B. Facial Challenges vs. As-Applied Challenges

120 S. Ct. 483.

Supreme Court of the United States.

LOS ANGELES POLICE DEPARTMENT, Petitioner

v.

UNITED REPORTING PUBLISHING CORPORATION.

No. 98–678.

Argued Oct. 13, 1999.

Decided Dec. 7, 1999.

Chief Justice REHNQUIST delivered the opinion of the Court.

California Govt. Code Ann. § 6254(f)(3) places two conditions on public access to arrestees’ addresses-that the person requesting an address declare that the request is being made for one of five prescribed purposes, and that the requester also declare that the address will not be used directly or indirectly to sell a product or service.

The District Court permanently enjoined enforcement of the statute, and the Court of Appeals affirmed, holding that the statute was facially invalid because it unduly burdens commercial speech. We hold that the statutory section in question was not subject to a “facial” challenge.

Petitioner, the Los Angeles Police Department, maintains records relating to arrestees. Respondent, United Reporting Publishing Corporation, is a private publishing service that provides the names and addresses of recently arrested individuals to its customers, who include attorneys, insurance companies, drug and alcohol counselors, and driving schools.

Before July 1, 1996, respondent received arrestees’ names and addresses under the old version of § 6254, which generally required state and local law enforcement agencies to make public the name, address, and occupation of every individual arrested by the agency. Effective July 1, 1996, the state legislature amended § 6254(f) to limit the public’s access to arrestees’ and victims’ current addresses. The amended statute provides that state and local law enforcement agencies shall make public:

“[T]he current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty 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.”

Sections 6254(f)(1) and (2) require that state and local law enforcement agencies make public, inter alia, the name, occupation, and physical description, including date of birth, of every individual arrested by the agency, as well as the circumstances of the arrest. Thus, amended § 6254(f) limits access only to the arrestees’ addresses.

Before the effective date of the amendment, respondent sought declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 to hold the amendment unconstitutional under the First and Fourteenth Amendments to the United States Constitution. On the effective date of the statute, petitioner and other law enforcement agencies denied respondent access to the address information because, according to respondent, “[respondent’s] employees could not sign section 6254(f)(3) declarations.” Respondent did not allege, and nothing in the record before this Court indicates, that it ever “declar[ed] under penalty of perjury” that it was requesting information for one of the prescribed purposes and that it would not use the address information to “directly or indirectly . . . sell a product or service,” as would have been required by the statute. See § 6254(f)(3).

Respondent then amended its complaint and sought a temporary restraining order. The District Court issued a temporary restraining order, and, a few days later, issued a preliminary injunction. Respondent then filed a motion for summary judgment, which was granted. In granting the motion, the District Court construed respondent’s claim as presenting a facial challenge to amended § 6254(f). The court held that the statute was facially invalid under the First Amendment.

The Court of Appeals affirmed the District Court’s facial invalidation. The court concluded that the statute restricted commercial speech, and, as such, was entitled to “a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.” The court applied the test set out in Central Hudson and found that the asserted governmental interest in protecting arrestees’ privacy was substantial. But, the court held that “the numerous exceptions to § 6254(f)(3) for journalistic, scholarly, political, governmental, and investigative purposes render the statute unconstitutional under the First Amendment.” The court noted that “[h]aving one’s name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance abuse counselor, or driving school eager to help one overcome his present difficulties (for a fee, naturally),” and thus that the exceptions “undermine and counteract” the asserted governmental interest in preserving arrestees’ privacy. Thus, the Court of Appeals affirmed the District Court’s grant of summary judgment in favor of respondent and upheld the injunction against enforcement of § 6254(f)(3). We granted certiorari. We hold that respondent was not, under our cases, entitled to prevail on a “facial attack” on § 6254(f)(3).

Respondent’s primary argument in the District Court and the Court of Appeals was that § 6254(f)(3) was invalid on its face, and respondent maintains that position here. But we believe that our cases hold otherwise.

