Free Speech

"Judges Propose Making Disclosure of Their Personal Details a Crime"

This would include group membership, information about where a spouse works, and more.

|The Volokh Conspiracy |

Josh Gerstein (Politico) has the story, with a link to the Judicial Conference of the United States letter laying out the request, including (bullets added):

2. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION of judicial officers and their immediate family members, to include but not be limited to

  • the primary home address;
  • date of birth;
  • social security number;
  • driver's license number;
  • voter registration information that includes a home address;
  • bank account and credit or debit card information;
  • property tax records and any property ownership records, including a secondary residence and any investment property;
  • birth and marriage records;
  • marital status;
  • personal email addresses;
  • home or mobile phone number;
  • vehicle registration information;
  • family member's employer, daycare, or school;
  • personal photographs or photographs of a judicial officer's home;
  • religious, organization, club, or association memberships; identification of children under the age of 18;
  • and any other unique biometric data or piece of information that can be used to identify an individual….

4. MANDATORY REMOVAL OR REDACTION OF JPII UPON WRITTEN REQUEST
SERVED ON ANY PERSON, BUSINESS, ASSOCIATION, OR AGENCY. Upon written request, a person, business, association or agency must, within 48-72 hours of receipt of the request, redact from the public record any existing JPII and may not thereafter knowingly post, display, sell, share, trade or transfer JPII, including publicly accessible and displayed content. No person, business or association shall solicit JPII with intent to do harm to a judicial officer or immediate family member. The written request by a judicial officer, or his or her representative, to remove and/or to redact from the public record JPII of the judicial officer or an immediate family member shall not require a showing of fear of harm or immediate threat and shall remain effective until revocation of the request by the judicial officer or a surviving immediate family member.

Other sections focus on removal of information from the government's own publicly accessible records, so this seems focused on private entities, and seems to use "the public record" in the sense of "publicly posted information" rather than government records (which wouldn't generally be under the control of a "business" or "association"). If implemented as requested, this would require newspapers, blogs, and other publishers to, for instance:

  1. Remove articles discussing a judge's membership in some controversial group, or a group that is connected to litigation pending before the judge.
  2. Remove articles discussing how the work or schooling of a judge's family member's might create a possible conflict of interest or source of bias.
  3. If a judge's child has been accused of crime or misconduct (in school or athletics or otherwise) by name, remove articles discussing this in connection with the judge (e.g., if some people think the family connection may have led to a sweetheart deal).
  4. Remove articles or posted court documents discussing lawsuits related to property the judge owns (or recusal motions based on the judge's property ownership) if those articles or documents contain property tax records or address information or home photographs.
  5. Remove videos or up-to-date photos of a judge involved in some event or altercation, since those would be "biometric data or piece of information that can be used to identify an individual."
  6. Remove videos or photos of a judge's family member who was involved in some event or altercation, if "an individual" is read to include family members and not just the judges themselves.

This strikes me as unconstitutional, even recognizing the serious threats that federal judges sometimes face, from disgruntled litigants and others.

The case for restricting the publication of home addresses is stronger than for some of the other items, but even such addresses are sometimes matters of public concern, as item 4 above suggests.

Moreover, rightly or wrongly, in most of the country residential picketing is legal; and the Court has strongly suggested that, while content-neutral bans on targeted residential picketing are constitutional, they are constitutional because they still allow "[g]eneral marching through residential neighborhoods, or even walking a route in front of an entire block of houses." It's impossible to organize such constitutionally protected events without informing people of the address of the person who is being criticized. Perhaps because of this, courts have generally struck down bans on the publication of government officials' home addresses, see Publius v. Boyer-Vine (C.D. Cal. 2017) and the cases it cites. (Disclosure: I was one of the lawyers for plaintiff in that case.)

(The case for restricting the publication of certain information that seems to have very little likely value other than to facilitate crimes—often financial rather than physical—such as social security numbers, bank account numbers, and the like might be quite strong; see pp. 1146-49 of my Crime-Facilitating Speech article.)

Naturally, before judges are judges, they are people. One can't ignore that this issue literally hits federal judges where they live, and the fact that the letter comes from the Judicial Conference, with Chief Justice Roberts' letter on the letterhead. Still, I hope that Congress or (if the broad version of the law is passed) the federal courts will recognize that the proposal is too broad.

