267 F.3d 1138 (D.C. Cir. 2001)
Trans Union Corporation, Petitionerv.Federal Trade Commission, Respondent
No. 00-1141
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed October 23, 2001

[Copyrighted Material Omitted]
On Petition for Rehearing
Before:  Ginsburg, Chief Judge, Edwards and Tatel,  Circuit Judges.
Opinion for the court filed by Circuit Judge Tatel.
Tatel, Circuit Judge:


1
In its petition for rehearing, Trans  Union argues that we incorrectly applied Dun & Bradstreet,  Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60 (1985),  when we decided that target marketing lists merit only  intermediate scrutiny.  In Dun & Bradstreet, the Supreme  Court held that a consumer reporting agency's wholly false  credit report warranted only qualified constitutional protection because the report "concern[ed] no public issue."  Id. at  762.  In reaching that conclusion, the Court noted that the  report constituted "speech solely in the individual interest of  the speaker and its specific business audience," and that the  report reached only "five subscribers, who, under the terms  of the subscription agreement, could not distribute it further." Id.  The same is true here:  Trans Union's target marketing  lists interest only Trans Union and its target marketing  customers, and Trans Union sells its lists for one-time use,  prohibiting purchasers from disseminating the data.


2
To be sure, Trans Union's lists are not "wholly false," as  was the Dun & Bradstreet credit report, nor is the Fair  Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681, 1681a1681u, an "incidental state regulation," as Dun & Bradstreet  termed the state defamation law challenged in that case.  472  U.S. at 762.  Nothing in Dun & Bradstreet, however, suggests that these two factors were critical to the Court's  decision.  The important point is that here, as in Dun &  Bradstreet, the targeted speech solely interests the speaker  (Trans Union) and its "specific business audience" (its customers).  Id.


3
One additional consideration, absent in Dun & Bradstreet,  supports our conclusion that Trans Union's target marketing  lists comprise speech of purely private concern.  The lists  contain names of private individuals, not incorporated businesses like the respondent in Dun & Bradstreet.  We do not  suggest that corporations lack privacy interests, nor that all  corporate speech is somehow inherently public.  But the  particular information at issue in this case--people's names,  addresses, and financial circumstances--is less public than  the same information about companies whose articles of incorporation and financial statements are generally available for  inspection.  Cf. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 495  (1975) ("By placing the information in the public domain ... ,  the State must be presumed to have concluded that the public  interest was thereby being served.").


4
In support of its argument that the FCRA's target marketing limitation merits strict scrutiny, Trans Union cites cases  in which the Supreme Court "struck down privacy-based  restrictions on the publication of truthful information."  Pet.  at 5-6.  Unlike this case, however, most of the cited cases  involve speech on matters of public concern.  E.g., Bartnicki  v. Vopper, 121 S.Ct. 1753, 1765 (2001) (concluding that privacy  concerns raised by disclosure of contents of private cellular  telephone call "give way when balanced against the interest in  publishing matters of public importance");  Florida Star v.  B.J.F., 491 U.S. 524, 536 (1989) (holding that state may not  punish publication of " 'lawfully obtain[ed] truthful information about a matter of public significance' " (citing Smith v.  Daily Mail Publ'g Co., 443 U.S. 97, 103 (1979)));  NAACP v.  Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (concluding  that disclosure of names of civil rights boycott violators is  "expression on public issues" and rests on "highest rung of  the hierarchy of First Amendment values") (citations omitted);  Landmark Communications, Inc. v. Virginia, 435 U.S.  829, 839 (1978) (deciding that state may not punish press for  disclosing confidential judicial proceedings, in part because a  "responsible press has always been regarded as the handmaiden of effective judicial administration") (citations omitted); Cox Broad. Corp., 420 U.S. at 491-92 (noting that "[w]ith  respect to judicial proceedings ... the press serves to guarantee the fairness of trials and to bring to bear the beneficial  effects of public scrutiny upon the administration of justice"). Another cited case involves speech addressed to a large,  public audience.  Martin v. Struthers, 319 U.S. 141, 146-47  (1943) (recognizing leafleting as central to public discourse  because the "[f]reedom to distribute information to every  citizen ... is ... clearly vital to the preservation of a free  society").  Finally, two cases concern commercial speech  that--like the speech at issue here--merits only intermediate  scrutiny.  Shapero v. Kentucky Bar Ass'n, 486 U.S. 466  (1988) (lawyer advertising);  Bolger v. Youngs Drug Prods.  Corp., 463 U.S. 60 (1983) (pamphlets about contraceptives). Trans Union's reliance on these last two cases is particularly  misplaced, for they stand not for the principle that speech  rights "prevail" over privacy rights "virtually without exception," Pet. at 5, but instead for the principle that speech of  largely private concern may warrant only qualified protection.


