Subscribe to Cases that cite 528 U.S. 32





No. 98-678. Argued October 13, 1999-Decided December 7,1999

Respondent publishing company provides the names and addresses of recently arrested individuals to its customers, who include attorneys, insurance companies, drug and alcohol counselors, and driving schools. It received this information from petitioner and other California state and local law enforcement agencies until the State amended Cal. Govt. Code Ann. § 6254(f)(3) to require that a person requesting an arrestee's address declare that the request is being made for one of five prescribed purposes and that the address will not be used directly or indirectly to sell a product or service. Respondent sought declaratory and injunctive relief to hold the amendment unconstitutional under the First and Fourteenth Amendments. The Federal District Court ultimately granted respondent summary judgment, having construed respondent's claim as presenting a facial challenge to amended § 6254(f). In affirming, the Ninth Circuit concluded that the statute unconstitutionally restricts commercial speech.

Held: Respondent was not, under this Court's cases, entitled to prevail on a "facial attack" on § 6254(f)(3). The allowance of a First Amendment overbreadth challenge to a statute is an exception to the traditional rule that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New York v. Ferber, 458 U. S. 747, 767. The overbreadth doctrine is strong medicine that should be employed only as a last resort. At least for the purposes of facial invalidation, petitioner is correct that § 6254(f)(3) is not an abridgment of anyone's right to engage in speech, but simply a law regulating access to information in the government's hands. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. California law merely requires respondent to qualify under the statute if it wishes to obtain arrestees' addresses. California could decide not to give out arrestee information at all without violating the First Amendment. Cf. Houchins v. KQED, Inc., 438 U. S. 1, 14. To the extent that respondent's "facial challenge" seeks to rely on the statute's effect on parties not before the court-respondent's potential customers,


for example-its claim does not fall within the case law allowing courts to entertain facial challenges. No threat of prosecution, see Gooding v. Wilson, 405 U. S. 518, 520-521, or cut off of funds, see National Endowment for Arts v. Finley, 524 U. S. 569, hangs over their heads. The alternative bases for affirmance urged by respondent will remain open on remand if properly presented and preserved in the Ninth Circuit. Pp.37-41.

146 F.3d 1133, reversed.

REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, in which THOMAS, J., joined, post, p. 41. GINSBURG, J., filed a concurring opinion, in which O'CONNOR, SOUTER, and BREYER, JJ., joined, post, p. 42. STEVENS, J., filed a dissenting opinion, in which KENNEDY, J., joined, post, p. 44.

Thomas C. Goldstein argued the cause for petitioner.

With him on the briefs were David Boies, James K. Hahn, and Frederick N. Merkin.

Edward C. DuMont argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Acting Assistant Attorney General Ogden, Deputy Solicitor General Kneedler, Leonard Schaitman, and John S. Koppel.

Bruce J. Ennis argued the cause for respondent. On the brief were Guylyn R. Cummins and Marcelle E. Mihaila. *

* A brief of amici curiae urging reversal was filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Daniel Smirlock, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Thomas J. Miller of Iowa, Richard p. Ieyoub of Louisiana, Frankie Sue Del Papa of Nevada, Betty D. Montgomery of Ohio, Charles M. Condon of South Carolina, and Christine Q Gregoire of Washington.

Briefs of amici curiae urging affirmance were filed for the Direct Marketing Association by Robert L. Sherman; for the Individual Reference Services Group et al. by Ronald L. Plesser, James J. Halpert, and Emilio W Cividanes; for Investigative Reporters and Editors, Inc., by David

Full Text of Opinion

ChanRobles Legal Resources:

ChanRobles On-Line Bar Review

ChanRobles Internet Bar Review :

ChanRobles MCLE On-line

ChanRobles Lawnet Inc. - ChanRobles MCLE On-line :