Protecting Privacy on the Front Page: Why Restrictions on Commercial Use of Law Enforcement Records Violate the First Amendment
An individual is involved in an automobile accident and is arrested for driving under the influence. A few days after being released, he receives several letters in the mail. One is from a chiropractor offering services to treat his injuries. Another is from an alcohol abuse treatment center. Yet another is from an attorney who defends traffic offenses. Each of the solicitors obtained the individual's name and address from publicly available records concerning the incident. The letters are truthful and not misleading, but utilize publicly available information for purely commercial purposes at the expense of the individual's privacy.
Several states have passed laws' prohibiting the commercial use of public information in law enforcement records. State governments have offered a number of reasons for such laws. The primary reasons given include protecting the privacy interests of individuals and improving public confidence in the legal system by discouraging solicitation abuse. These statutes, however, simultaneously create exceptions for the media and the general public.
To illustrate this tension, imagine that the individual mentioned above opened the morning paper to find all of the details of the accident and arrest on the front page. The statutes do nothing to prevent other, potentially greater invasions of individual privacy. In addition, the statutes restrict the non-deceptive commercial speech of businesses that wish to provide legitimate services to recent arrestees and accident victims. Thus, restrictions on commercial use of public information in law enforcement records implicate the tension between privacy concerns, solicitors' commercial speech rights, and public perceptions of solicitation abuse.