LOS ANGELES POLICE DEPARTMENT v. UNITED REPORTING PUBLISHING CORP.
No. 98-678
Supreme Court of the United States
Argued October 13, 1999-Decided December 7, 1999
528 U.S. 32
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.*
*A brief of amici curiae urging reversal was filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Daniel Smirlock, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, Charles M. Condon of South Carolina, and Christine O. Gregoire of Washington.
Briefs of amici curiae urging affirmance were filed for the Direct Marketing Association by Robert L. Sherman; for the Individual Reference Services Group et al. by Ronald L. Plesser, James J. Halpert, and Emilio W. Cividanes; for Investigative Reporters and Editors, Inc., by David
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
California
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
“[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
Before the effective date of the amendment, respondent sought declaratory and injunctive relief pursuant to
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
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 (1978)). The court applied the test set out in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm‘n of N. Y., 447 U. S. 557, 566 (1980), and found that the asserted governmental interest in protecting arrestees’ privacy was substantial. But, the court held that “the numerous exceptions to
We hold that respondent was not, under our cases, entitled to prevail on a “facial attack” on
Respondent‘s primary argument in the District Court and the Court of Appeals was that
The traditional rule is 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 (1982) (citing Broadrick v. Oklahoma, 413 U. S. 601, 610 (1973)).
Prototypical exceptions to this traditional rule are First Amendment challenges to statutes based on First Amendment overbreadth. “At least when statutes regulate or proscribe speech ... the transcendent value to all society of constitutionally protected expression is deemed to justify allowing ‘attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.‘” Gooding v. Wilson, 405 U. S. 518, 520-521 (1972) (quoting Dombrowski v. Pfister, 380 U. S. 479, 486 (1965)). “This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their right for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” Gooding v. Wilson, supra, at 520-521. See also Thornhill v. Alabama, 310 U. S. 88 (1940).
In Gooding, for example, the defendant was one of a group that picketed an Army headquarters building carrying signs opposing the Vietnam war. A confrontation with the police occurred, as a result of which Gooding was charged with “using opprobrious words and abusive language ... tending to cause a breach of the peace.” 405 U. S., at 518-519. In Thornhill, the defendant was prosecuted for violation of a statute forbidding any person to ““picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delay-
This is not to say that the threat of criminal prosecution is a necessary condition for the entertainment of a facial challenge. We have permitted such attacks on statutes in appropriate circumstances where no such threat was present. See, e. g., National Endowment for Arts v. Finley, 524 U. S. 569 (1998) (entertaining a facial challenge to a public funding scheme); Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725 (1997) (entertaining a landowner‘s facial challenge to a local redevelopment plan); Anderson v. Edwards, 514 U. S. 143 (1995) (entertaining a facial challenge to a state regulation restructuring the disbursal of welfare benefits).
But the allowance of a facial 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.” Ferber, supra, at 767 (citing Broadrick, supra, at 610). This general rule reflects two “cardinal principles” of our constitutional order: the personal nature of constitutional rights and the prudential limitations on constitutional adjudication. 458 U. S., at 767. “By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule, we face ‘flesh and blood’ legal problems with data ‘relevant and adequate to an informed judgment.‘” Id., at 768 (footnotes omitted).
Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed. “Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is ‘strong medicine’ and have employed it with hesitation, and then ‘only as a last resort.‘” Id., at 769 (citing Broadrick, supra, at 613). “[F]acial overbreadth adjudication is an exception to our
The Court of Appeals held that
We believe that, at least for purposes of facial invalidation, petitioner‘s view is correct. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. See Rubin v. Coors Brewing Co., 514 U. S. 476 (1995). The California statute in question 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. For purposes of assessing the propriety of a facial invalidation, 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.2 Cf. Houchins v. KQED, Inc., 438 U. S. 1, 14 (1978).
To the extent that respondent‘s “facial challenge” seeks to rely on the effect of the statute on parties not before the Court-its potential customers, for example-its claim does not fit within the case law allowing courts to entertain facial
The Court of Appeals was therefore wrong to facially invalidate
The judgment of the Court of Appeals is accordingly
Reversed.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I join the Court‘s opinion because I agree that, insofar as this case presents a facial challenge to the statute, the fact that it is formally nothing but a restriction upon access to government information is determinative. As the Court says, that fact eliminates any “chill” upon speech that would allow a plaintiff to complain about the application of the statute to someone other than himself.
