Can the government censor you for tweeting happy birthday to a judge? The Senate Judiciary Committee recently voted 21-0 to advance a bill that would allow just that. If enacted, every American could face mandatory removal orders for posting basic facts about federal judges online, including birth dates, spousal jobs, and colleges their children attended. Because the bill stifles access to relevant information about public officials and arbitrarily limits its restrictions to the Internet but not other media, it would violate the First Amendment.
The impetus for the bill was a tragic event: the murder last year of Daniel Anderl, son of judge Esther Salas, at their home. Here is how the Daniel Anderl law on judicial security and privacy would work. If you post “covered information” about a federal judge online, that judge (or a designated federal official) may send you a written request to opt out. If you don’t comply within 72 hours, the judge can sue you. If you lose, you must remove the information and pay legal fees and the judge’s court costs.
The “information covered” in the bill includes facts often found in public directories, such as the judge’s phone number and address. It includes biographical details such as ‘full date of birth’, identification of minor children, and any immediate family school or employer. The bill would thus allow significant government censorship of truthful speeches about federal judges.
The Supreme Court has repeatedly struck down laws banning the publication of sensitive but true personal information. In Smith vs. Daily Mail (1979), the court explained that “State measures to punish the publication of truthful information can seldom meet constitutional standards”. In Florida Star v. BJF (1989), the court held that sanctions for the publication of truthful information obtained legally can only be imposed “when it is closely aligned with a state interest of the first order”.
To escape the force of these precedents, the bill provides an exception for covered information that “is relevant and posted as part of a news story, commentary, editorial or other speech on a matter of public interest ”. Since Supreme Court precedents dealt with “truthful information on a matter of public importance,” supporters of the bill argue that this exception saves its constitutionality. This is not the case.
Federal judges are public figures. Truthful information about them can facilitate discourse on matters of public interest, even when such truthful information is not itself published as part of a commentary or report. The Wall Street Journal recently published an investigative report revealing dozens of judicial conflicts of interest violations. The investigation focused on the stock held not only by judges, but also by their spouses and minor children. If online encyclopedias and databases were no longer allowed to publish the employers of a judge’s family or even the names of a judge’s children, such investigations would be seriously hampered.
Loss of access to truthful information about public officials can mean loss of the ability to produce information and comment. The draft law’s limited exception for information “relevant and posted as part” of a news article or commentary does not sufficiently address this fundamental problem.
The bill is also not “narrowly tailored”. It only applies to information published on the Internet, and not in print, television or radio. This sub-inclusion is fatal. As the judges wrote in Florida Star, “When a state attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing that interest by enforcing its ban impartially, to the small broadcaster and the media giant. ”
Applying this principle, a federal court in 2017 provisionally ordered a California privacy law that similarly limited its internet restrictions. Remarkably, Senators Tom Cotton (R., Ark.), Ted Cruz (R., Texas) and Alex Padilla (D., Calif.) During the committee hearing for the federal bill praised him as explicitly modeled on California law, without even mentioning this unfavorable decision.
If passed, a federal “judicial privacy” law would likely suffer the same fate as the many similar state laws that have been struck down by the courts. Keeping the federal judiciary safe is a laudable goal, but it is a goal that can be achieved without prohibiting truthful speech.
Mr. Berry is a research fellow at the Robert A. Levy Center for Constitutional Studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.
Copyright © 2021 Dow Jones & Company, Inc. All rights reserved. 87990cbe856818d5eddac44c7b1cdeb8