American Bar Association
Forum on Communications Law
by BRUCE J. ENNIS, JR., PAUL M. SMITH, AND DONALD B. VERRILLI, JR.
United Reporting Decided
On December 7, 1999, the U.S. Supreme Court issued its first merits decision of the Term in a free speech case, Los Angeles Police Department v. United Reporting Publishing Corporation, No. 98-678. The result was a defeat for the First Amendment, but one whose doctrinal and practical consequences are far from clear and may well be limited.
The case involved a California statute (section 6254(f)(3) of the California Government Code) providing that persons seeking access to police records listing the addresses of arrestees and crime victims be required to declare under penalty of perjury that they seek the information for a "scholarly, journalistic, political or governmental purpose." The provision forbids using address information obtained through this official means from being used "directly or indirectly to sell a product or service to any individual or ground of individuals, and the requester shall execute a declaration to that effect under penalty of perjury."1
In Wilson, police officers entered the home of Mr. and Mrs. Charles Wilson in order to execute a warrant for the arrest of their son, Dominic. Accompanying the officers were two reporters from the Washington Post. The police officers questioned the Wilsons and unsuccessfully searched the house for Dominic. During the search, the reporters took pictures of Mr. Wilson wearing only underpants and of Mrs. Wilson wearing a sheer nightgown. They also photographed Mr. Wilson belly-down on his living room floor with a police officer's knee in his back and a gun to his head.
United Reporting provides the names and addresses of recently arrested individuals to attorneys, insurance companies, counselors, and driving schools. Until passage of the law at issue in 1996, United Reporting had obtained that information directly from police records, and then disseminated it to customers, who in turn used the information to provide arrestees with information about potential services. United Reporting challenged the 1996 provision as a violation of its First Amendment commercial speech rights. The challenge was somewhat unusual because the law does not restrain speech directly. Rather, it denies access to government information selectively to those who would put the information to a commercial use. Nevertheless, the law quite clearly had adverse effects on speech. It burdened United Reporting's efforts to disseminate information to its customers, and in turn reduced the ability of lawyers, counselors, and others to send targeted mailings informing arrestees about services they might need. It was on this basis that United Reporting challenged the law, and on this basis that the Ninth Circuit invalidated it.
The Court reversed in an opinion authored by Chief Justice Rehnquist. The Court declined to decide whether the law violated the First Amendment as applied to United Reporting. Instead, construing the Ninth Circuit as holding solely that the law was facially invalid, the Court held that United Reporting could not maintain a facial challenge. Why that is so is not entirely clear from the opinion, which focuses on the overbreadth doctrine. Acknowledging that a First Amendment overbreadth challenge is "an exception to the traditional rule that the person to whom a statute may constitutionally be employed may not challenge the statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court," the opinion goes on to conclude that United Reporting could not bring such a challenge to section 6254(f)(3). United Reporting could not assert the First Amendment rights of its customers (who were not before the Court) because the law did not chill their speech. They remained free to communicate with arrestees.
What is less clear is why the Chief Justice thought United Reporting could not assert its own rights to obtain the information for the purpose of publishing it. United Reporting was not seeking to invoke the overbreadth doctrine, and its facial challenge was not improper merely because section 6254(f)(3) did not chill the speech of parties not before the court. Rather, United Reporting challenged the provision because United Reporting itself believed it was discriminated against in its efforts to obtain information for publication. A facial challenge is appropriate in such circumstances if the law at issue is unconstitutional as applied to the party challenging it, and the law cannot be saved by severing its unconstitutional applications from its constitutional applications. The Court's only answer here, however, was that United Reporting "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." But United Reporting's right to challenge section 6254(f)(3) surely cannot depend on that. Indeed, elsewhere in the majority opinion the Court notes that the LAPD denied United Reporting access to the requested information because United Reporting's employees "could not sign" the necessary declaration of a noncommercial purpose-not that they would not sign. Thus, the Court would appear to have done more than merely deny United Reporting the right to challenge the law on the ground that it burdened the speech rights of its customers. United Reporting was denied the opportunity to bring a facial challenge based on the law's application to it, because United Reporting had not taken the step of seeking to qualify for access-a step that would not only have been futile but also could have subjected United Reporting to prosecution for perjury.