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  1. In Texas, real estate info is public record. Texas also has a provision which hides the otherwise public information for federal & state judges, federal and state prosecutors, law enforcement and a few other categories.

    Google maps also abides by any request to hide such information

    1. Wow. Actual, factual information we can use to evaluate the proposal. But will it matter?

  2. Meanwhile, ordinary people can get doxxed and their houses targeted by mostly-peaceful protestors.

    But I suppose they don’t count because, if they wanted to be protected, they’d should have done the work to join the nomenklatura.

    1. That was my first thought — let’s deal with doxing somehow instead.

      1. Don’t give out your information to anybody who comes along and asks for it. That’ll take care of most doxxing.

  3. Judges and Federal Judges in particular seem to be very sensitive to the risks associated with their jobs. It seems to me the risk quite low in spite of a some well publicized incidents..

    1. This is also generally true of law-enforcement.

  4. It is remarkable that this letter from The Judicial Conference makes no mention of the constitutionality of the legislation they request.

    If I was a congressman, I would be tempted to say any such personal privacy protections should extend to all persons under US jurisdiction.

    Of course that protection would make it impossible for the police or a court to require me to identify myself, thus overriding many existing laws.

  5. If Congress won’t do it they can just make their own law like they do with everything else.

  6. It makes sense that judges would want to pass a law like this. Without it, their power to silence critics is limited.

    For example, this Michigan judge was able to send a guy sent to jail for two months for criticizing her.

    But the jury acquitted the guy in 27 minutes. But with a statute like this, judges could prevent such acquittals.

    1. “with a statute like this, judges could prevent such acquittals.”

      Depends on how much sympathy they get from the judge actually holding the trial. As partisan as judging is becoming, that’s a far thing from a certain bet.

      1. The judge holding this trial was quite sympathetic to his colleague. He had the guy held on $500,000 bond to prevent him from criticizing her on facebook.

  7. Yo….I want the same deal as the judges, wrt redacting on demand of my information and that of my spouse. 🙂

    1. Not to mention the contempt power and absolute immunity.

    2. “Yo….I want the same deal as the judges”

      Get yourself appointed.

  8. Judges don’t like to be doxxed, huh? Wow, that’s unusual. Most people just LOVE the attention.

  9. Professor, is this an accurate quote from the letter? If so, it is one hell of a Freudian slip:

    “Remove articles discussing a judge’s membership in some controversial group, or a group that is connected to litigation pending before the club.”

    1. Funny! No, that was my error — I was thinking about judges’ membership in various clubs (among other groups), and wrote “club” instead of “court.” Sorry, and thanks for pointing this out; I’ve corrected it.

  10. How about allowing them to use pseudonyms as well?

    1. And hoods.

      1. In chambers shaped like stars.

        1. College administrators won’t like the competition.

  11. Only judges? Everybody else is out of luck?

  12. The son of a respected Judge, Judge Salas, was murdered at her home in front of her husband and while she was in the house. Is the Order overbroad? Yes. Is it understandable as a reaction to a murder, yes as well.

    1. By that logic we should allow drug dealer’s exes to have their information concealed from the police.

      That would probably be a better law than this one.

      1. Drug dealer’s exes should be protected by taking the firearms away from cops who want to serve warrants without knocking.

    2. Judge Salas is not the only person in America to be murdered based on the public availability of their personal information. This is not a problem in anyway unique to judges.

      In a way, when we find ways to “solve” such problems exclusively for the most powerful people in our society, we take away the urgency to solve it for everyone else.

      1. I didn’t say it was a good idea for this order. In fact, I think it is a terrible idea. My point was that this was not an action out of the blue. The murder was two months ago, at her house, reportedly by a litigant who appeared before her. And, it was not Judge Salas that was killed; it was her son. And, do we know how he located her house. Not for sure, but it would not have been hard to do so based on the kind of publicly available information they want to block. And, yes, it would not be too hard to find a Judge’s address, or anyone else’s for that matter, with this rule in place or not.

        1. It also wouldn’t have been that hard to follow her home. Most people aren’t particularly good at spotting tails, unlike on TV shows.

          1. No. He didn’t just follow her home. He relied on publicly available information to locale her. It would not have been hard. For example, her husband, who is mentioned in many articles about her, is a prominent defense attorney in New Jersey. His office address is near where they lived.

            My problem with this proposed order is that it is pointless. There is nothing that could be done to prevent this kind of attack through hiding this information. Even after passage of this provision, there would still be so much available information that anyone with half a brain could utilize and find anyone, judge or anyone else. No one had to follow anyone anywhere.

