What Judges Might Ponder in Judicial Safety Law Challenge

Data Strategy, Security and Privacy attorney Paul Bond was interviewed for a Law360 article covering a federal appellate case at the intersection of free speech and data privacy. The U.S. Court of Appeals for the Third Circuit will examine the constitutionality of a New Jersey law that prohibits posting the home addresses or phone numbers of judges and prosecutors online; known as Daniel's Law, the statute was enacted in response to the fatal shooting of a federal judge's son by a disgruntled litigant. The case pits the interest in protecting judicial officials and encouraging public service against First Amendment rights and upholding free speech.

Mr. Bond explained that content-based restrictions such as the ones included in Daniel's Law are subject to strict scrutiny, the highest level of constitutional review, meaning the government must prove there is not a less restrictive way to achieve a compelling interest. The district court did not apply strict scrutiny in its review because the law focused on privacy, and he said one of the questions the Third Circuit will have to answer is whether that approach was correct. He also noted the court will need to consider mens rea issues, since the law "doesn't give a degree of culpability that the publisher has to have in order for it to be unlawful." Acknowledging the "real human interest" at play in the case, he reiterated that the First Amendment exists to protect unpopular speech, as well as truthful, publicly available information – making the Third Circuit's decision a potentially significant one.

"First Amendment law often protects unpopular or uncomfortable speech," he said. "That's the whole point. The question here is whether protecting public officials can justify this kind of broad, punitive measure against truthful speech."

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