5
Trans Union next argues that by permitting the sale of  consumer reports to facilitate guaranteed offers of credit or  insurance (prescreening), but prohibiting the sale of similar  information to facilitate offers of other goods or services  (target marketing), the FCRA makes a content-based distinction deserving strict scrutiny.  The notion that content-based  speech restrictions warrant strict scrutiny, however, derives  from cases involving fully protected speech.  See, e.g., Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987)  (striking down content-based sales tax on print media);  FCC  v. League of Women Voters, 468 U.S. 364 (1984) (striking  down content-based law that forbade noncommercial educational broadcasting stations from editorializing).  Trans  Union's target marketing lists are private speech warranting  only qualified constitutional protection.  We need not now  decide whether content-based restrictions of private speech  might sometimes merit strict scrutiny.  It is sufficient to note  that given the Supreme Court's commercial speech doctrine,  which creates a category of speech defined by content but  afforded only qualified protection, the fact that a restriction is  content-based cannot alone trigger strict scrutiny.  See, e.g.,  City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410  (1993) (applying intermediate scrutiny to determine constitutionality of Cincinnati rule banning handbill racks--but not  newspaper racks--on public property).


6
In the alternative, Trans Union argues that the FCRA's  target marketing restriction fails even intermediate scrutiny. Again, the cases the company cites are distinguishable.  In  Edenfield v. Fane, for example, the Supreme Court struck  down a state rule prohibiting certified public accountants  from personally soliciting new clients, partly because the  state failed to establish that the rule would directly promote  the state's interest in reducing fraud.  507 U.S. 761 (1993). Here, by contrast, the government cannot promote its interest (protection of personal financial data) except by regulating  speech because the speech itself (dissemination of financial  data) causes the very harm the government seeks to prevent.  Thus, the FCRA unquestionably advances the identified state  interest.  For the same reason, unlike in Greater New Orleans Broadcasting Ass'n, Inc. v. United States, where the  Court struck down a ban on casino advertising, in part  because "practical and nonspeech-related forms of regulation  ... could more directly and effectively" advance the government's interest in reducing casino gambling, 527 U.S. 173, 192  (1999), here there is no possibility that some less-restrictive  or nonspeech-related regulation could achieve the identified  state interest.  See also Rubin v. Coors Brewing Co., 514 U.S.  476 (1995) (striking down prohibition on beer labels that  identify alcohol content, in part because government interest  in preventing brewers from competing on basis of alcohol  content could be advanced through less-restrictive regulations);  44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,  507 (1996) (invalidating Rhode Island's ban on advertising of  retail prices of alcoholic beverages because "alternative forms  of regulation that would not involve any restriction on speech  ... would be more likely to achieve the State's goal of  promoting temperance").  Finally, also unlike in Greater New  Orleans Broadcasting Ass'n, where the challenged statute  was "pierced by exemptions and inconsistencies," 527 U.S. at  190, here we confront a law with just one exception:  the  permissive standard applied to information sold for prescreening.


7
Nothing in Lorillard Tobacco Co. v. Reilly, 121 S.Ct. 2404  (2001), issued after publication of our opinion, requires a  different result.  In that case, the Supreme Court struck  down Massachusetts regulations governing advertising of various tobacco products, largely because the sheer breadth of  the regulations raised questions about the fit between the  regulations' means (restricting advertising) and ends (preventing underage tobacco use).  Id. at 2425.  Lorillard noted  several ways in which the "breadth and scope of the regulations" evidenced that Massachusetts had not performed "a  careful calculation of the speech interests involved."  Id.  For  example, the regulations failed to target "advertising and  promotion practices that appeal to youth," encompassing instead all forms of communication, and even restricting a retailer's ability to "answer inquiries [from adults] about its  tobacco products."  Id. at 2426.  No similar problem exists  here.  Aiming directly at its intended target, supra at 1141, the  FCRA has neither indirect nor unintended effects on speech. The statute therefore sweeps only as broadly as necessary to  accomplish its goal:  protecting the privacy of personal financial information.  A narrower restriction would immediately  lead to increased disclosure of such information.  The  FCRA's means and ends are thus one, leaving no possibility  of a careless or imperfect "fit."


