1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0066P (6th Cir.)File Name: 00a0066p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________STEPHENAMELKIN, BroadwayChiropractic; DR.BRIANCHRISTOPHERFEE;STUARTLYON;NICOLASBAKER;DAVIDKAPLAN;JAMESW.CHAMBERS;SIDNEYHANISH;RHODADANIELS;THOMASH.WATSON;KENNETHW.WALL;JAMESBOGARD, doingbusiness as Bogard &Associates,Plaintiffs-Appellees,CITY OFLOUISVILLE, Divisionof Police,Plaintiff,v.ANNMCCLURE, DocumentCustodian; GARYROSE,Commissioner of Departmentof State Police; BENCHANDLER, Attorney General,Defendants-Appellants,;>No. 96-59422Amelkin, et al. v. McClure, et al.No. 96-5942JUSTICECABINET, Departmentof State Police,Plaintiff/CounterDefendantAppellant,JEFFERSONCOUNTY,KENTUCKY,Defendant.1On Remand from the United States Supreme Court.Nos. 94-00360, 95-00022, 95-00352—Charles M. Allen,District Judge.Argued: April 24, 1998Decided and Filed: February 24, 2000Before: SUHRHEINRICH, SILER, and GILMAN, CircuitJudges._________________COUNSELARGUED:William B. Pettus, OFFICE OF THEATTORNEY GENERAL, CIVIL & ENVIRONMENTALLAW DIVISION, Frankfort, Kentucky, Lucy B. Richardson,COMMONWEALTH OF KENTUCKY JUSTICECABINET, GENERAL COUNSEL, Frankfort, Kentucky, forAppellants. Donald L. Cox, LYNCH, COX, GILMAN &MAHAN, Louisville, Kentucky, for Appellees.ON BRIEF:William B. Pettus, OFFICE OF THE ATTORNEYGENERAL, CIVIL & ENVIRONMENTAL LAWDIVISION, Frankfort, Kentucky, Lucy B. Richardson,COMMONWEALTH OF KENTUCKY JUSTICECABINET, GENERAL COUNSEL, Frankfort, Kentucky, forAppellants. Mary J. Lintner, LYNCH, COX, GILMAN &MAHAN, Louisville, Kentucky, for Appellees. Laurence J.6Amelkin, et al. v. McClure, et al.No. 96-5942§ 189.635 and the California statute that the Supreme Courtconsidered inUnited Reporting. Because the district courtonly addressed the plaintiffs’ facial challenge, as indicated bythe fact that it permanently enjoined the state of Kentuckyfrom enforcing KRS § 189.635,see Amelkin v. McClure, 936F.Supp. 428 (W.D. Ky. 1996), we must reverse and remandthe case for the district court to consider the plaintiffs’ asapplied challenge.B. The Challenge to KRS § 61.874The district court also enjoined the enforcement of KRS§ 61.874, the statute that allows the state custodian ofnonexempt public documents to charge commercial users forproducing copies of police accident reports. It did so withoutmaking specific findings regarding the four factors that areused in determining whether a preliminary injunction shouldbe granted.See Washington v. Reno, 35 F.3d 1093, 1099 (6thCir. 1994). Without the benefit of such factual findings, it isimpossible for us to judge the validity of the plaintiffs’arguments. Accordingly, our prior opinion vacated andremanded the case back to the district court to make findingsof fact and conclusions of law as to how KRS § 61.874 hasbeen applied by the state agency.See Amelkin, 168 F.3d at901-02. This portion of our prior opinion was not modifiedbyUnited Reporting, and continues to be the ruling of thiscourt.III. CONCLUSIONFor the reasons set forth above, the district court’s decisionregarding KRS § 189.635 isREVERSEDandREMANDEDfor consideration of the plaintiffs’ as-applied challenge, andits decision regarding KRS § 61.874 isVACATEDandREMANDED, all for further proceedings consistent with thisopinion.No. 96-5942Amelkin, et al. v. McClure, et al.3Zielke, PEDLEY, ZIELKE, GORDINIER, OLT & PENCE,Louisville, Kentucky, for Amicus Curiae._________________OPINION_________________RONALD LEE GILMAN, Circuit Judge. OnDecember 13, 1999, the Supreme Court vacated our February17, 1999 decision in the above-styled matter,see Amelkin v.McClure, 168 F.3d 893 (6th Cir. 1999),and remanded thecase for further consideration in light ofLos Angeles PoliceDep’t v. United Reporting Publishing Corp., 528 U.S. __, 120S.Ct. 483 (1999). After taking into account the majority’sholding inUnited Reporting, weREVERSEthe districtcourt’s decision to enjoin the enforcement of KentuckyRevised Statute § 189.635(5)-(6), which was based upon theplaintiffs’ “facial challenge” to the statute restricting accessto police accident reports. We furtherREMANDthe case forconsideration of the plaintiffs’ “as-applied” challenge to thestatute. The remainder of our prior decision was not affectedby the Supreme Court’s action and continues to be the rulingof this court.I.FACTUALSUMMARYA number of attorneys and chiropractors, as well as theproposed publisher of a commercial newspaper to be calledThe Accidental Journal, filed suit to challenge two Kentuckystatutes, one restricting access to police accident reports andthe other