146 F.3d 1133 (9th Cir. 1998), 97-55111, United Reporting Pub. Corp. v. California Highway Patrol

Docket Nº:97-55111.
Citation:146 F.3d 1133
Party Name:98 Daily Journal D.A.R. 7073 UNITED REPORTING PUBLISHING CORP., a California corporation, Plaintiff-Appellee, v. CALIFORNIA HIGHWAY PATROL, Defendant, and Los Angeles Police Department, Defendant-Appellant.
Case Date:June 25, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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146 F.3d 1133 (9th Cir. 1998)

98 Daily Journal D.A.R. 7073

UNITED REPORTING PUBLISHING CORP., a California corporation,

Plaintiff-Appellee,

v.

CALIFORNIA HIGHWAY PATROL, Defendant,

and

Los Angeles Police Department, Defendant-Appellant.

No. 97-55111.

United States Court of Appeals, Ninth Circuit

June 25, 1998

Argued and Submitted April 9, 1998.

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[Copyrighted Material Omitted]

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Byron R. Boeckman, James K. Hahn, Fredrick N. Merkin, City Attorneys, Los Angeles, California, for defendant-appellant Los Angeles Police Department.

Guylyn R. Cummins, Ben P. Jones, Gray, Cary, Ware & Freidenrich, San Diego, California, for plaintiff-appellee United Reporting.

Appeal from the United States District Court for the Southern District of California; Rudi M. Brewster, District Judge, Presiding. D.C. No. CV-96-888-B.

Before: FARRIS, O'SCANNLAIN, and FERNANDEZ, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a state regulation that prohibits the release of arrest information for commercial purposes violates the First Amendment.

I

Prior to July 1, 1996, California Government Code § 6254 provided that "state and local law enforcement agencies shall make public ... [t]he full name, current address, and occupation of every individual arrested by the agency." Cal. Gov.Code § 6254(f). This provision made arrestee addresses available to anyone for any purpose. On July 1, 1996, however, California Government Code § 6254(f) was amended to prohibit the release of arrestee addresses to people who intend to use those addresses for commercial purposes. California Government Code § 6254(f) now provides that state and local law enforcement agencies shall make public:

the current address of every individual arrested by the agency and the current address of the victim of a crime, where the register declares under penalties 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.... Address information obtained pursuant to this paragraph shall not be used directly or indirectly to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury.

Cal. Gov.Code § 6254(f)(3) (emphasis added).

United Reporting Publishing Corporation ("United Reporting") is a private publishing service that had been providing, under the old version of the statute, the names and addresses of recently arrested individuals to its clients. These clients include attorneys, insurance companies, drug and alcohol counselors, religious counselors, and driving schools. The Los Angeles Police Department ("LAPD") maintains certain records relating to arrestees, including names, addresses, and the charges of arrest.

Pursuant to 42 U.S.C. § 1983, United Reporting filed a complaint before the district court seeking declaratory judgment and injunctive relief on the grounds that the amendment to § 6254 was unconstitutional under the First Amendment and the Fourteenth Amendment to the United States Constitution. The district court agreed, holding that California Government Code § 6254(f)(3) violated the First Amendment. See United Reporting Publishing Corp. v. Lungren, 946 F.Supp. 822, 829 (S.D.Cal.1996). The district court did not reach United Reporting's Fourteenth Amendment argument. The LAPD timely appealed. 1

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II

The LAPD contends that the district court erred in holding that § 6254(f)(3) violates the First Amendment right to freedom of expression. Specifically, the LAPD maintains that the district court misapplied the four-part test laid down by the Supreme Court in Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), for analyzing the constitutionality of government regulations limiting so-called "commercial" speech.

For its part, United Reporting argues that, contrary to the district court's finding, the activity in which it engages, selling arrestee information to clients, is not commercial speech at all, but noncommercial speech, the regulation of which is subject to strict scrutiny under the United States and California constitutions. In the alternative, United Reporting claims that § 6254(f)(3) burdens its dissemination of truthful, nonmisleading commercial speech concerning the right to retain competent counsel and other assistance in violation of the United States and California constitutions.

