California law limiting release of information on arrested persons declared unconstitutional

Monday, June 29, 1998

A California law prohibiting release of arrestee addresses if the information will be used for commercial purposes violates the First Amendment, according to the U.S. Court of Appeals for the 9th Circuit.

At one time, California law required state and local law enforcement agencies to make public the current addresses of those arrested for a crime and victimized by a crime.

However, the law was amended in 1996 to provide that law enforcement agencies be required to make such information public only if the individual seeking the information “declares under penalty of perjury that the request is made for a scholarly, journalistic, political or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator.”

The amended law prohibited the release of address information to use “directly or indirectly to sell a product or service to any individual or group of individuals.”

The privately-owned United Reporting Publishing Company sued in federal court, contending the law violated its First Amendment rights. United Reporting sells the addresses of those arrested for crimes to attorneys, insurance companies, drug and alcohol counselors, religious counselors and driving schools.

In 1996, a federal district court ruled that the law violated the company's free-speech rights. The Los Angeles Police Department (LAPD) appealed, arguing that the law was necessary to protect the privacy rights of arrestees who would be bombarded with solicitations from attorneys and others offering their services.

The 9th Circuit in United Reporting Publishing Corp. v. California Highway Patrol acknowledged that the government had a substantial interest in protecting the privacy of arrestees. However, the appeals court determined that the law violated commercial free-speech rights because it failed to directly and materially advance the government's interest in protecting privacy.

According to the court, the “myriad of exceptions” undermined the law's purpose.

The court wrote: “It is not rational for a statute which purports to advance the governmental interest in protecting the privacy of arrestees to allow the names and addresses of the same to be published in any newspaper, article, or magazine in the country so long as the information is not used for commercial purposes. Having one's name, crime and address printed in the local paper is a far greater affront to privacy that receiving a letter from an attorney, substance abuse counselor or driving school eager to help one overcome his present difficulties.”

Guylyn Cummins, attorney for United Reporting, said: “One of the most egregious things the government did in this case is to pick and choose what categories of information can be made available to people and what are the suitable purposes for that information. Fortunately, the court agreed with us that the government does not have this paternalistic censorship power.”

Commercial speech expert Richard Kaplar also applauded the decision. He said: “This decision is clearly a victory for commercial speech. The court
reaffirmed 44 Liquormart's [a 1996 Supreme Court decision] mandate that the burden of proof must remain on regulators who would restrict speech.

“The Ninth Circuit wisely questioned whether the distinction between
commercial and non-commercial speech is valid at all. In the long run, this
type of thinking may lead to the full protection that commercial speech