Justice Ginsburg (joined by Justices O'Connor, Souter, and Breyer) concurred. The focus of these Justices was not, however, United Reporting's standing to challenge the law on its face. Rather, the four joining this opinion believed that section 6254(f)(3) is constitutional even as applied to entities such as United Reporting. Justice Ginsburg stressed that the provision restricted no speech directly, and did not limit the use to which arrestee address information could be put once it was legitimately in the public domain. Nor, in her view, was the statute's "selective disclosure" of government information an impermissible burden on protected speech. Viewing access as "a kind of subsidy," Justice Ginsburg opined that government could constitutionally choose to subsidize some categories of speakers so long as its choices were "not based on an illegitimate criterion such as viewpoint." Her opinion rejected the argument that the provision reduced the "total flow of information," reasoning that states faced with a choice of either keeping information to themselves or disclosing it without limits might well opt for the former.
Justice Scalia (joined by Justice Thomas) also concurred separately. Unlike the Justices joining the Ginsburg opinion, Justices Scalia and Thomas stressed the limited scope of the Court's holding that United Reporting could not bring a facial challenge to section 6245(f)(3). Indeed, Justice Scalia's opinion all but declared expressly that there were not five votes for Justice Ginsburg's position. Scalia made clear that he did "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." In his view, "a restriction upon access that allows access to the press . . . but at the same time denies access to persons who wish to use the information for certain speech purposes" may well be "in reality a restriction upon speech." He emphasized that the Court had not resolved whether such a restriction violated the First Amendment when applied to entities such as United Reporting.
Justice Stevens (joined by Justice Kennedy) dissented. Stevens started with a proposition that would seem clear enough-namely, that United Reporting was challenging the application of section 6254(f)(3) to it, not to others. Thus, he reasoned, the overbreadth doctrine was irrelevant. Because section 6254(f)(3) selectively denies access to information based on the state's "desire to prevent the information from being used for constitutionally protected purposes," Stevens concluded, the First Amendment should require the state to "assume the burden of justifying its conduct." Protecting the privacy of arrestees could not justify the restriction because the same information could be lawfully published in the news media. A state interest in preventing lawyers from soliciting law business from unrepresented defendants presented a better justification for the statute, Stevens thought, but ultimately failed because "it relies on discrimination against disfavored speech" that is otherwise constitutionally protected.
Time will tell whether the Court's decision in United Reporting signals significant change in First Amendment law. The badly fractured nature of the decision precludes definitive lessons. Although technically seven Justices endorsed an opinion announcing a rather restrictive rule of First Amendment standing (and applying an arguably even more restrictive one than the one announced), there is little reason to think there are seven votes for the position of the Chief Justice. The four Justices joining Justice Ginsburg's concurrence voted to uphold the statute on the ground that it was constitutional even as applied to United Reporting-not on the restrictive standing holding announced by the Chief Justice. In a future case, at least three of those concurring Justices would not be expected to support so restrictive a rule of First Amendment standing as announced by the Chief Justice here.
The decision may say rather more about the substance of commercial speech doctrine-but even here the message is ambiguous. That Justice Ginsburg's concurrence commanded four votes suggests that laws selectively discriminating against commercial speech, at least in the context of access restrictions, may face only limited scrutiny. In this regard, the Chief Justice's decision to focus on First Amendment standing rather than commercial speech doctrine is a bit puzzling. Had he joined the Ginsburg position, it would have commanded a majority for a proposition that the author of the Posadas decision must surely favor. There would appear, in contrast, to be four votes (Scalia, Thomas, Stevens, and Kennedy) sympathetic to the argument that the First Amendment should not tolerate access restrictions selectively discriminating on the basis of the speech use to which government-provided information will be put, absent a strong justification. Thus the question whether government may selectively discriminate against commercial speech through means other than direct restrictions (i.e., through indirect burdens such as access restrictions) remains for another day.
