Court Says New Jersey Law Forbidding Disclosure Of Cops’ Personal Info Doesn’t Violate The 1st Amendment
For a few years now, New Jersey cops have enjoyed additional privacy protections that aren’t made available to other residents of the state. The reason is “Daniel’s Law.” This law went into effect in 2021, placing cops, judges, and certain other government employees above the people they serve by forbidding the dissemination of their personal info.
Like almost all laws named after crime victims, the law is problematic. In this case, the law is named after the husband of New Jersey judge Esther Salas, whose son (Daniel Anderl) was killed by someone posing as a delivery person. The assumption was that the murderer (who also killed California attorney Marc Angelucci) had something against people involved in the criminal justice system. And thus, Daniel’s Law was born, resulting in the ability for the government to extract fines from companies who disseminated this data, as well as creating a legal avenue for cops, judges, and others protected by this law to sue data brokers and others (ranging from Zillow to Whitepages to LexisNexis) who published publicly-available data.
A bunch of cops have sued these data brokers, ad agencies, and other purveyors of publicly-obtained information in federal court, claiming violations of New Jersey’s state law. Represented by Atlas Law (which refers to itself as “Atlas Data Privacy Corporation” in these lawsuits), cops are suing to protect themselves from the sort of data collection and publication the rest of us are just expected to deal with, even if it means private citizens are subject to the same sort of harassment and threats of violence (if not actual violence) the online publication of names and addresses can lead to.
The good news is that everyone who isn’t a cop or a judge will have a few more privacy protections starting next year. Unfortunately, it isn’t as comprehensive as “Daniel’s Law,” which creates a carve-out preventing publication of certain government employees’ data. The new law that’s being handed to the public only allows residents to correct information, to copies of what data has been retained, and to opt out of certain data collections. What it doesn’t do is give them the right to do what’s being done here: sue data collectors and brokers for making their personal information available to other internet users.
Unfortunately for everyone but the cops who will benefit from this extra right, a New Jersey federal court has agreed with the litigious officers, as Eugene Volokh reports. The decision [PDF] says there’s nothing unconstitutional about preventing multiple sites from publishing data they acquired legally.
The case is being handled by a judge from Pennsylvania, which seems a bit weird until you realize every New Jersey judge recused themselves from this case for a very obvious reason: they are direct beneficiaries of this law, which was written in response to the murder of a New Jersey judge’s son.
But even with a visitor at the helm, the court still has home-field advantage. And you can tell which direction this decision is headed when the judge decides to frame the issue this way:
If, for example, defendants simply published statistics compiled by the Census Bureau, the information would probably be characterized as data. That is not what is happening here. Instead, the home addresses and unlisted phone numbers being disseminated are tied to specific persons. In other words, the defendants are telling the world that Police Officer Jane Jones resides at 123 Main Street, Camden and can be reached at 609-000-0000.
The problem is obvious: the entity delivering the data may not know that this person is a police officer. The law allows officers to request deletion after the fact, but it’s unrealistic to expect companies that collect personal information to know in advance whether that information belongs to a “protected group” (so to speak) under New Jersey law.
The court recognizes that this poses somewhat of a problem for data brokers. It also acknowledges this is clearly a content-based speech restriction, which subjects it to a higher level of constitutional scrutiny. But in the end, it all comes down to who the court wants to protect and what level of constitutional collateral damage it’s willing to endorse to protect a very small subset of the New Jersey population, most of who already have plenty of power, extra rights, and multiple levels of judicial immunity.
At this stage of the pending cases, the court must accept as true the well-pleaded facts and may take judicial notice as appropriate of other facts. After applying the legal analysis enumerated by the Supreme Court to the particular facts and circumstances presented here, Daniel’s Law with its negligence standard of liability for actual or liquidated damages is constitutional on its face. The speech that is restricted is not of public significance, the law imposing the restriction serves to further a need of the highest order of the State of New Jersey, and the law serves the significant interest of the State and is not fatally underinclusive.
Because the state considers it imperative to keep public info about cops and judge out of the hands of the public, the law is just and good and “furthers a need of the highest order.” And, since the judge has decided that addresses, phone numbers, and other information about police officers, judges et al is not “of public significance,” it feels justified dialing back First Amendment protections that normally would have covered this dissemination of information. And, not only does it say (implicitly) there’s no First Amendment right to publish this info, it even more implicitly suggests there’s no First Amendment right to access this information. Apparently, the murder of a judge’s son is sufficient enough of a reason to impose limitations and liabilities that simply aren’t found anywhere else in the nation, at least not in this form. That’s not a good law. That’s just extra rights for people who have a ton of them already.
There’s a better way to do this and it starts with striking down this law as unconstitutional due to its content-based restrictions. The cops can still have their privacy. They’ll just have to share it with the people they serve. It’s not an impossibility or even that much of an imposition. After all, other states have passed analogous data privacy laws. But they’ve awarded these protections to all residents, rather than leveraging an anomalous criminal act to create a carve-out for the animals that will always be more equal than others.