppression of speech.
Mr. Ennis: I didn't hear you, Chief Justice.
Chief Justice Rehnquist: In Went For It, it was a suppression of speech.
You say it was limited, and of course that was one of the justifications, but it was a suppression of speech.
Mr. Ennis: Yes, it was, Chief Justice Rehnquist, and for a limited period of time, and because of an interest that was unrelated to the suppression of speech.
Justice Breyer: Well, but...
Justice Stevens: Because...
It was protecting the interests... it was protecting the persons who would otherwise receive the speech.
The same thing here.
You've got the arrestees, they don't want to have the lawyers soliciting them.
Mr. Ennis: First of all, Justice Stevens, there's no basis to believe that's so.
The record in this case is clear.
It was an undisputed fact that arrestees find these solicitations from lawyers who are trying to defend them against the State who has arrested them helpful.
There were declarations...
Chief Justice Rehnquist: Well, I don't...
Since when do we have a trial of the facts on the constitutionality of a State statute?
I mean, you say the State can't advance a reason if you could show in court that there's... something else is the fact?
Mr. Ennis: But Chief Justice Rehnquist, it has always been the law in all of this Court's commercial speech cases even, that the State bears the burden of proving that the harm is more than speculative, and that the law will materially achieve the State's objectives.
Here, the State did not prove either.
It did not... for the 13 years before this amendment to the statute was passed, everyone could get this information and could freely solicit arrestees.
There was no evidence...
Justice Ginsburg: Because California chose to do that.
Mr. Ennis: Well, it's their burden to do that, though, Justice Ginsburg, under all these court cases.
Justice Ginsburg: Only if you say access must be available to everybody.
If you took that part of your case, the rest would be easy.
If you don't take that part of the case, that is, everybody is entitled to access, then it becomes a much harder case.
Mr. Ennis: We're not saying, Justice Ginsburg, that everybody is entitled to access.
What we're saying is, once the State opens up this information for broad access, for many governmentally approved purposes, then the State can only deny access for a reason that is unrelated to the suppression of expression.
If the Government has some legitimate Government-functioning interest to justify the discrimination, that would survive.
Justice O'Connor: Well, what about the protection of crime victims?
It also deals with addresses of victims of crimes, as I understand.
Mr. Ennis: Justice O'Connor, we did not challenge this law insofar as it deals with addresses of victims of crimes.
We don't publish that information, never have, and it's undisputed we never would.
Justice O'Connor: Do you concede that the statute is valid as to the limitation on addresses of crime victims?
Mr. Ennis: No, because I frankly haven't thought about it enough.
We didn't challenge the statute with respect to victim addresses.
Justice Scalia: Can the newspapers get that, the addresses of crime victims?
Mr. Ennis: Yes, the newspapers can get that, but if...
Chief Justice Rehnquist: What about...
Justice Scalia: Then I would think you would challenge it.
Mr. Ennis: But your question, Justice O'Connor, raises a very important point, because the statute, this statutory section itself has an opt-out provision which says that victims can preclude disclosure of their names, which would otherwise be required, at their request.
Under the Central Hudson test, prong 4, that's fatal here, because the same opt-out provision would fully achieve the Government's interest...
Justice Breyer: Well, that's only...
Mr. Ennis: in protecting privacy of arrestees who don't want to be solicited.
Chief Justice Rehnquist: That's only if we were to conclude that this is a regulation of speech, rather than a denial of access.
Mr. Ennis: That's correct, Chief Justice Rehnquist.
Justice Breyer: Well, if... suppose I assume everything in your favor so far, which I'm not saying I am, but I mean, suppose I did.
Let's get to the question of the State's reasons.
What's wrong with them saying, you know, there's issue of privacy.
That's why we don't want people to have this information?
Now, we see some important countervailing interest, a First Amendment interest for the free press, we see... and we think those are very important interests, studies, governmental interests, crime control.
But obviously, we want no one to have it for reasons of privacy, and without those very important exceptions we're going to keep it.
Justice Scalia: Now, what's wrong with that?
Mr. Ennis: Justice Breyer, as I understand it, you've asked two questions.
Let me try to answer them in order.
First, on the privacy question, as Shapero held, quote, the privacy invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with discovery through targeted direct mail solicitation.
That's not a privacy invasion, to get a letter in the mail.
As Bolger and Con Ed and every case said, that's so simple, just throw the letter in the waste basket, that's not considered to be a privacy...
Justice Breyer: I would think if somebody was going to send my name and address around to 40 million people, my privacy was far more invaded than if three just happened to find out about it.
Mr. Ennis: Your Honor, I think that that cuts our way, because under this statute the crucial fact that a named individual has been arrested and charged with a specific crime is disclosed to everyone, and can be publicly disclosed to everyone.
Justice Scalia: Yes, but in practical terms it's not.
Chief Justice Rehnquist: The address...
Mr. Ennis: In practical terms it is, Justice Souter.
If you'll look at the record, supplemental excerpts of record, pages 496 through 547 are examples from the Sacramento Bee, which on a regular basis, I think several times a week, prints what's called the Police/ Fire Log, which lists the names and addresses and charges of everyone.
