44
Stevens, J., dissenting
proscribed criterion. But it does suggest that society's interest in the free flow of information might argue for upholding laws like the one at issue in this case rather than imposing an all-or-nothing regime under which "nothing" could be a State's easiest response.
Justice Stevens, with whom Justice Kennedy joins, dissenting.
The majority's characterization of this case as an improper facial challenge is misguided. Even a brief look at the complaint reveals that respondent unequivocally advanced both a facial and an "as applied" challenge to the constitutionality of California Government Code § 6254(f)(3) (hereinafter Amendment). In each of the six counts of its complaint, respondent explicitly challenged the Amendment on its face "and as applied." Complaint ¶¶ 29, 32, 35, 38, 41, 43. Respondent also alleged that it "will be and has already been injured in a serious way by the Amendment"; specifically, it claimed that it "has lost prospective clients and sales, and will ultimately be put out of business." Id., ¶ 23. Finally, respondent has maintained before us that it continues to challenge the Amendment "on its face and as applied." Brief for Respondent 15.1 It is, therefore, perfectly clear
1 The majority suggests that respondent was denied the information simply because it "did not attempt to qualify" under the statute. Ante, at 40. This suggestion assumes that respondent's publication might qualify as "journalistic" even though it serves primarily as a mere conduit of data to prospective commercial users. The Amendment provides, however, that even a "journalistic" publication must sign, under risk of criminal prosecution for perjury, an affidavit stating that the information will "not be used directly or indirectly to sell a product or service to any individual or group of individuals." Cal. Govt. Code Ann. § 6254(f)(3) (West Supp. 1999). Not coincidentally, that is precisely how respondent uses the information. Accordingly, not only is the belief that respondent would have qualified under the statute unrealistic, but the notion that respondent must put itself at risk of 2-to-4 years' imprisonment in order to raise a constitutional challenge to a state statute is alarming, to say the least.
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