The opinion of the court was delivered by: BREWSTER
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.
Prior to July 1, 1996, the California Public Records Act provided that "state and local law enforcement agencies shall make public ... the 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.
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.
Is the amendment to Cal. Gov. Code § 6254 an unconstitutional limitation on plaintiff's commercial speech?
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, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (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, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978) ("This Court has never intimated a First Amendment guarantee of a right of access to all sources of information within government control .... [Accordingly], there 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 ("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.