United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 23, 2001
No. 00-1141
Trans Union Corporation,
Petitioner
v.
Federal Trade Commission,
Respondent
On Petition for Rehearing
---------
Before: Ginsburg, Chief Judge, Edwards and Tatel,
Circuit Judges.
Opinion for the court filed by Circuit Judge Tatel.
Tatel, Circuit Judge: In its petition for rehearing, Trans
Union argues that we incorrectly applied Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985),
when we decided that target marketing lists merit only
intermediate scrutiny. In Dun & Bradstreet, the Supreme
Court held that a consumer reporting agency's wholly false
credit report warranted only qualified constitutional protec-
tion because the report "concern[ed] no public issue." Id. at
762. In reaching that conclusion, the Court noted that the
report constituted "speech solely in the individual interest of
the speaker and its specific business audience," and that the
report reached only "five subscribers, who, under the terms
of the subscription agreement, could not distribute it further."
Id. The same is true here: Trans Union's target marketing
lists interest only Trans Union and its target marketing
customers, and Trans Union sells its lists for one-time use,
prohibiting purchasers from disseminating the data.
To be sure, Trans Union's lists are not "wholly false," as
was the Dun & Bradstreet credit report, nor is the Fair
Credit Reporting Act ("FCRA"), 15 U.S.C. ss 1681, 1681a-
1681u, an "incidental state regulation," as Dun & Bradstreet
termed the state defamation law challenged in that case. 472
U.S. at 762. Nothing in Dun & Bradstreet, however, sug-
gests that these two factors were critical to the Court's
decision. The important point is that here, as in Dun &
Bradstreet, the targeted speech solely interests the speaker
(Trans Union) and its "specific business audience" (its cus-
tomers). Id.
One additional consideration, absent in Dun & Bradstreet,
supports our conclusion that Trans Union's target marketing
lists comprise speech of purely private concern. The lists
contain names of private individuals, not incorporated busi-
nesses like the respondent in Dun & Bradstreet. We do not
suggest that corporations lack privacy interests, nor that all
corporate speech is somehow inherently public. But the
particular information at issue in this case--people's names,
addresses, and financial circumstances--is less public than
the same information about companies whose articles of incor-
poration and financial statements are generally available for
inspection. Cf. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495
(1975) ("By placing the information in the public domain ... ,
the State must be presumed to have concluded that the public
interest was thereby being served.").
In support of its argument that the FCRA's target market-
ing limitation merits strict scrutiny, Trans Union cites cases
in which the Supreme Court "struck down privacy-based
restrictions on the publication of truthful information." Pet.
at 5-6. Unlike this case, however, most of the cited cases
involve speech on matters of public concern. E.g., Bartnicki
v. Vopper, 121 S.Ct. 1753, 1765 (2001) (concluding that privacy
concerns raised by disclosure of contents of private cellular
telephone call "give way when balanced against the interest in
publishing matters of public importance"); Florida Star v.
B.J.F., 491 U.S. 524, 536 (1989) (holding that state may not
punish publication of " 'lawfully obtain[ed] truthful informa-
tion about a matter of public significance' " (citing Smith v.
Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979))); NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (concluding
that disclosure of names of civil rights boycott violators is
"expression on public issues" and rests on "highest rung of
the hierarchy of First Amendment values") (citations omit-
ted); Landmark Communications, Inc. v. Virginia, 435 U.S.
829, 839 (1978) (deciding that state may not punish press for
disclosing confidential judicial proceedings, in part because a
"responsible press has always been regarded as the handmai-
den of effective judicial administration") (citations omitted);
Cox Broad. Corp., 420 U.S. at 491-92 (noting that "[w]ith
respect to judicial proceedings ... the press serves to guar-
antee the fairness of trials and to bring to bear the beneficial
effects of public scrutiny upon the administration of justice").
Another cited case involves speech addressed to a large,
public audience. Martin v. Struthers, 319 U.S. 141, 146-47
(1943) (recognizing leafleting as central to public discourse
because the "[f]reedom to distribute information to every
citizen ... is ... clearly vital to the preservation of a free
society"). Finally, two cases concern commercial speech
that--like the speech at issue here--merits only intermediate
scrutiny. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466
(1988) (lawyer advertising); Bolger v. Youngs Drug Prods.
Corp., 463 U.S. 60 (1983) (pamphlets about contraceptives).
Trans Union's reliance on these last two cases is particularly
misplaced, for they stand not for the principle that speech
rights "prevail" over privacy rights "virtually without excep-
tion," Pet. at 5, but instead for the principle that speech of
largely private concern may warrant only qualified protection.
