946 F.Supp. 822 (S.D.Cal. 1996), Civ. 96-0888, United Reporting Pub. Corp. v. Lungren

Docket Nº:Civ. 96-0888
Citation:946 F.Supp. 822
Party Name:United Reporting Pub. Corp. v. Lungren
Case Date:November 27, 1996
Court:United States District Courts, 9th Circuit, Southern District of California

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946 F.Supp. 822 (S.D.Cal. 1996)



Daniel LUNGREN, Attorney General for the State of California, et al., Defendants.

Civ. No. 96-0888B (AJB).

United States District Court, S.D. California.

Nov. 27, 1996

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Guylyn R. Cummins, Ben P. Jones, Gray Cary Ware & Freidenrich, A Professional Corporation, San Diego, CA, for Plaintiff.

James K. Hahn, Frederick N. Merkin, Byron R. Broeckman, Los Angeles, CA, Linda A. Cabatic, Allen Sumner, Sacramento, CA, Ian Fan, San Diego, CA, for Defendants.


BREWSTER, District Judge.

This case presents a facial challenge to a provision of the California Public Records Act, California Government Code § 6254, as that provision was amended, effective July 1, 1996, pursuant to Senate Bill 1059. The Court, having reviewed the moving and opposing papers and the oral arguments of counsel hereby GRANTS plaintiff's motion for summary judgment and DENIES defendants' motions for summary judgment.

I. Background

Prior to July 1, 1996, the California Public Records Act 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. This made arrestee addresses available to anyone for any purpose. Cal.Gov.Code § 6254(f) was amended, effective July 1, 1996, to prohibit the release of arrestee addresses only to people who intend to use those addresses for commercial purposes. Cal.Gov.Code § 6254(f)(3) 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 requester 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.

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Plaintiff United Reporting Publishing Corp. ("United Reporting") is a private publishing service that has been providing, under the former version of this statute, the names and addresses of recently arrested individuals to its clients. These clients include attorneys, insurance companies, drug and alcohol counselors, religious counselors, driving schools, and others. The defendants remaining in this action are various state and local law enforcement agencies.

Plaintiff's complaint seeks declaratory judgment and injunctive relief pursuant to 42 U.S.C. § 1983 to hold the amendment to section 6254 unconstitutional under the First Amendment to the United States Constitution (first cause of action), and unconstitutional under the Fourteenth Amendment to the United States Constitution (second, third, and fourth causes of action).

Plaintiff United Reporting and defendants County of San Diego Sheriff's Department, California Highway Patrol, and Los Angeles Police Department have filed cross-motions for summary judgment.

II. Issue

Is the amendment to Cal.Gov.Code § 6254 an unconstitutional limitation on plaintiff's commercial speech?

II. Discussion

A. Scope of First Amendment Protection

Courts have historically recognized a common law right, but not an absolute right, of access to certain government records, including judicial records. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-98, 98 S.Ct. 1306, 1311-12, 55 L.Ed.2d 570 (1978). In this case, this common law right has been supplanted by the California Public Records Act of 1968 which made public all arrest records of law enforcement agencies. It is the 1996 amendment to this statute which blocks access to addresses of arrestees to persons who intend to use this information for commercial purposes. The issue, therefore, is whether plaintiff is protected by an overriding federal constitutional right of access to this particular government information.

Courts have uniformly answered this question in the negative: there is no constitutional right, and specifically no First Amendment right, of access to all governmental records. Houchins v. KQED, Inc., 438 U.S. 1, 9, 14, 98 S.Ct. 2588, 2593-94, 2596-97, 57 L.Ed.2d 553 (1978) ("This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control.... [Accordingly], [t]here is no discernible basis for a constitutional duty to disclose, or for standards governing disclosure of or access to information"); Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1511 (10th Cir. 1994) (same); Calder v. I.R.S., 890 F.2d 781, 783-84 (5th Cir. 1989) ("the right to speak and publish does not carry with it an unrestricted license to gather information"); Speer v. Miller, 864 F.Supp. 1294, 1297-98 (N.D.Ga.1994). The First Amendment directly protects the expression of information already obtained; it does not guarantee access to the sources of information. Houchins, 438 U.S. at 10, 98 S.Ct. at 2594 ("reference to a public entitlement to information mean[s] no more than that the government cannot restrain communication of whatever information the media acquire--and which [the government] elect[s] to reveal"). As explained by the Supreme Court:

There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy.... The public's interest in knowing about its government is protected by the guarantee of a Free Press, but the protection is indirect. The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act.

The Constitution, in other words, establishes the contest, not its resolution. Congress may provide a resolution, at least in some instances, through carefully drawn legislation. For the rest, we must rely, as so often in our system we must, on the tug and pull of the political forces in American society.

Id. at 14-15, 98 S.Ct. at 2596-97, (quoting Hon. Potter Stewart, "Or of the Press," 26

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Hastings L.J. 631, 636 (1975)). 1

The Court concludes that the First Amendment does not provide plaintiff with a blanket constitutional right of access to arrestee addresses; the state could constitutionally prevent everyone from having access to this information. This does not, however, foreclose plaintiff's claim. As previously outlined, the instant statute is an amendment to the California Public Records Act which makes all arrestee information public, but then limits access only to those who plan to use arrestee addresses in commercial speech. The amended statute states that "[a]ddress 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[.]" Cal.Gov.Code § 6254(f)(3). Functionally, this is a limitation on commercial speech. The government is the only source of this information and by statute is disseminating it to everyone except commercial users. The government cannot denominate this a limitation on access in order to achieve a limitation on non-preferred speech. This limitation on access constitutes an indirect limitation on commercial speech.

Recently, two circuits held similar statutes limiting the right of access to government arrest information indirectly implicate First Amendment concerns because such statutes indirectly "punish" certain (commercial), but not all, uses of the information 2. Lanphere & Urbaniak v. Colorado, 21 F.3d 1508 (10th Cir. 1994), and Speer v. Miller, 15 F.3d 1007 (11th Cir. 1994), on remand, 864 F.Supp. 1294 (N.D.Ga.1994) 3, both involved state statutes that denied commercial users access to criminal records. 4 In both cases, the courts acknowledged

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that there is no general First Amendment right of access to criminal justice records. Lanphere, 21 F.3d at 1512; Speer, 864 F.Supp. at 1297-98. Both courts, however, went on to conclude that the First Amendment was implicated by the respective state statutes. As explained by Lanphere, the First Amendment is implicated because a direct ban on access to information can serve as an indirect ban on the usage of such information in speech, and therefore can constitute impermissible content-based regulation of speech:

Although criminal justice records themselves do not constitute speech, the Colorado Legislature has drawn a regulatory line based on the speech use of such records. [The challenged statute] disallows the release of records to those wishing to use them for commercial speech, while allowing the release of the same records to those having a noncommercial purpose. Because commercial speech is protected under the First Amendment (though it is accorded lesser protection than 'core' First Amendment speech), and because such speech includes direct mail solicitation, what we have in the end is a content-based restriction on protected speech.

21 F.3d at 1513 (citations omitted); see Speer, 864 F.Supp. at 1299; see also Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) (use tax on paper and ink levied only on producers of periodic publications singled out the press for differential treatment and was an unconstitutional indirect limitation on speech).

The Court concludes that the amended Cal.Gov.Code § 6254(f) is a content-based indirect limitation on commercial speech which implicates the First Amendment.


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