State Can Bar Sale of Records, Justices Rule

WASHINGTON —  In a victory for personal privacy over wide-open free speech, the Supreme Court ruled Tuesday that the state of California can bar businesses from selling public records of crime victims and arrestees.

The government can engage in “selective disclosure” of public information, the justices said.

The ruling may pose problems in the future for those who rely on access to public records, from operators of computerized databanks and direct marketers to journalists.

On a 7-2 vote, the court revived a 3-year-old state law that seeks to shield those whose names and addresses appear in police records. Journalists, scholars, judges and private investigators obtain these records routinely. However, the law made it a crime to use these names and addresses “to sell a product or service.”

The names of arrestees are of interest to lawyers, insurers, alcohol counselors and schools for drunk drivers, among others. And the names and addresses of recent crime victims can be useful to those who sell home security systems.

The restriction on selling the names was challenged by United Reporting Publishing Corp. of Sacramento, whose newsletter and computer site published names of recent arrestees.

The company contended that the law violated the 1st Amendment’s protection of freedom of speech and the press. A federal judge and the U.S. 9th Circuit Court of Appeals agreed and struck down the law, saying that it discriminated against “commercial speech.”

The Los Angeles Police Department appealed this issue to the Supreme Court, and its lawyers won a reversal Tuesday.

Chief Justice William H. Rehnquist said the case had less to do with free speech than with access to government records. “California could decide not to give out arrestee information at all without violating the 1st Amendment,” he said. Therefore, the state can regulate “access to information in the hands of the police department,” he said in LAPD vs. United Reporting, 98-678.

During the oral argument in October, the justices had a spirited debate about who qualified as a journalist under the law. What’s the difference, they asked, between a newspaper such as the Los Angeles Times that makes money by publishing information--including data from state records--and a computerized service that publishes names of arrestees?

In the end, the court did not decide that question. Instead, the justices simply upheld the state law as constitutional in principle, and then sent the case back to the 9th Circuit. There, lawyers for the computerized news service will have a chance to argue that they should qualify as journalists, and therefore, escape the restriction on selling information from public records.

“This is a very good result,” said Washington attorney Thomas Goldstein, who represented the LAPD. “At bottom, states can make reasonable judgments about who they give information to.”

Clinton administration lawyers had sided with the LAPD. They feared that a broad ruling mandating public disclosure of government records could threaten privacy rights, including sensitive data from medical records and personal data in motor vehicles records.

But direct marketers and some press groups worried that outcome will encourage more restrictions on public information.

“It’s very disappointing for the court to say marketers can be singled out for disfavored treatment,” said New York attorney Robert L. Sherman, who represents the Direct Marketing Assn.

The lawyer for United Reporting said she believed that her clients will prevail in the end. “This was a narrow decision. Now it’s on to Round 2,” said Guylyn R. Cummins, a San Diego lawyer. “Our clients believe they fit well into the journalistic exception.”

Though the California law allows journalists to obtain arrest records, press groups supported the computerized news service in its Supreme Court battle.

“We don’t believe the government should decide who will make good use of public information,” said Rebecca Daugherty of the Reporters Committee for Freedom of the Press in Arlington, Va. “It’s also troubling when the court takes a dim view of the 1st Amendment right of access to public records.”

Only Justices John Paul Stevens and Anthony M. Kennedy dissented, saying that the “state’s discriminatory ban on access to information” should have been invalidated.

Privacy and public records figure in a second case that is still pending before the court. Congress has barred states from selling or disclosing personal data from motor vehicle records, but South Carolina has challenged this restriction on states’ rights grounds. The case, Reno vs. Condon, 98-1464, was argued on Nov. 10.