Trans Union next argues that by permitting the sale of
consumer reports to facilitate guaranteed offers of credit or
insurance (prescreening), but prohibiting the sale of similar
information to facilitate offers of other goods or services
(target marketing), the FCRA makes a content-based distinc-
tion deserving strict scrutiny. The notion that content-based
speech restrictions warrant strict scrutiny, however, derives
from cases involving fully protected speech. See, e.g., Arkan-
sas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987)
(striking down content-based sales tax on print media); FCC
v. League of Women Voters, 468 U.S. 364 (1984) (striking
down content-based law that forbade noncommercial edu-
cational broadcasting stations from editorializing). Trans
Union's target marketing lists are private speech warranting
only qualified constitutional protection. We need not now
decide whether content-based restrictions of private speech
might sometimes merit strict scrutiny. It is sufficient to note
that given the Supreme Court's commercial speech doctrine,
which creates a category of speech defined by content but
afforded only qualified protection, the fact that a restriction is
content-based cannot alone trigger strict scrutiny. See, e.g.,
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993) (applying intermediate scrutiny to determine constitu-
tionality of Cincinnati rule banning handbill racks--but not
newspaper racks--on public property).
In the alternative, Trans Union argues that the FCRA's
target marketing restriction fails even intermediate scrutiny.
Again, the cases the company cites are distinguishable. In
Edenfield v. Fane, for example, the Supreme Court struck
down a state rule prohibiting certified public accountants
from personally soliciting new clients, partly because the
state failed to establish that the rule would directly promote
the state's interest in reducing fraud. 507 U.S. 761 (1993).
Here, by contrast, the government cannot promote its inter-
est (protection of personal financial data) except by regulating
speech because the speech itself (dissemination of financial
data) causes the very harm the government seeks to prevent.
Thus, the FCRA unquestionably advances the identified state
interest. For the same reason, unlike in Greater New Or-
leans Broadcasting Ass'n, Inc. v. United States, where the
Court struck down a ban on casino advertising, in part
because "practical and nonspeech-related forms of regulation
... could more directly and effectively" advance the govern-
ment's interest in reducing casino gambling, 527 U.S. 173, 192
(1999), here there is no possibility that some less-restrictive
or nonspeech-related regulation could achieve the identified
state interest. See also Rubin v. Coors Brewing Co., 514 U.S.
476 (1995) (striking down prohibition on beer labels that
identify alcohol content, in part because government interest
in preventing brewers from competing on basis of alcohol
content could be advanced through less-restrictive regula-
tions); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
507 (1996) (invalidating Rhode Island's ban on advertising of
retail prices of alcoholic beverages because "alternative forms
of regulation that would not involve any restriction on speech
... would be more likely to achieve the State's goal of
promoting temperance"). Finally, also unlike in Greater New
Orleans Broadcasting Ass'n, where the challenged statute
was "pierced by exemptions and inconsistencies," 527 U.S. at
190, here we confront a law with just one exception: the
permissive standard applied to information sold for pres-
creening.
Nothing in Lorillard Tobacco Co. v. Reilly, 121 S.Ct. 2404
(2001), issued after publication of our opinion, requires a
different result. In that case, the Supreme Court struck
down Massachusetts regulations governing advertising of var-
ious tobacco products, largely because the sheer breadth of
the regulations raised questions about the fit between the
regulations' means (restricting advertising) and ends (pre-
venting underage tobacco use). Id. at 2425. Lorillard noted
several ways in which the "breadth and scope of the regula-
tions" evidenced that Massachusetts had not performed "a
careful calculation of the speech interests involved." Id. For
example, the regulations failed to target "advertising and
promotion practices that appeal to youth," encompassing in-
stead all forms of communication, and even restricting a
retailer's ability to "answer inquiries [from adults] about its
tobacco products." Id. at 2426. No similar problem exists
here. Aiming directly at its intended target, supra at 4, the
FCRA has neither indirect nor unintended effects on speech.
The statute therefore sweeps only as broadly as necessary to
accomplish its goal: protecting the privacy of personal finan-
cial information. A narrower restriction would immediately
lead to increased disclosure of such information. The
FCRA's means and ends are thus one, leaving no possibility
of a careless or imperfect "fit."
As for Trans Union's suggestion that Congress should have
adopted an opt-out scheme, we note that Congress considered
such a scheme, S. Rep. 104-185, at 36-38 (1995); H.R. Rep.
