Alert May 15, 2012

Agencies File Joint Memorandum Arguing Section 1681c of FCRA Does Not Violate First Amendment

The CFPB, FTC and DOJ intervened in a lawsuit alleging that Section 1681c of the Fair Credit Reporting Act, which prohibits consumer reporting agencies from disclosing arrest records and other adverse information that is older than seven years, violates the commercial speech doctrine under the First Amendment. The agencies argued that plaintiff’s reliance on Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) was misplaced because Sorrell does not require strict scrutiny for commercial speech. Rather, according to the agencies, the court should apply the standard articulated in Central Hudson Gas & Electric Corp., v. Public Service Commission, 447 U.S. 557 (1980), which provides for both intermediate and strict scrutiny. Applying Central Hudson, the agencies concluded that Section 1681c satisfies the intermediate scrutiny test because it protects consumer privacy, long held to be a substantial government interest, and because Section 1681c is no more extensive than necessary to serve that interest. Click here for the press release and here for the memorandum.