The traditional rule is 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 (1982). Prototypical exceptions to this traditional rule are First Amendment challenges to statutes based on First Amendment overbreadth. At least when statutes regulate or proscribe speech, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Gooding v. Wilson, 405 U.S. 518 (1972). This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their right for fear of criminal sanctions provided by a statute susceptible of application to protected expression. In Gooding, for example, the defendant was one of a group that picketed an Army headquarters building carrying signs opposing the Vietnam war. A confrontation with the police occurred, as a result of which Gooding was charged with “using opprobrious words and abusive language . . . tending to cause a breach of the peace.”

This is not to say that the threat of criminal prosecution is a necessary condition for the entertainment of a facial challenge. We have permitted such attacks on statutes in appropriate circumstances where no such threat was present. See, e.g., National Endowment for Arts v. Finley (entertaining a facial challenge to a public funding scheme). But the allowance of a facial 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. This general rule reflects two “cardinal principles” of our constitutional order: the personal nature of constitutional rights and the prudential limitations on constitutional adjudication. By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule, we face ‘flesh and blood’ legal problems with data relevant and adequate to an informed judgment.

Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually employed. Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is ‘strong medicine’ and have employed it with hesitation, and then only as a last resort. Facial overbreadth adjudication is an exception to our traditional rules of practice and its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “pure speech” toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws.

The Court of Appeals held that § 6254(f)(3) was facially invalid under the First Amendment. Petitioner contends that the section in question is not an abridgment of anyone’s right to engage in speech, be it commercial or otherwise, but simply a law regulating access to information in the hands of the police department.

We believe that, at least for purposes of facial invalidation, petitioner’s view is correct. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. The California statute in question merely requires that if respondent wishes to obtain the addresses of arrestees it must qualify under the statute to do so. Respondent did not attempt to qualify and was therefore denied access to the addresses. For purposes of assessing the propriety of a facial invalidation, what we have before us is nothing more than a governmental denial of access to information in its possession. California could decide not to give out arrestee information at all without violating the First Amendment.

To the extent that respondent’s “facial challenge” seeks to rely on the effect of the statute on parties not before the Court -- its potential customers, for example -- its claim does not fit within the case law allowing courts to entertain facial challenges. No threat of prosecution, for example, see Gooding, or cutoff of funds, see NEA, hangs over their heads. They may seek access under the statute on their own just as respondent did, without incurring any burden other than the prospect that their request will be denied. Resort to a facial challenge here is not warranted because there is no possibility that protected speech will be muted.

The Court of Appeals was therefore wrong to facially invalidate § 6254(f)(3). The judgment of the Court of Appeals is accordingly reversed.

Notes and Questions:

1. A person making an as-applied First Amendment challenge is essentially saying “Applying this law to my speech is unconstitutional because the specific speech that I engaged in is protected by the First Amendment.” A person making a First Amendment facial challenge is essentially saying “Even assuming arguendo that the specific speech I engaged in can be punished without violating the First Amendment, this law is unconstitutional because it applies to too much other speech that is protected (overbreadth) or because the terms of the statute are so vague that they are not understandable or are inherently subject a discriminatory application (vagueness).” Hence, in the First Amendment context, the concept of facial challenges generally overlaps with overbreadth or vagueness doctrine. Indeed, as noted in United Reporting, the Court has characterized overbreadth doctrine as an exception to the presumption 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. Prototypical exceptions to this traditional rule are First Amendment challenges to statutes based on First Amendment overbreadth.”

There are two primary reasons why facial overbreadth or vagueness challenges are permitted, even by persons whose own speech can be punished without violating the First Amendment. First is concern about the potential chilling effect of overbroad or vague laws on other persons whose speech is protected: “[P]ersons whose expression is constitutionally protected may well refrain from exercising their right[s] [at all] for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” United Reporting, supra. Second is concern that overbroad or vague laws are highly susceptible to being used to engage in content-, viewpoint-, or speaker-based censorship or discrimination: “Standards of permissible statutory vagueness are [especially] strict in the area of free expression. The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.” NAACP v. Button (presented below in the unit on Vagueness and Overbreadth).