Chief Justice Rehnquist: Okay, there's...
But the addresses, it's not just a question of getting mail, it's a question of people staking out your house, and finding out where you live.
Mr. Ennis: You can get that.
Anybody can find that information from the Sacramento Bee.
Justice Souter: No, but they don't find that from newspapers in the State generally.
It may be that every... if every State went to the practice that obtains in Sacramento, you would have a much stronger argument, because nothing would be advanced by this prohibition.
But in the world that it exists now, at least outside of Sacramento, it seems to me it's hard to argue that it does not have a substantial advancement of the stated interest.
Mr. Ennis: First, it's not just Sacramento.
That's the excerpts in the record, but there are also declarations about Oceanside, California and other places.
But this cuts our way, because think about it, if you're an arrestee, and some newspaper publishes, any newspaper publishes this information to the world at large, you've got to worry about that problem.
Contrast that with getting a private, confidential letter in the mail from an attorney or bail bondsman.
Justice Souter: But the State's argument... and I mean, you're right if you accept the premise, but the... I think the State's assumption is that you don't get a letter, you get a whole slew of letters.
You get letters from lawyers, you get them from social workers, from alcohol and drug abuse counselors and so on, and it kind of drives you crazy, and it seems to me that we speak of privacy, but we're really sort of speaking of annoyance and harassment...
Mr. Ennis: Your Honor...
Justice Scalia: and is that not in the Government interest?
Mr. Ennis: We all get, every day, junk mail that drives us crazy, and junk telephone calls.
There are opt-out remedies for that.
Justice Stevens: You don't think there's a public interest in reducing the volume of that stuff?
Unidentified Justice: [Laughter]
Justice Stevens: You don't think there's a public interest in reducing the volume of that stuff?
Mr. Ennis: It depends on the way it's pursued.
The FE... the Federal Government has adopted regulations for telemarketing which have an opt-out provision.
If you don't like getting that stuff, you can opt out.
Justice Ginsburg: What about opt in?
I mean, I was struck in the brief that says, well, if the arrestee is really worried about improper use of this, say in future employment, at the moment of arrest he can check off the box, but it seems to me if you're really interested in recognizing that interest, you would say, opt in.
If you want to get this kind of stuff from the lawyers and everything, opt in, but unless you affirmatively opt in, we are going to spare you the invasion of privacy, the potential for misuse of this information to curtail your opportunities.
Mr. Ennis: Well, Justice Ginsburg, here, the statute doesn't do either.
It doesn't have an opt out, or it doesn't have an opt in.
Either one would be better than...
Justice Ginsburg: Yes, but do you think an opt in would be okay?
Mr. Ennis: Two terms ago when this Court decided a cable indecency case it found that an opt-in provision unduly burdened First Amendment rights, whereas an opt-out provision would not, so an opt-in provision is more constitutionally suspect, but even that would be far better than what this scheme is.
Justice Breyer: How do we know we're talk... I mean, I'm a little worried about the fact that these are people arrested for crimes.
I don't know that we're talking about junk mail at all, and I don't know that in a serious case that's the concern, and it might well be that in cases that are quite serious, and addresses are very important for reasons other than junk mail, the newspapers would act in a manner that the police department would consider,but commercial enterprises might continue.
Now, that seems a possible analysis.
Mr. Ennis: Let me get back to...
Justice Scalia: Yes.
Mr. Ennis: answering your prior question, if I could, first, Justice Breyer, the, basically what I described as the compensating benefits view that, well, there are benefits to letting the public learn about addressee information.
I think this Court has already rejected that compensating benefits analysis in both Greater New Orleans Broadcasting, and in Discovery itself, where the same argument was made.
It's a greater benefit to have fully protected speech than commercial speech.
In Greater New Orleans Broadcasting, the Government allowed advertising by Government casinos and Indian casinos on the ground that that would further the compensating benefit of governmental autonomy and revenue generation for those governmental units, but this Court pointed out that that did not mean that the statute did not undermine the justification for its purpose, which was decreasing advertising about gambling.
Justice Ginsburg: But Mr. Ennis, that was...
Mr. Ennis: The same is true here.
Every single time there's an increase in public understanding about addressee addresses, there's a corresponding decrease in addressee privacy, which is the ostensible justification.
Justice Ginsburg: You cite cases where I have the information and the Government's saying, you can't publish it.
This is quite different, where I say, I don't have the information.
First, the Government has to give it to me, and then I will speak with it.
So I don't see that those cases are on four, or all four, where the Government is prohibiting you from publishing what you have, where you say, first, Government, give it to me, and then after you give it to me, I'll publish it.
Mr. Ennis: Justice Ginsburg, that's exactly what was at issue in Seattle Times v. Rhinehart, which is why I raised that case.
In Seattle Times, the media did not have the information.
They tried to get it.
The Government said, we will compel the opposing party to give you the information, but only if you use it only for purposes of litigation and not for general publication.
They... without that condition, they wouldn't have gotten the information, the same as our case, and this Court did apply intermediate scrutiny there.
Chief Justice Rehnquist: But the Court also said that there's no right of access, and it cited Zemel.
