Supreme Court hears pros, cons of limiting access to police blotter data

Thursday, October 14, 1999

Every day, The Sacramento Bee legally prints the names and addresses of people arrested on suspicion of committing crimes in the community.

But if a commercial enterprise in California obtained the same information from local police and sold it to lawyers, bail bond companies, drug abuse counselors or social workers, it would be committing a crime under state law.

These seeming contradictions were aired before the Supreme Court yesterday as the justices took up an important First Amendment commercial-speech case, Los Angeles Police Department v. United Reporting Publishing Corp.

At the end of the hour, the outcome of the case was difficult to predict, but several justices indicated they were troubled by the idea of selling police blotter information for commercial use.

At issue in the case is a California law, passed by a privacy-minded state Legislature in 1996, that freely allows the public release of the addresses of crime suspects for a “scholarly, journalistic, political or governmental purpose” or for private investigators. But requesters of the information must certify they will not use the information “directly or indirectly to sell a product or service.”

The law was challenged by United Reporting Publishing, which gathers and sells police information to a range of businesses, as a violation of its commercial free-speech rights. The 9th U.S. Circuit Court of Appeals struck the law down.

Debate before the court centered on whether the distinction between commercial and journalistic use of the information made sense, and whether police officials could, if they wanted to, shut off access to the information to everyone — journalists and businesspeople alike.

Several justices asked whether a business couldn’t issue a sham newsletter along with the information for sale, in order to fit within the category of journalists allowed to receive police blotter information. Justice Anthony Kennedy even asked whether a conventional newspaper publisher could get in trouble with the law if he or she knew that the police information in the newspaper was being used “indirectly” for a commercial purpose.

Tom Goldstein, arguing for the Los Angeles police, said those issues were “never tested” in courts below because the law was challenged before it took effect. He suggested that legitimate journalists would be safe, but a trumped-up newsletter would not be serving a “journalistic purpose” and would violate the law. In reply, Justice Antonin Scalia argued that it would be hard to distinguish between a trade publication and the hypothetical newsletter. “Trade publications are journalism,” Scalia said. “I don’t see any difference.”

If the justices find it hard to distinguish between journalistic and commercial uses of the data, that could work in favor of the First Amendment position that the information should be available to all. Goldstein tried to shift focus from that line of inquiry, arguing it was a question of “statutory construction” that could be resolved later by lower courts.

Instead, Goldstein sought to frame the dispute as an “access case,” rather than an instance of infringement on commercial-speech rights. If he convinces the court that only routine questions of access are involved — allowing access to some but not others — that would make the California statute similar to 80 laws nationwide that deny access to information for commercial use. The court traditionally gives less strict scrutiny to laws that restrict access to government information than it gives to laws that restrict actual expression. The two kinds of restrictions are clearly connected, but the court views them through a different lens.

Goldstein said the limit on access to the data by commercial users served a legitimate government purpose of protecting against “massive wholesale invasions of privacy.” Several justices seemed sympathetic. Justice David Souter said selling addresses of crime suspects would subject them to a “slew of letters” from drivers’ schools, social workers and lawyers. Chief Justice William Rehnquist said, “It’s not just a question of getting mail; they stake out your home.” Justice Ruth Bader Ginsburg indicated governments might be justified in protecting “this class of people who are vulnerable.”

Bruce Ennis, arguing for United Reporting, tried to focus the court on the restrictions on speech involved in the law. He said both the journalistic and commercial uses of the police data are “protected speech” under the First Amendment. He also sought to minimize the privacy concerns expressed by the court. “It’s not a privacy invasion to get a letter in the mail.”

Ennis struggled when justices repeatedly pressed him on whether government could end access to the police information for everyone. The court has never embraced a constitutional right of access to government information, so Ennis would have gotten in trouble if he stated unequivocally that government had to give the data to journalists or to anyone else, for that matter.

“That’s a very difficult question,” he said. Rather than answering the question directly of whether the public is entitled to police blotter information, Ennis said that once the government “opens the doors” and gives access to some segment of the public, it may not selectively shut someone out. “A total denial of access would be highly constitutionally suspect,” Ennis said.

But Ennis added later, “We do not have to establish a raw right of access to win this case.”

A decision in the case could come anytime before the court’s term ends next summer.

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