42
Ginsburg, J., concurring
tion, nor as offering as-applied invalidation as an alternative ground for affirmance.
I do not agree with Justice Ginsburg that what renders this statute immune from a facial challenge necessarily renders it immune from an as-applied challenge as well. A law that is formally merely a restriction upon access to information subjects no speaker to the risk of prosecution, and hence there is no need to protect such speakers by allowing someone else to raise their challenges to the law. But it is an entirely different question whether a restriction upon access that allows access to the press (which in effect makes the information part of the public domain), but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech rather than upon access to government information. That question—and the subsequent question whether, if it is a restriction upon speech, its application to this respondent is justified—is not addressed in the Court's opinion.
Justice Ginsburg, with whom Justice O'Connor, Justice Souter, and Justice Breyer join, concurring.
I join the Court's opinion, which recognizes that California Government Code § 6254(f)(3) is properly analyzed as a restriction on access to government information, not as a restriction on protected speech. See ante, at 40. That is sufficient reason to reverse the Ninth Circuit's judgment.
As the Court observes, see ibid., the statute at issue does not restrict speakers from conveying information they already possess. Anyone who comes upon arrestee address information in the public domain is free to use that information as she sees fit. It is true, as Justice Scalia suggests, ante this page (concurring opinion), that the information could be provided to and published by journalists, and § 6254(f)(3) would indeed be a speech restriction if it then prohibited people from using that published information to speak to or about arrestees. But the statute contains no
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