III

We start with a comment on the protection provided under the First Amendment to what has been commonly designated "commercial" speech. Although the Supreme Court once held that the First Amendment did not protect commercial speech, see Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942), it repudiated that position in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 765, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). The current debate centers not on whether commercial speech is a form of expression entitled to constitutional protection, but on the validity of the distinction between commercial and noncommercial speech. See, e.g., 44 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 1518, 134 L.Ed.2d 711 (1996) (Thomas, J., concurring) ("I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech. Indeed, some historical materials suggest to the contrary."); Kozinski & Banner, Who's Afraid of Commercial Speech?, 76 Va. L.Rev. 627, 634-38 (1990) (questioning basis for distinction). We are compelled, however, under the Supreme Court's current jurisprudence, to afford commercial speech less protection from governmental regulation than some other forms of expression. See, e.g., United States v. Edge Broadcasting Co., 509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993) ("Our decisions ... have recognized the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. The Constitution therefore affords a lesser protection to commercial speech than to other constitutionally guaranteed expression.") (citations omitted). Consequently, restrictions that might be violative of the First Amendment in other areas of expression may be tolerated in the realm of commercial speech. See Valley Broadcasting Co. v. United States, 107 F.3d 1328, 1330 (9th Cir.1997).

As an initial matter, we must address United Reporting's claim that it uses arrestee information to engage in fully-protected noncommercial speech, the regulation of which is subject to strict scrutiny under the United States and California constitutions, not commercial speech, and that the district court erred in holding otherwise. United Reporting maintains that commercial speech has been "defined and limited" by the Supreme Court to "speech which does 'no more than propose a commercial transaction.' " Virginia State Bd., 425 U.S. at 762, 96 S.Ct. 1817 (citations omitted). According to United Reporting, speech which goes beyond the mere proposal of such a transaction and involves the passing of ideas and information--including ideas and information necessary to the exercise of the Sixth Amendment right to retain the assistance of counsel--cannot be considered mere commercial speech.

The definition of commercial speech is not as settled as United Reporting would have us believe, however. Although "[t]here is no longer any room to doubt that what has come to be known as 'commercial speech' is entitled to the protection of the First Amendment ... [m]ore subject to doubt ... are the precise bounds of the category of expression

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that may be termed commercial speech...." Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 637, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). United Reporting is correct that speech which "merely proposes a commercial transaction" falls within the boundaries of commercial speech; indeed, this is the "core notion" of commercial speech. Bolger v. Youngs Drug Products, 463 U.S. 60, 66, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983). This "core notion" is the beginning of our inquiry, however, not the end, as United Reporting claims. In Central Hudson, the Supreme Court indicated that it would regard as commercial speech any "expression related solely to the economic interests of the speaker and its audience." 447 U.S. at 561, 100 S.Ct. 2343. This is obviously broader than speech which proposes a commercial transaction; people often discuss their economic interests without proposing commercial transactions. The Supreme Court has abstained from creating bright-line rules in this area and so should we. See Bolger, 463 U.S. at 66-68, 103 S.Ct. 2875 (noting that advertisements are not necessarily commercial speech despite fact that advertiser has an economic motivation and that linking advertisements to important public issues does not necessarily entitle speech to constitutional protection afforded noncommercial speech). Hence, we must examine the disputed communication in light of its surrounding circumstances to determine whether it is entitled to the qualified protection accorded to commercial speech.

That said, United Reporting's speech would be considered commercial under either a broad or a narrow definition. United Reporting makes an effort to link its speech to that of its clients' solicitations to arrestees in an effort to demonstrate that it does more than propose an economic transaction. This effort fails. United Reporting sells arrestee information to clients; nothing more. Its speech can be reduced to, "I [United Reporting] will sell you [client] the X...

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