v. Commercial Speech
From Privacy Times, December 8,
SUPREME COURT AFFIRMS 'PURPOSE
TEST' FOR SAFEGUARDING ADDRESS LISTS
In a major blow to those who believe
that "commercial free speech" trumps privacy, the Supreme Court
has upheld a California law that barred the release of arrestees'
home addresses for commercial purposes. The law permits disclosure
journalists, scholars, private investigators and crime victims.
Reversing two lower courts, the
Supreme Court ruled 7-2 that the law was not an "abridgement of
anyone's right to speech, commercial or otherwise."
The challenge, brought before the
law took effect by a San Diego company that sells arrest records
to lawyers, insurance agents, alcohol abuse counselors and others,
was not grounded in an actual denial of Constitutional rights, the
"The California statute merely requires
that if respondent wishes to obtain the addresses of arrestees,
it must qualify under the statute to do so. Respondent did not attempt
to qualify and was therefore denied access to the addresses. What
we have before us is nothing more than a governmental denial of
access to information in its possession. California could decide
not to give out arrestee information at all without violating the
First Amendment," wrote Chief Justice William Rehnquist. The thrust
of his opinion was supported in a concurring opinion authored by
Justice Ruth Bader Ginsburg. Justices John Paul Steven and Anthony
Kennedy dissented, arguing that the California law selective approach
failed to protect privacy and unconstitutionally burdened commercial
speech. The U.S. Court of Appeals for the Ninth Circuit voided the
law for those reasons.
A concurrence by Justice Antonin
Scalia, who was joined by Justice Clarence Thomas, indicated that
the vote in favor of "privacy" over "commercial speech" may be 5-4.
Justice Scalia said it was one thing to restrict access to government
information. "But it is an entirely different question whether a
restriction upon access which allows access to the press (which
in effect makes the information part of the public domain), but
at the same time denies access to persons who wish to use the information
for certain speech purposes, is in reality a restriction upon speech
rather than on access to government information. That question .
. . is not addressed in the court's opinion."
United Publishing may ultimately
qualify for the data, or at least some of it. The firm publishes
a newsletter containing arrest information, which presumably would
qualify as a journalistic purpose.
Ron Plesser, a Piper & Marbury attorney
in Washington who filed an amicus brief supporting the Ninth Circuit
on behalf of the Individual References Services Group (IRSG), said
the decision raises more questions than it answers. For instance,
how do you define a "journalist" in the electronic age? He applauded
Justice Ginsburg's concurrence that once an address is in the public
domain, it is forever public. The opinion may provide the information
with a roadmap as to how to respond to such statutes in the future,
he said. (Los Angeles Police Dept. v. United Reporting Publishing:
Supreme Ct. -- No. 98-678; Dec. 7)