The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A New Jersey statute (enacted last Fall) limits publishing judges', prosecutors', and law enforcement officers' home addresses; it makes it
- a crime to publish them if the publisher recklessly disregards the risk that it will "expose another to harassment or risk of harm to life or property,"
- civilly actionable if the publisher is negligent about it, and
- categorically forbidden regardless of the publisher's mental state if the judge has specifically instructed the publisher to remove it.
That itself poses interesting First Amendment problems, given that marching past a person's home as a protest seems to be constitutionally protected, see Frisby v. Schultz, and in many places even targeted residential picketing is legal; how can one organize such legally permissible events if one can't find out and the communicate the address involved? And the law may also raise an interesting R.A.V. v. City of St. Paul question, given that it singles out speech about these government officials and doesn't provide similar protection to other people who may reasonably worry about harassment or attack.
But I'm especially interested in another provision of the statute (breaks added):
Any … judicial officer … or prosecutor [or, subject to some limitations, law enforcement officer] …
whose immediate family member's [i.e., spouse's, parent's, or child's] name … is disclosed on the Internet, or re-disclosed or otherwise made available, …
[and] may be used, alone or in conjunction with any other information, to identify the person as the family member of a judicial officer or prosecutor [or law enforcement officer],
may request that the person, business, or association that disclosed, re-disclosed, or otherwise made available that information refrain from that action
and remove the information ….
Upon receipt of a written request to refrain and remove information, the person, business, or association that disclosed, re-disclosed, or otherwise made available the information shall have 72 hours to remove that information from the Internet or where otherwise made available, and shall not disclose, re-disclose, or otherwise make available that information to any other person, business, or association through any medium.
[If the material is] not timely removed … within 72 hours [or the poster] re-discloses [it] … at any time subsequent to receipt of the written request, [the judge, prosecutor, or law enforcement officer] may bring an action seeking injunctive or declaratory relief in the Superior Court. If the court grants injunctive or declaratory relief, the person, business, or association responsible for the violation shall be required to pay reasonable attorney's fees and other litigation costs ….
This would, among other things, require removing any items that mention a family member's name when discussing
- how the professional or political actions of a judge's spouse, parent, or child can create a possibility of bias for the judge,
- whether there might have been nepotism in a judge's, prosecutor's, or police officer's family member being hired by a government agency,
- whether the treatment of a judge's, prosecutor's, or police officer's family member who had been accused of a crime might have been influenced by the connection, and more.
It would extend to all sorts of commentary, whether blog posts, newspaper articles, or anything else. And it would apply regardless of whether there's evidence that mention of the family member's name creates a serious risk of violence against the family member. I sympathize with the concern that prompted the law (and in particular the murder of U.S. District Judge Esther Salas' son), but I can't see how this would be constitutional.
Thanks to Keith Kaplan for the pointer.