Argument in United States v. Playboy Entertainment Group
On November 30, 1999, the Court heard a spirited argument in United States v. Playboy Entertainment Group, an appeal involving the constitutionality of § 505 of the Telecommunications Act of 1996, which requires a cable television operator providing "sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming" to either "fully scramble or otherwise fully block the video and audio portions of such channel so that one not a subscriber . . . does not receive it" or, alternatively, not provide that programming "during the hours of the day (as determined by the [Federal Communcations Commission]) when a significant number of children are likely to view it."2 Playboy successfully challenged the law before a three-judge federal district court, on the ground that it was a content-based regulation of cable speech and was not the most narrowly tailored means of advancing the government's interest in preventing the unwanted intrusion of sexually oriented programming into nonsubscribing homes.
In the Supreme Court, the argument touched on many of the important issues of current First Amendment doctrine: the applicable standard of review (strict scrutiny or something less); the need for government to prove with either congressional findings or trial evidence (or both) that speech restrictions are justified; whether government should have more regulatory leeway when protecting the interests of children; the continuing relevance of Federal Communications Commission v. Pacifica. Perhaps most surprising (at least until the Court issued United Reporting the following week) was the extended discussion of whether Playboy could properly maintain a facial challenge to section 505-an argument that was not the focus of the briefing in the case. Very early in the argument, Justice Scalia pressed the United States on whether Playboy could properly bring a facial challenge to the law, and he returned often to the theme. The gist of his questions appeared to be that because (in his view) the materials at issue might well have been obscene, those materials could properly be restricted without any justification by the government, and Playboy might not have the right to advance the First Amendment rights of parties not before the Court because the record did not show the existence of speakers engaging in indecent speech that was not obscene.
When not grappling with these surprising questions about the propriety of a facial challenge, counsel for the United States pressed for leeway for the government when regulating to protect children from unwanted exposure to sexually oriented material via a pervasively intrusive medium such as cable television. Counsel for Playboy stressed that the government had not shown that a less restrictive approach-giving cable households notice of the risk of signal bleed and an opportunity to install technology that would block it-could not effectively serve the government's interest in protecting children, without either imposing massive costs on cable operators or restricting sexually oriented cable programming to late-night hours. Justice Breyer's questions attempted to narrow the issue to one of means: Did the First Amendment dictate that government use an "opt-in" approach to regulation under which households would risk exposure to signal bleed unless they affirmatively requested additional protection, or did Congress have sufficient leeway to mandate an "opt-out" approach under which households that had not ordered sexually oriented programming were affirmatively protected from the risk of exposure to such programming when children were likely viewing television? The Justices debated with counsel the question whether the government should be required to prove with evidence that an opt-in approach would advance the government's interest less effectively, or whether instead reviewing courts could rely on "common sense" to make such a judgment. A decision in the case is expected by June of next year.
Cert. Granted in Santa Fe Independent School Dist. v. DoeEndnotes
The Court added another First Amendment case to its docket when it granted certiorari in Santa Fe Independent School Dist. v. Doe, a case out of the Fifth Circuit raising another knotty issue at the intersection of the Free Speech and Establishment Clauses. The Court agreed to review a decision of the Fifth Circuit invalidating, on Establishment Clause grounds, Santa Fe, Texas, school district's policy of allowing student-initiated voluntary sectarian prayer before Friday evening varsity football games.3 The majority opinion in the Fifth Circuit had invalidated the policy on the ground that it amounted to state-sponsored prayer before a "government organized audience."4 In dissent, Judge Jolly contended that "the majority's view transgresses the most fundamental First Amendment rights," because it discriminates against student-initiated religious speech.5 The case will test the limits of the Court's holding in Rosenberger v. Rector and Visitors of the University of Virginia, the 1995 decision establishing that a state university policy of denying otherwise generally available subsidies for printing costs to campus religious organizations violated the Free Speech Clause. The case should be argued and decided this Term.1. CAL. GOVT. CODE § 6254(f)(3).2. Pub. L. No. 104-104, 110 Stat. 136, 142.3. Jane Doe v. Santa Fe Independent School Dist., 168 F.3d 806 (5th Cir. 1999).4. Santa Fe School Dist., 168 F.3d at 822-23.5. Id. at 824.
Bruce J. Ennis, Jr., Paul M. Smith, and Donald B. Verrilli, Jr., are partners in the Washington, D.C., office of Jenner & Block, Mr. Ennis argued the United Reporting case before the Supreme Court.