528 U.S. 32 (1999), 98-678, Los Angeles Police Dept. v. United Reporting Publishing Corp.

Docket Nº:Case No. 98-678.
Citation:528 U.S. 32, 120 S.Ct. 483, 145 L.Ed.2d 451, 68 U.S.L.W. 4005
Party Name:LOS ANGELES POLICE DEPARTMENT v. UNITED REPORTING PUBLISHING CORP.
Case Date:December 07, 1999
Court:United States Supreme Court
 
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528 U.S. 32 (1999)

120 S.Ct. 483, 145 L.Ed.2d 451, 68 U.S.L.W. 4005

LOS ANGELES POLICE DEPARTMENT

v.

UNITED REPORTING PUBLISHING CORP.

Case No. 98-678.

United States Supreme Court

December 7, 1999

Argued October 13, 1999

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Syllabus

Respondent publishing company provides the names and addresses of recently arrested individuals to its customers, who include attorneys, insurance companies, drug and alcohol counselors, and driving schools. It received this information from petitioner and other California state and local law enforcement agencies until the State amended Cal. Govt. Code Ann. § 6254(f)(3) to require that a person requesting an arrestee's address declare that the request is being made for one of five prescribed purposes and that the address will not be used directly or indirectly to sell a product or service. Respondent sought declaratory and injunctive relief to hold the amendment unconstitutional under the First and Fourteenth Amendments. The Federal District Court ultimately granted respondent summary judgment, having construed respondent's claim as presenting a facial challenge to amended § 6254(f). In affirming, the Ninth Circuit concluded that the statute unconstitutionally restricts commercial speech.

Held:

Respondent was not, under this Court's cases, entitled to prevail on a "facial attack" on § 6254(f)(3). The allowance of a First Amendment overbreadth challenge to a statute is an exception to the traditional rule that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U.S. 747, 767. The overbreadth doctrine is strong medicine that should be employed only as a last resort. At least for the purposes of facial invalidation, petitioner is correct that § 6254(f)(3) is not an abridgment of anyone's right to engage in speech, but simply a law regulating access to information in the government's hands. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. California law merely requires respondent to qualify under the statute if it wishes to obtain arrestees' addresses. California could decide not to give out arrestee information at all without violating the First Amendment. Cf. Houchins v. KQED, Inc., 438 U.S. 1, 14. To the extent that respondent's "facial challenge" seeks to rely on the statute's effect on parties not before the court—respondent's potential customers,

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for example—its claim does not fall within the case law allowing courts to entertain facial challenges. No threat of prosecution, see Gooding v. Wilson, 405 U.S. 518, 520-521, or cut off of funds, see National Endowment for Arts v. Finley, 524 U.S. 569, hangs over their heads. The alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit. Pp. 37-41.

146 F.3d 1133, reversed.

Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 41. Ginsburg, J., filed a concurring opinion, in which O'Connor, Souter, and Breyer, JJ., joined, post, p. 42. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined, post, p. 44.

Thomas C. Goldstein argued the cause for petitioner. With him on the briefs were David Boies, James K. Hahn, and Frederick N. Merkin.

Edward C. DuMont argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Leonard Schaitman, and John S. Koppel.

Bruce J. Ennis argued the cause for respondent. On the brief were Guylyn R. Cummins and Marcelle E. Mihaila. [*]

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CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

California Govt. Code Ann. § 6254(f)(3) (West Supp. 1999) places two conditions on public access to arrestees' addresses—that the person requesting an address declare that the request is being made for one of five prescribed purposes, and that the requester also declare that the address will not be used directly or indirectly to sell a product or service.

The District Court permanently enjoined enforcement of the statute, and the Court of Appeals affirmed, holding that the statute was facially invalid because it unduly burdens commercial speech. We hold that the statutory section in question was not subject to a "facial" challenge.

Petitioner, the Los Angeles Police Department, maintains records relating to arrestees. Respondent, United Reporting Publishing Corporation, is a private publishing service that provides the names and addresses of recently arrested individuals to its customers, who include attorneys, insurance companies, drug and alcohol counselors, and driving schools.

Before July 1, 1996, respondent received arrestees' names and addresses under the old version of § 6254, which generally required state and local law enforcement agencies to make public the name, address, and occupation of every individual arrested by the agency. Cal. Govt. Code Ann. § 6254(f) (West 1995). Effective July 1, 1996, the state legislature amended § 6254(f) to limit the public's access to arrestees' and victims' current addresses. The amended statute provides that state and local law enforcement agencies shall make public:

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"[T]he current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty 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 . . . except that the address of the victim of [certain crimes] shall remain confidential. 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. Govt. Code Ann. § 6254(f)(3) (West Supp. 1999).

Sections 6254(f)(1) and (2) require that state and local law enforcement agencies make public, inter alia, the name, occupation, and physical description, including date of birth, of every individual arrested by the agency, as well as the circumstances of the arrest.[1] Thus, amended § 6254(f) limits access only to the arrestees' addresses.

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Before the effective date of the amendment, respondent sought declaratory and injunctive relief pursuant to Rev. Stat. § 1979, 42 U.S.C. § 1983, to hold the amendment unconstitutional under the First and Fourteenth Amendments to the United States Constitution. On the effective date of the statute, petitioner and other law enforcement agencies denied respondent access to the address information because, according to respondent, "[respondent's] employees could not sign section 6254(f)(3) declarations." Brief for Respondent 5. Respondent did not allege, and nothing in the record before this Court indicates, that it ever "declar[ed] under penalty of perjury" that it was requesting information for one of the prescribed purposes and that it would not use the address information to "directly or indirectly . . . sell a product or service," as would have been required by the statute. See § 6254(f)(3).

Respondent then amended its complaint and sought a temporary restraining order. The District Court issued a temporary restraining order, and, a few days later, issued a preliminary injunction. Respondent then filed a motion for summary judgment, which was granted. In granting the motion, the District Court construed respondent's claim as

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presenting a facial challenge to amended § 6254(f). United Reporting Publishing Corp. v. Lungren, 946 F.Supp. 822, 823 (SD Cal. 1996). The court held that the statute was facially invalid under the First Amendment.

The Court of Appeals affirmed the District Court's facial invalidation. United Reporting Publishing Corp. v. California Highway Patrol, 146 F.3d 1133 (CA9 1998). The court concluded that the statute restricted commercial speech, and, as such, was entitled to " 'a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.' " Ibid. (quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456...

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