allowing the state custodian of nonexempt publicdocuments to charge commercial users “a reasonable fee” forproducing copies of the reports. The district courtpermanently enjoined the enforcement of both statutes,finding that they violated the plaintiffs’ First Amendmentright to freedom of expression. On appeal, we affirmed thedistrict court’s injunction regarding KRS § 189.635(restricting access to police accident reports), but vacated andremanded its decision regarding KRS § 61.874 (allowing fees4Amelkin, et al. v. McClure, et al.No. 96-5942to be charged to commercial users for copies of the reports).See Amelkin, 168 F.3d at 901-02.II. ANALYSISA. The Facial Challenge to KRS § 189.635The first issue that must be addressed is whether theplaintiffs can bring a facial challenge to KRS § 189.635, thestatute that regulates access to police accident reports inKentucky, in light of the Supreme Court’s recent decision inUnited Reporting. InUnited Reporting, a private publishingcompany in California had been providing the names andaddresses of recently arrested individuals to its customers,who included attorneys, insurance companies, drug andalcohol counselors, and driving schools. It received thenames and addresses from local law enforcement agenciesuntil the state of California amended Cal. Gov’t Code§ 6254(f)(3) to require that a person requesting an arrestee’sname and address declare that the request is being made forone of five prescribed purposes, and that the name andaddress will not be used directly or indirectly to sell a productor service. United Reporting sought declaratory andinjunctive relief, and requested that the amended section bedeclared unconstitutional under the First and FourteenthAmendments.The district court construed United Reporting’s claim as afacial challenge to § 6254(f)(3), granted United Reporting’smotion for summary judgment, and enjoined the enforcementof the statute. Upon appeal, the Ninth Circuit affirmed thedistrict court’s judgment, concluding that the statute wasfacially invalid. The Supreme Court, however, reversed theNinth Circuit, and held that § 6254(f)(3) did not warrant thedrastic measure of declaring facial invalidity.See UnitedReporting, 120 S.Ct. at 489.An overbreadth facial attack is made when a challengerargues that an otherwise valid law might be appliedunconstitutionally in a specific context.See generallyUnitedReporting, 120 S.Ct. at 488-89. If a facial challenge isNo. 96-5942Amelkin, et al. v. McClure, et al.5upheld, then the state cannot enforce the statute againstanyone.SeeBoard of Trustees v. Fox, 492 U.S. 469, 483(1989) (“Where an overbreadth attack is successful, thestatute is obviously invalid in all of its applications, sinceevery person to whom it is applied can defend on the basis ofthe same overbreadth.”). On the other hand, an “as-applied”challenge consists of a challenge to the statute’s applicationonly to the party before the court.See generally City ofLakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 758-59 (1988) (noting that as-applied challenges are reviewed ona case-by-case basis). If it is successful, the statute may notbe applied to the challenger, but is otherwise enforceable.Id.Overbreadth facial challenges are normally rejected because“a person to whom a statute may constitutionally be appliedmay not challenge that statute on the ground that it mayconceivably be applied unconstitutionally to others insituations not before the Court.”New York v. Ferber, 458U.S. 747, 767 (1982). As explained by the Supreme Court inUnited States v. Salerno, 481 U.S. 739, 745 (1987), “[a] facialchallenge to a legislative Act is, of course, the most difficultchallenge to mount successfully, since the challenger mustestablish that no set of circumstances exists under which theAct would be valid.”One of the few exceptions to the presumption against facialchallenges is if a statute proscribes speech and threatensviolators with prosecution.See Gooding v. Wilson, 405 U.S.518, 520-21 (1972). InUnited Reporting, the Supreme Courtheld that a facial challenge was not warranted because§ 6254(f)(3) neither imposed a threat of criminal prosecutionnor “chilled” expressive speech—it simply restricted accessto government information.Id. at 489-90.Based on the reasoning set out inUnited Reporting, KRS§ 189.635 is similarly not subject to a facial challengebecause it does not carry the threat of prosecution forviolating the statute and it does not restrict expressive speech,but simply regulates access to the state’s accident reports. Inthis regard we find no material differences between KRS