A California statute prohibiting the release of arrestee names and addresses for commercial purposes is unconstitutional, the U.S. Court of Appeals for the Ninth Circuit ruled in June.

The decision involves an amendment to the California Government Code adopted in 1996 that bars state and local law enforcement agencies from releasing arrestee information to people who intend to use it "directly or indirectly to sell a product or service." The provision does allow release of such information for "scholarly, journalistic, political, or governmental purpose, or...for investigation purposes by a licensed private investigator." Before the code was amended, anyone could use the information for any purpose.

United Reporting Publishing Corp. challenged the amended provision on First Amendment grounds in a federal district court. The firm sells arrestee information to attorneys, insurance companies, counselors, and driving schools.

Ninth Circuit Not Afraid of ComSpeech If it weren't for the Supreme Court, the Ninth Circuit might be inclined to give commercial speech full First Amendment protection. That seemed to be the signal, at least, in United Reporting. 'The current debate centers not on whether commercial speech is a form of expression entitled to constitutional protection, but on the validity of the distinction between commercial and noncommercial speech," Judge Diarmuid F. O'Scannlain wrote. He cited Justice Thomas's expansive view of commercial speech in his 44 Liquormart concurrence: "I do not see a philosophical or historical basis for asserting that 'commercial' speech is of 'lower value' than 'noncommercial' speech. Indeed, some historical materials suggest to the contrary." Judge O'Scannlain also cited the seminal law review article "Who's Afraid of Commercial Speech?" in which Ninth Circuit colleague Judge Alex Kozinski and Stuart Banner argued for a unified standard. But then there's Washington. "We are compelled, however, under the Supreme Court's current jurisprudence, to afford commercial speech less protection from governmental regulation than some other forms of expression," Judge O'Scannlain conceded.

United Publishing argued at the district level and again on appeal that its use of arrestee records was fully protected noncommercial speech. The publisher claimed that commercial speech was limited to "speech which does no more than propose a commercial transaction," while its publishing activities involved "the passing of ideas and information."

The definition of commercial speech has become much broader and more vague since the "commercial transaction" language first appeared in 1970, however, a fact that both courts were quick to point out in rejecting the claim of noncommercial speech.

Even so, "United Reporting's speech would be considered commercial under either a broad or a narrow definition," the Ninth Circuit said. "United Reporting sells arrestee information to clients; nothing more."

The appellate court then undertook a Central Hudson analysis. The court acknowledged that protecting the privacy of arrestees was a substanial governmental interest of the Los Angeles Police Department, which had brought the appeal.

In considering Central Hudson Part 3, whether the statute advanced that interest "in a direct and material way," the court concluded that it did not. "The myriad of exceptions [scholarly, journalistic, etc.] ... precludes the statute from directly and materially advancing the government's purported privacy interest," the court said. It agreed with the district court that the statute "appears to be more directed at preventing solicitation practices," since almost any other use of the information is acceptable. The court saw no need to address Central Hudson Part 4 ("not more extensive than is necessary").

In late 1997 the Ninth Circuit reached a similar outcome in Valley Broadcasting, ruling that a federal ban on the broadcast of private casino gambling ads was unconstitutional because it contained a host of exceptions for lotteries, fishing contests, and Indian-run casinos. Those exceptions likewise doomed the casino ad ban under Central Hudson Part 3.