I understand the Court‘s opinion as not addressing the as-applied challenge to the statute, and as leaving that question open upon remand. That seems to me a permissible course, since the Court of Appeals’ judgment here affirmed without qualification the judgment of the District Court, which rested exclusively upon the facial unconstitutionality of the statute and hence purported to invalidate it in all its applications. Though there are portions of the Court of Appeals’ opinion that address the particular circumstances of this respondent, I do not read it as narrowing the facial invalida-
I do not agree with JUSTICE GINSBURG that what renders this statute immune from a facial challenge necessarily renders it immune from an as-applied challenge as well. A law that is formally merely a restriction upon access to information subjects no speaker to the risk of prosecution, and hence there is no need to protect such speakers by allowing someone else to raise their challenges to the law. But it is an entirely different question whether a restriction upon access that 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 upon access to government information. That question-and the subsequent question whether, if it is a restriction upon speech, its application to this respondent is justified-is not addressed in the Court‘s opinion.
JUSTICE GINSBURG, with whom JUSTICE O‘CONNOR, JUSTICE SOUTER, and JUSTICE BREYER join, concurring.
I join the Court‘s opinion, which recognizes that
As the Court observes, see ibid., the statute at issue does not restrict speakers from conveying information they already possess. Anyone who comes upon arrestee address information in the public domain is free to use that information as she sees fit. It is true, as JUSTICE SCALIA suggests, ante this page (concurring opinion), that the information could be provided to and published by journalists, and
California could, as the Court notes, constitutionally decide not to give out arrestee address information at all. See ante, at 40. It does not appear that the selective disclosure of address information that California has chosen instead impermissibly burdens speech. To be sure, the provision of address information is a kind of subsidy to people who wish to speak to or about arrestees, and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed. California could not, for example, release address information only to those whose political views were in line with the party in power. Cf. Board of Comm‘rs, Wabaunsee Cty. v. Umbehr, 518 U. S. 668 (1996) (local officials may not terminate an independent contractor for criticizing government policy). But if the award of the subsidy is not based on an illegitimate criterion such as viewpoint, California is free to support some speech without supporting other speech. See Regan v. Taxation With Representation of Wash., 461 U. S. 540 (1983).
Throughout its argument, respondent assumes that
JUSTICE STEVENS, with whom JUSTICE KENNEDY joins, dissenting.
The majority‘s characterization of this case as an improper facial challenge is misguided. Even a brief look at the complaint reveals that respondent unequivocally advanced both a facial and an “as applied” challenge to the constitutionality of
To determine whether the Amendment is valid as applied to respondent, it is similarly not necessary to invoke the overbreadth doctrine. That doctrine is only relevant if the challenger needs to rely on the possibility of invalid applications to third parties. In this case, it is the application of the Amendment to respondent itself that is at issue. Nor, in my opinion, is it necessary to do the four-step Central Hudson dance, because I agree with the majority that the Amendment is really a restriction on access to government information rather than a direct restriction on protected speech. For this reason, the majority is surely correct in observing that “California could decide not to give out arrestee information at all without violating the First Amendment.” Ante, at 40. Moreover, I think it equally clear that California could release the information on a selective basis to a limited group of users who have a special, and legitimate, need for the information.
A different, and more difficult, question is presented when the State makes information generally available, but denies access to a small disfavored class. In this case, the State is making the information available to scholars, news media, politicians, and others, while denying access to a narrow category of persons solely because they intend to use the information for a constitutionally protected purpose. As
What the State did here, in my opinion, is comparable to that obviously unconstitutional discrimination. In this case, the denial of access is based on the fact that respondent plans to publish the information to others who, in turn, intend to use it for a commercial speech purpose that the State finds objectionable. Respondent‘s proposed publication of the information is indisputably lawful-petitioner concedes that if respondent independently acquires the data, the First Amendment protects its right to communicate it to others. Brief for Petitioner 27; see also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 496 (1975). Similarly, the First Amendment supports the third parties’ use of it for commercial speech purposes. See Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472 (1988). Thus, because the State‘s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, I think it must assume the burden of justifying its conduct.
The only justification advanced by the State is an asserted interest in protecting the privacy of victims and arrestees. Although that interest would explain a total ban on access, or a statute narrowly limiting access, it is insufficient when the data can be published in the news media and obtained by private investigators or others who meet the Amendment‘s vague criteria. This Amendment plainly suffers from the same “overall irrationality” that undermined the statutes at issue in Rubin v. Coors Brewing Co., 514 U. S. 476, 488 (1995), and Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173 (1999). By allowing such widespread access to the information, the State has eviscerated any rational basis for believing that the Amendment will truly protect the privacy of these persons. See Cox Broadcasting Corp., 420 U. S., at 493-495.
That the State might simply withhold the information from all persons does not insulate its actions from constitutional scrutiny. For even though government may withhold
Accordingly, I respectfully dissent.
Notes
“Other provisions of this subdivision notwithstanding, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:
“(1) The full name and occupation of every individual arrested by the agency, the individual‘s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.
“(2) Subject to the restrictions imposed by