            As H. Rap Brown once said, “violence is as American as cherry pie”. When we live in a country where guns are everywhere, this is the result.

            That the judicial conference raised the issue was, imho, was their reaction to this attack, and others in the past. That was my sole point.

    3. And so because of this one event, we need to make it a federal crime for a news organization to fail to “Remove videos or up-to-date photos of a judge involved in some event?” Which would make it a crime for national broadcast networks to show Chief Justice Roberts swearing in the next President?

    4. A chunk of Bangor had to be shut down in October of 2018 after Sen Susan Collins’ husband opened a letter purporting to be full of Ricin. https://bangordailynews.com/2018/10/15/news/bangor/police-presence-at-collins-bangor-home-monday-afternoon-after-suspicious-letter-received/

      1. Sen. Collins has a husband?

        That makes her constant tonguing of Donald Trump’s genitals and Mitch McConnell’s ass even more objectionable.

        That poor guy and Heidi Cruz should get together.

        1. I just love the Woke.

        2. You think it was a plot to take out Collins, Trump, and McConnell in one move? Interesting.

    5. If judges don’t care about our safety, why should we care about theirs? Protect everyone the same.

    6. I don’t see how this solves that problem. Makes doing it harder? Probably. But it doesn’t solve it.

      If I’m deranged and I decide to murder someone, knowing their address is handy, but not necessary. Even without an address, I can find lots of other ways of tracking the person. Particularly if I know where they work. I also don’t know how making their membership in groups addresses this concern. It strikes me that this is just a way to get privacy unavailable to others.

      1. ” I also don’t know how making their membership in groups addresses this concern.”

        if you know they’re a member of, say, the pta, you can stake out the pta meetings and hope to see them there. it gives you another possible avenue of arranging to be in the same place they are.

    7. Is there any basis to think that the murderer was able to find Judge Salas’s house because of publicly available “JPII”?

      1. The murderer was a litigant in a case before Judge Salas. How do you suppose he figured out where she lived. Did she tell him and invite him over?

        1. NJ property records are public. Not hard to track someone down.

          1. Well, that’s kind of the point—this proposal would require New Jersey to make the judges’ property records non-public.

        2. I don’t have the slightest idea, which is why I asked. Maybe he followed her home, since he knew where she worked. Maybe she mentioned the neighborhood at some point and he staked it out until he saw her. Maybe he found out the address through one of her family members. Or maybe he used a source that would be protected under the proposal.

      2. “Is there any basis to think that the murderer was able to find Judge Salas’s house because of publicly available “JPII”?”

        He found the house. That’s a sign he managed to do find it because the information was available.

  13. Can we please have a law that anyone involved in the passage of a law or regulation that is found to be unconstitutional shall be personally liable for the costs of fighting and overturning the unconstitutional rule?

    1. “…the passage of a law or regulation that is found to be unconstitutional…”

      Who is doing this “finding” that you speak of? Just because the judicial information exception to the first amendment hasn’t been invented yet doesn’t mean that it’s any less a part of the constitution.

  14. Sovereign immunity was justified by the Sovereign’s speaking with the Voice of God. That is a psychotic delusion. It also violates the Establishment Clause of our secular nation.

    All sovereign immunity should be ended. Let this incompetents get insurance to cover the damages caused by any deviation from their professional standards of due care.

    As a matter of policy, immunity grows an industry. Liability shrinks it. Advocates of smaller, less tyrannical government should support ending all sovereign immunities. They are unjustified, and harmful to our economy.

    This policy can start to change by accepting the plain English of the Eleventh Amendment. It allows litigation against a State by its own citizens. That was prohibited by a mere, and inappropriate Supreme Court ruling in Hans.

    https://en.wikipedia.org/wiki/Hans_v._Louisiana

    1. “Sovereign immunity was justified by the Sovereign’s speaking with the Voice of God. That is a psychotic delusion. It also violates the Establishment Clause of our secular nation. ”

      This is your delusion, you deal with it.

      1. Henry of Bracton said that of Edward I, Longshanks, in Braveheart. It is in his Notebook. Bracton is Brittany. He was not even English, but a French wanker. You lawyers are still practicing his law, with minor modifications. Your profession has a psychotic origin.

