High court to decide if governments can selectively release public records

Tuesday, January 26, 1999

When governments release public records, can they control how that information is used by the public? Thirty-eight states and the federal government have tried to exert that kind of control, and now the Supreme Court has agreed to decide how it squares with the First Amendment.

The court agreed yesterday to consider the case of Los Angeles Police Department v. United Reporting Publishing Corp., which involves a California law banning the commercial use of routine police records. The court will hear the case in the fall, with a decision unlikely before 2000.

The California case is framed before the court as a commercial-speech dispute, the second commercial-speech case the court has added to its docket this month. Last week, the court agreed to hear a challenge to the federal law banning the broadcast advertising of private casinos.

The California law was passed in 1996 in response to the growing commercial use of police information. It allowed the release of arrestees’ addresses for “scholarly, journalistic, political or governmental purpose,” or to licensed private investigators. But anyone receiving the information would have to declare, under penalty of perjury, that it would not be used “directly or indirectly to sell a product or service.”

United Reporting Publishing had built a business around selling the names and addresses
of recent arrestees to a wide range of clients, including lawyers, insurance companies, drug and alcohol counselors and driving schools. When the law took effect on July 1, 1996, the company was denied access to police records statewide. As the company states in its brief, it promptly sued, “faced with the reality of being put out of business based on the exercise of its constitutional rights.”

Both a federal district court and the 9th U.S. Circuit Court of Appeals sided with the company. The district found the law to be a “content-based” restriction on commercial speech that did not meet the Supreme Court’s test for commercial-speech restrictions, because it did not materially advance the government’s interests.

The California Attorney General did not appeal the decision but the Los Angeles Police Department did, arguing that the law protected arrestee privacy.

But the 9th Circuit struck down the law, again finding that the law did not materially advance the government’s stated interest.

Noting that the news media are given the same information commercial users are barred from obtaining, the court said, “Having one’s name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance abuse counselor or driving school.”

The ruling set the stage for an appeal to the Supreme Court by the LAPD. In its brief, the department notes that 18 similar police records statutes exist in 13 states, and 11 have been challenged on First Amendment grounds.

Contrary to the 9th Circuit, the 10th U.S. Circuit Court of Appeals upheld a Colorado law, and the supreme courts of Louisiana and South Carolina also have upheld similar laws. But other federal courts have struck down similar laws in Texas, Georgia, Florida, Kentucky and New Mexico.

That is just the sort of lower-court conflict that attracts the attention of the Supreme Court. The conflicting rulings also threaten a range of other laws — including a federal law that bars the commercial use of campaign-contribution records gathered by the Federal Elections Commission.

The police department brief called the California law a “reasoned effort” to balance privacy and First Amendment interests. It notes that California could enact a law prohibiting access to address records for everyone, and the state might do just that if the high court strikes down the commercial-use restriction. A wide range of government groups — including the Clinton administration — is expected to join the case on the side of the LAPD.

Media and commercial-speech groups are expected to argue the other side of the case, asserting that the California law amounts to selective censorship.

“This court has long prohibited governments from adopting statutes that allow them to monitor and control information flowing into private mailboxes,” the brief for United Reporting asserts. If the law is upheld, the company says, “governments would be allowed to disapprove uses of public information, selectively withhold records from disfavored or weak groups whose speech they dislike, and censor the flow of information to citizens.”

Predicting the outcome of the case is difficult. While the court has not found a First Amendment right of access to all government information, it has frowned on laws that single out a particular speaker for extra restrictions.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.