Mr. Ennis: Chief Justice Rehnquist, we do not have to establish a raw right of access in order to prevail in this case.
Our case hinges on the discrimination among speakers when access is granted for governmentally approved purposes, including speech purposes, journalism, and is denied when access is withheld for governmentally disapproved speech purposes.
Justice Scalia: Mr. Ennis, can I... will you tell me what you understand by journalism?
In your response to Justice Breyer's question, you accepted his assumption that journalistic use would be presumably responsible, I guess the notion that it would be the New York Times, or some prominent newspaper.
Mr. Ennis: I don't think this Court has ever held that it's only journalism that is responsible.
Justice Scalia: I assume journalistic purposes under this statute could be somebody who has a Xerox machine in his basement.
Mr. Ennis: Yes, I think that's right, or a Web site.
Justice Scalia: And just wants to inform the public, and if he wants to spread this around the block...
Mr. Ennis: Correct.
Chief Justice Rehnquist: around his neighborhood...
Mr. Ennis: That would be journalism.
Justice Kennedy: That would be journalism.
Mr. Ennis: Or just tell the next-door neighbor in a leaflet.
I have very little time.
I'd like to make two brief points.
The first is, a late concern has been raised about computerized data banks.
The Ninth Circuit found that was completely speculative, no evidence there were such data banks in the 13 years when this law allowed access.
But more important is, this statute allows everybody to get the name, occupation, and date of birth, and the date of birth is a far better identifier than the current address for data bank purposes.
Second, Justice Souter asked about the intrinsic value of this speech.
I think that it has intrinsic value, because it identifies the precise person named John Jones who has been arrested and charged with a particular crime.
The fact that it's not just instrumental is made clear by the fact that newspapers publish the address information.
Justice Souter: Sure, but isn't the instrumental/ intrinsic value distinction one which ultimately dissolves?
Mr. Ennis: I think it does.
Chief Justice Rehnquist: Yes.
Mr. Ennis: I mentioned that the scheme plainly fails the fourth prong of the Central Hudson test because there is an opt-out alternative.
The petitioner and the United States don't even discuss that.
They don't say, why would it not be sufficient to allow arrestees to opt out, as the same statute allows victims to opt out.
They don't discuss it because there's no answer to it.
I finally want to say that they've also raised at the last minute a discrimination argument.
That argument does not stop discrimination by employers if they get the address information from newspapers or private investigators.
Furthermore, the name and date of birth would be sufficient for most employers, who are going to track potential employees by name, to discriminate against them.
Third, it's an entirely speculative justification, no evidence in the record to support it and, finally, the Government could directly prohibit the use of this information by anyone to discriminate in employment, and that would not be a speech restriction.
Chief Justice Rehnquist: Thank you, Mr. Ennis.
The case is submitted.
The honorable court is now adjourned until Monday next at ten o'clock.
Argument of Chief Justice Rehnquist
Mr. Rehnquist: I have the opinion of the Court to announce in No. 98-678, Los Angeles Police Department versus United Reporting Publishing.
The respondent, United Reporting Publishing Corporation, provides the names and addresses of recently arrested individuals to its customers.
Its customers include attorneys, insurances companies, drug and alcohol counselors and driving schools.
United Reporting obtained the address information from the petitioner, the Los Angeles Police Department under a California statute.
The California legislature amended the statute to require that a person requesting addresses declare under penalty of perjury that the request is made for a scholarly, journalistic, political, governmental, or investigative purpose and that the address will not be used directly or indirectly to sell a product or service.
When that amendment became effective in 1996, the Police Department denied United Reporting’s request for addresses because United Reporting did not make the declarations required under the statute.
United Reporting then filed suit seeking declaratory and injunctive relief on the ground that the amended statute was unconstitutional under the First and Fourteenth Amendments.
The District Court ruled the Amendment statute was invalid because it violated the First Amendment on its face and therefore enjoin the operation of the statute.
The Court of Appeals affirmed.
It concluded that United Reporting, in selling the addresses to its clients, engaged in constitutionally protected commercial speech and that the amended statute unduly burden that speech in violation of the First Amendment.
In an opinion filed with the Clerk today, we reverse.
We hold that United Reporting was not entitled to prevail on a facial attack on the California statute.
For purposes of analyzing the facial invalidation, the Los Angeles Police Department was correct in arguing here that the statute is simply a law regulating access to information in the government’s hands.
This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possess.
California could decide if it wish not to give out arrestee information at all without violating the First Amendment.
To the extent that United Reporting’s facial challenge of the statute seeks to rely on the statute affects on parties not before the court, like United Reporting’s clients, the claim does not fall within the case law allowing courts to entertain facial challenges.
No threat of prosecution, cut-off of funds, hangs over their heads and there is no possibility that protected speech will be muted.
Thus, the Court of Appeals was wrong to strike down the statute on its face.
Justice Scalia has filed a concurring opinion which Justice Thomas joins; Justice Ginsburg has filed a concurring opinion which Justices O’Connor, Souter, and Breyer, join; Justice Stevens has filed a dissenting opinion in which Justice Kennedy joins.