        1. ” He was not even English, but a French wanker. You lawyers are still practicing his law, with minor modifications. Your profession has a psychotic origin.”

          That’s ALSO your delusion, I’m an IT manager.

          1. To clarify, only a small number of IT managers have psychotic origins.

            1. James. I have no dispute with you. You, as everyone else, is a victim of the biggest and most powerful criminal enterprise in the world, the American lawyer profession. They have seized full control of the three branches of government. Every year a lawyer breathes, he destroys $millions of economic value. They extort a $trillion a year.

              1. You’re delusional, and it seems to be causing you some distress.
                But this is still not MY problem, so YOU should go deal with it.

      2. James, a little Latin light reading. Thanks for being the only one stupid enough to reply to me.

        https://www.bookdepository.com/Bractons-Note-Book-Henry-De-Bracton/9781108010306

        1. “James, a little Latin light reading.”

          Hell, no, if English was good enough for Jesus, it’s good enough for me.

          ” Thanks for being the only one stupid enough to reply to me.”

          You’re welcome. Now stop being the only stupid enough to BE you.

  15. Unfortunately, judges are not the only people who face threats based on the release of their public information. Judges are not the only ones who face the risk of retaliation when they anger someone by making a legitimate decision they have a right to make.

    My inclination when it comes to laws singling out certain people in certain professions for special treatment is to oppose those laws. We ought to look for laws that solve what is a general problem in a more general way.

  16. Either we live in a free country, or we don’t.
    So for now, we don’t.

    1. Depends entirely on what, exactly, you want to be free to do.

  17. No special private law for judges. If judges get protection, everyone else should get the same protection. If judges had to protect their homes from a “mostly peaceful protest”, then maybe we’d all have a freer hand protecting our homes.

    1. you want more than the freedom to cross state lines and shoot people in other states to “protect businesses”?

      1. Consider seeing a psychiatrist.

        1. Why would I assume I’d get better results than you did?

    2. Are you under the impression that someone protects judges’ homes in the ordinary course of a protest, as opposed to when some specific threat manifests itself? If Roy Den Hollander hadn’t blown his own brains out, there would surely have been federal marshals at the homes of other judges on his hit list (which could easily be reconstructed with 10 minutes on Lexis or Westlaw), but not in response to protests.

  18. I’ll remember this document the next time I have a federal judge lecture one of my public sector clients about free speech, the need for robust debate in a democratic society, the need for public figures to have “thick skin,” how prior restraint is an unspeakable evil, etc.

  19. “murders of United States District Judge John Wood (1979), United States District Judge Richard Daronco (1988), United States Circuit Judge Robert Vance (1989), United States District Judge John Roll (2011), family members of United States District Judge Joan Lefkow (2005), and now the son of United States District Judge Esther Salas”

    6 in over 40 years.

    John Roll was a random victim at a public political event. So, that’s 5 targeted attacks, three decades ago and after a long gap, two recently.

    1. How many dead people is the right amount of dead people?

      1. The same as the right amount of censorship. And the amount of special rights for judges.

        1. Bob has a different answer than you or I, apparently.

      2. There were currently around 15,000 murders a year, that’s more than 60,000 in the last 40 years, probably way more since the number has declined substantially in the last 40 years..

        1. Math, it’s a bitch. 15,000/yr is already “way more” than 60,000/40 yrs.

      3. Ahh yes. If it saves one life, it’s worth it. Unless it’s 50 million aborted fetuses.

        1. Take it up with someone who cares how many fetuses you aborted.

  20. Judges:

    At the time of the shootings, it wasn’t clearly established that unarmed black children had a right to be in the park on a Tuesday without being shot. The only prior case on the subject involved unarmed black children being shot in the park on a Wednesday. We find that the officers had qualified immunity. We decline to reach the question today.

    “The son of a respected Judge, Judge Salas, was murdered at her home…”

    Same judges: Holy Shit, we can’t have a first amendment now!

  21. Let judges fear attack, as everyone else does, from the criminals they are protecting. Judges should be armed, and get legal immunity for killing trespassers, as we all should.

    1. unless the trespassers are serving a no-knock warrant, in which case they have the right to shoot any occupant(s) of the house they may find.

      1. But not the right to shoot the walls of the neighbors, as that’s just too far. Oddly enough, shooting the floors of the upstairs neighbor is still fine.

  22. California had a review of which records should be open to public perusal after Rebecca Schaeffer was murdered.

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