8
As for Trans Union's suggestion that Congress should have  adopted an opt-out scheme, we note that Congress considered  such a scheme, S. Rep. 104-185, at 36-38 (1995);  H.R. Rep.  102-692, at 25-27 (1992), but settled on an opt-in scheme  instead, 15 U.S.C. § 1681b(a)(2).  As enacted, therefore, the  statute permits Trans Union to sell a consumer's private  information as long as the consumer consents.  Although the  opt-in scheme may limit more Trans Union speech than would  the opt-out scheme the company prefers, intermediate scrutiny does not obligate courts to invalidate a "remedial scheme  because some alternative solution is marginally less intrusive  on a speaker's First Amendment interests."  Turner Broad.  System, Inc. v. FCC, 520 U.S. 180, 217-18 (1997) (citations  omitted).  "So long as the means chosen are not substantially  broader than necessary to achieve the government's interest,  ... [a] regulation [is] not ... invalid simply because a court  concludes that the government's interest could be adequately  served by some less-speech-restrictive alternative."  Id. at  218.


9
Trans Union also argues that the FCRA's permissive treatment of information sold for prescreening "illustrate[s] ...  [t]he [statute's] lack of narrow tailoring."  Trans Union's  Supp. Br. at 4.  On the contrary, the statute's differential  treatment of information sold for prescreening and that sold  for target marketing recognizes that individuals' privacy interests in personal information are not absolute:  Such interests are defined not only by the content of the information,  but also by the identity of the audience and the use to which  the information may be put.  For example, people who fiercely protect the privacy of personal medical information may  nevertheless disclose such information on job or medical  insurance applications.  People who protect the privacy of  their salaries may nevertheless reveal how much they make  to qualify for a mortgage.  So too, here.  Congress apparently believes that people are more willing to reveal personal  information in return for guaranteed offers of credit than for  catalogs and sales pitches.  Given the nature of intermediate  scrutiny, it can hardly be said that the First Amendment  prohibits Congress from balancing privacy interests differently in these different circumstances--particularly since the  FCRA's express purpose is to facilitate credit, not target  marketing.


10
Nor does the FCRA's permissive treatment of information  sold for prescreening demonstrate, as Trans Union argues,  that the statute is unconstitutionally underinclusive.  " 'regulation is not fatally underinclusive simply because an  alternative regulation, which would restrict more speech or  the speech of more people, could be more effective.' "  Trans  Union v. FTC, 245 F.3d 809, 819 (2001) (citing Blount v. SEC,  61 F.3d 938, 946 (D.C. Cir. 1995)).  Underinclusiveness analysis "ensure[s] that the proffered state interest actually underlies the law, [so] a rule is struck for underinclusiveness only if  it cannot fairly be said to advance any genuinely substantial  governmental interest."  Blount, 61 F.3d at 946 (citations  omitted).  To survive a First Amendment underinclusiveness  challenge, therefore, "neither a perfect nor even the best  available fit between means and ends is required."  Id.  The  FCRA satisfies this standard.


11
Finally, Trans Union argues that we erred by declining to  consider its statutory interpretation and arbitrary and capricious claims.  We explained, however, that Trans Union's  briefs fell far short of this Circuit's requirements for presenting issues for decision.  Trans Union v. FTC, 245 F.3d at  814.  To be sure, the briefs attempted statutory claims, id.  (discussing petitioner's briefs), and we had discretion to consider them.  Cf. Public Citizen Health Research Group v.  FDA, 185 F.3d 898, 903 n.* (D.C. Cir. 1999).  But because of  the utter incoherence of Trans Union's briefs, and because we discerned no substantial constitutional issue, cf. DeBartolo  Corp. v. Florida Gulf Coast Building & Constr. Trades  Council, 485 U.S. 568, 574-77 (1988) ("[W]here an otherwise  acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to  avoid such problems unless such construction is plainly contrary to the intent of Congress."), we chose not to address  those claims.  Since Trans Union's petition for rehearing  merely clarifies arguments the company's briefs had muddied,  instead of restating arguments claimed to have been overlooked or misunderstood, the petition comes too late.


12
The petition for rehearing is denied.


13
So ordered.


14
On Petition for Review of an Order of The Federal Trade Commission

ORDER
Per Curiam

15
ORDER Upon consideration of Petitioner's petition for rehearing  filed May 25, 2001, and of the opposition thereto, it is


16
ORDERED that the petition be denied, as is more fully set  forth in the opinion of the court filed herein this date.

