46
Stevens, J., dissenting
Justice Ginsburg points out, if the State identified the dis-favored persons based on their viewpoint, or political affiliation, for example, the discrimination would clearly be invalid. See ante, at 43 (concurring opinion).
What the State did here, in my opinion, is comparable to that obviously unconstitutional discrimination. In this case, the denial of access is based on the fact that respondent plans to publish the information to others who, in turn, intend to use it for a commercial speech purpose that the State finds objectionable. Respondent's proposed publication of the information is indisputably lawful—petitioner concedes that if respondent independently acquires the data, the First Amendment protects its right to communicate it to others. Brief for Petitioner 27; see also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 496 (1975). Similarly, the First Amendment supports the third parties' use of it for commercial speech purposes. See Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472 (1988). Thus, because the State's discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, I think it must assume the burden of justifying its conduct.
The only justification advanced by the State is an asserted interest in protecting the privacy of victims and arrestees. Although that interest would explain a total ban on access, or a statute narrowly limiting access, it is insufficient when the data can be published in the news media and obtained by private investigators or others who meet the Amend-ment's vague criteria. This Amendment plainly suffers from the same "overall irrationality" that undermined the statutes at issue in Rubin v. Coors Brewing Co., 514 U. S. 476, 488 (1995), and Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173 (1999). By allowing such widespread access to the information, the State has eviscerated any rational basis for believing that the Amendment will truly protect the privacy of these persons. See Cox Broadcasting Corp., 420 U. S., at 493-495.
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