102-692, at 25-27 (1992), but settled on an opt-in scheme
instead, 15 U.S.C. s 1681b(a)(2). As enacted, therefore, the
statute permits Trans Union to sell a consumer's private
information as long as the consumer consents. Although the
opt-in scheme may limit more Trans Union speech than would
the opt-out scheme the company prefers, intermediate scruti-
ny does not obligate courts to invalidate a "remedial scheme
because some alternative solution is marginally less intrusive
on a speaker's First Amendment interests." Turner Broad.
System, Inc. v. FCC, 520 U.S. 180, 217-18 (1997) (citations
omitted). "So long as the means chosen are not substantially
broader than necessary to achieve the government's interest,
... [a] regulation [is] not ... invalid simply because a court
concludes that the government's interest could be adequately
served by some less-speech-restrictive alternative." Id. at
218.
Trans Union also argues that the FCRA's permissive treat-
ment of information sold for prescreening "illustrate[s] ...
[t]he [statute's] lack of narrow tailoring." Trans Union's
Supp. Br. at 4. On the contrary, the statute's differential
treatment of information sold for prescreening and that sold
for target marketing recognizes that individuals' privacy in-
terests in personal information are not absolute: Such inter-
ests are defined not only by the content of the information,
but also by the identity of the audience and the use to which
the information may be put. For example, people who fierce-
ly protect the privacy of personal medical information may
nevertheless disclose such information on job or medical
insurance applications. People who protect the privacy of
their salaries may nevertheless reveal how much they make
to qualify for a mortgage. So too, here. Congress apparent-
ly believes that people are more willing to reveal personal
information in return for guaranteed offers of credit than for
catalogs and sales pitches. Given the nature of intermediate
scrutiny, it can hardly be said that the First Amendment
prohibits Congress from balancing privacy interests different-
ly in these different circumstances--particularly since the
FCRA's express purpose is to facilitate credit, not target
marketing.
Nor does the FCRA's permissive treatment of information
sold for prescreening demonstrate, as Trans Union argues,
that the statute is unconstitutionally underinclusive. " '[A]
regulation is not fatally underinclusive simply because an
alternative regulation, which would restrict more speech or
the speech of more people, could be more effective.' " Trans
Union v. FTC, 245 F.3d 809, 819 (2001) (citing Blount v. SEC,
61 F.3d 938, 946 (D.C. Cir. 1995)). Underinclusiveness analy-
sis "ensure[s] that the proffered state interest actually under-
lies the law, [so] a rule is struck for underinclusiveness only if
it cannot fairly be said to advance any genuinely substantial
governmental interest." Blount, 61 F.3d at 946 (citations
omitted). To survive a First Amendment underinclusiveness
challenge, therefore, "neither a perfect nor even the best
available fit between means and ends is required." Id. The
FCRA satisfies this standard.
Finally, Trans Union argues that we erred by declining to
consider its statutory interpretation and arbitrary and capri-
cious claims. We explained, however, that Trans Union's
briefs fell far short of this Circuit's requirements for present-
ing issues for decision. Trans Union v. FTC, 245 F.3d at
814. To be sure, the briefs attempted statutory claims, id.
(discussing petitioner's briefs), and we had discretion to con-
sider them. Cf. Public Citizen Health Research Group v.
FDA, 185 F.3d 898, 903 n.* (D.C. Cir. 1999). But because of
the utter incoherence of Trans Union's briefs, and because we
discerned no substantial constitutional issue, cf. DeBartolo
Corp. v. Florida Gulf Coast Building & Constr. Trades
Council, 485 U.S. 568, 574-77 (1988) ("[W]here an otherwise
acceptable construction of a statute would raise serious con-
stitutional problems, the Court will construe the statute to
avoid such problems unless such construction is plainly con-
trary to the intent of Congress."), we chose not to address
those claims. Since Trans Union's petition for rehearing
merely clarifies arguments the company's briefs had muddied,
instead of restating arguments claimed to have been over-
looked or misunderstood, the petition comes too late.
The petition for rehearing is denied.
So ordered.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
---------
No. 00-1141
Filed On: October 23, 2001
Trans Union Corporation,
Petitioner
v.
Federal Trade Commission,
Respondent
---------
On Petition for Review of an Order of the
Federal Trade Commission
---------
Before: Ginsburg, Chief Judge, Edwards and Tatel,
Circuit Judges.
ORDER
Upon consideration of Petitioner's petition for rehearing
filed May 25, 2001, and of the opposition thereto, it is
ORDERED that the petition be denied, as is more fully set
forth in the opinion of the court filed herein this date.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk