Privacy v. Commercial Speech

From Privacy Times, December 8, 1999

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 court said.

"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)