Court Hears Arguments on 1st Amendment

WASHINGTON —  Can the Los Angeles Police Department bar businesses from selling the names and addresses of crime victims or arrestees, even though this information is given to journalists, scholars and other government agencies?

That question came before the Supreme Court on Wednesday and it provoked a lively argument over what is the proper line between open public records and a citizen’s right to privacy. In a series of exchanges, the justices also struggled to define the legal difference between The Times and a computer reporting service.

By the end of the hourlong argument, the justices sounded as though they were inclined to revive the disputed state law to protect the public against solicitors.

In 1996, the California Legislature amended the state’s open records law to protect the privacy of arrestees and crime victims. Legislators had heard complaints that lawyers, drug and alcohol counselors and driving schools obtain lists of those names and use them to solicit business.

The new law, which never went into effect, included an exception that allowed the information to be disclosed for a “scholarly, journalistic, political or government purpose.”

Justices David H. Souter and Antonin Scalia wondered how the state can distinguish between a newspaper and a business that publishes accurate, public information.

“What if the Los Angeles Times put out a special section every day with this information? And they surrounded it with world and national news. Would they be in violation?” Souter asked.

No, replied Washington attorney Thomas Goldstein, who was defending the law for the LAPD. “They are doing it for a journalistic purpose.”

“I don’t see the difference,” Scalia responded. “You say they are trying to educate the public. They’re also trying to sell papers.”

Scalia questioned whether there is a special status for the press when public records are released. “If you say the press can have it, then everybody can have it. Joe Six-Pack ought to be able to have it too,” he said.

The 1996 law was successfully challenged by the United Publishing Corp., a computer reporting service that compiles arrest records and sells the names to subscribers. In Los Angeles, about 350 people are arrested each day, lawyers told the court.

United Reporting maintained that it had a 1st Amendment right to publish the names and addresses. A federal judge and the U.S. 9th Circuit Court of Appeals agreed and barred the law from taking effect.

Although it was a state measure, only Los Angeles City Atty. James K. Hahn appealed the issue to the Supreme Court. The Clinton administration joined the appeal, in part because the case raises the broader question of the 1st Amendment status of computer databanks.

As an example, an administration lawyer cited AIDS records and similar confidential health information. Public agencies may gather data on people with HIV and make this information available to hospitals or other agencies. But just because they do so, the 1st Amendment should not be interpreted to require public release of these names, the administration argued.

“We were concerned about massive, wholesale invasions of privacy,” Goldstein said. The government should be permitted to release information selectively, he argued.

But Bruce J. Ennis, a Washington lawyer representing United Reporting, maintained that the 1st Amendment demands “equality of access once the door is opened.”

However, several justices voiced sharp disagreement.

“This is a far-out argument,” said Justice Sandra Day O’Connor.

“The state sees an interest in privacy. What’s wrong with that?” said Justice Stephen G. Breyer.

Three others--Justices Ruth Bader Ginsburg, John Paul Stevens and Souter--said that the state wants to shield the public from being harassed by solicitors and junk mailers.

Chief Justice William H. Rehnquist also took a shot at the 9th Circuit Court for striking down the law before state officials could clarify who was covered by it.

“How did the 9th Circuit go about interpreting this before the state could?” he asked.

“Improvidently,” Goldstein responded.

“So what’s new?” said Rehnquist, a frequent critic of the liberal-leaning court.

Yet, the opinion in the LAPD case appealed to many conservatives because it extended 1st Amendment protection to businesses and so-called commercial speech. It was written by Judge Diarmuid O’Scannlain, a conservative from Portland, Ore., who was appointed by President George Bush.

The high court will issue a ruling in the case (LAPD vs. United Reporting, 98-678) in several months.

The court also heard arguments in a major states right case.

At issue is whether the nation’s millions of state employees, including university professors, are protected by the federal laws that make it illegal to discriminate based on age or disability.

For the five conservative justices, the answer appeared to be no. A ruling in Kimel vs. Florida Board of Regents, 98-791, is expected in a few months.

--- UNPUBLISHED NOTE ---

This article incorrectly said that U.S. 9th Circuit Court of Appeals Judge Diarmuid F. O’Scannlain was appointed by President George Bush. He was appointed by President Ronald Reagan.

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