Supreme Court backs limits on police blotter data

Tuesday, December 7, 1999

The Supreme Court today upheld a California law that forbids the release of police blotter information to companies that use the data for commercial purposes. Freedom-of-information advocates say they worry the court’s decision might prompt other governments to shut down access to traditionally public records.

By a 7-2 vote, the court rejected First Amendment commercial-speech arguments and said California was not violating freedom of speech when it passed the law in 1996.

Under the law, anyone seeking names and addresses of arrestees and crime victims must certify that they will use it for journalistic, scholarly or governmental purposes, and not for the sale of a product or service. The law was ostensibly aimed at protecting the privacy of crime victims.

United Reporting Publishing Corp., which marketed the information to attorneys, insurance companies and drug-abuse counselors, among others, challenged the law as a violation of its First Amendment rights. A federal appeals court agreed and struck down the law.

The high court has been increasingly sympathetic to commercial-speech interests in recent years, but the justices did not see it in those terms today.

“This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses,” Chief Justice William Rehnquist wrote for the court in Los Angeles Police Department v. United Reporting Publishing Corp. (98-678).

“What we have before us is nothing more than a governmental denial of access to information in its possession.” He added that California could decide not to give out arrestee information at all without violating the First Amendment.

The assertion that California could ban all access to traditionally public police information, while not a new position, alarmed freedom-of-information advocates. “I hate to see that notion reinforced,” said Rebecca Daugherty of the Reporters Committee for Freedom of the Press.

Several other justices reflected that sentiment and voiced concern. In a concurring opinion, Justice Ruth Bader Ginsburg said, “Society’s interest in the free flow of information might argue for upholding laws like the one at issue in this case rather than imposing an all-or-nothing regime under which ‘nothing’ could be a state’s easiest response.” Justices Sandra Day O’Connor, David Souter, and Stephen Breyer, joined Ginsburg.

In dissent, Justice John Paul Stevens, joined by Justice Anthony Kennedy, said the fact that California could ban all access to police blotter information did not entitle it to discriminate against a “small disfavored class” while giving the information to others. The law, Stevens said, “relies on discrimination against disfavored speech,” which violates the First Amendment, in his view.

The court sent the case back to lower courts for further review of the facts and evidence concerning the issues in the lawsuit. The original suit was a “facial challenge” to the law, not based on how the law was applied. And the United Reporting company could still argue before lower courts that it has a journalistic purpose in asking for the blotter records.

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