The Volokh Conspiracy
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Journalist Has No First Amendment Right to Publish Police Chief's Home Address,
even when he got the address through a public records request, and is trying to use it to show the chief lives far from town. The court concluded that the chief's "exact street address is not a matter of public concern" and therefore, under the circumstances, wasn't constitutionally protected.
From Kratovil v. City of New Brunswick, decided Friday by the N.J. intermediate appellate court (Judges Gilson, DeAlmeida, and Bishop-Thompson):
Plaintiff is a journalist who writes for and edits New Brunswick Today, an online publication. As the name of the publication suggests, it focuses on local news about the City.
Defendant Caputo is a retired police officer who then became Director of the City's Police Department. Caputo was also a Commissioner of the City's Parking Authority. He served in both those positions through 2023 and retired from those positions in early 2024.
In 2023, plaintiff noted that Caputo was not attending City Council meetings, nor was he regularly attending Parking Authority meetings in person. On March 14, 2023, plaintiff sent Caputo an email asking if Caputo still lived in the City. The Deputy Director of Police responded on Caputo's behalf, stating, in relevant part: "The public release of a law enforcement officer's place of residence is protected under Daniel's Law."
Plaintiff came to believe that Caputo was living in Cape May. To confirm that belief, plaintiff filed a request under the Open Public Records Act (the OPRA) with the Cape May County Board of Elections (the Cape May Board), requesting Caputo's voter profile. Initially, the Cape May Board provided a redacted version of Caputo's voting profile to plaintiff in March 2023. After follow-up communications from plaintiff, in April 2023, the Cape May Board produced a voter profile with fewer redactions. That voter profile included Caputo's home address.
At meetings of the City's Parking Authority and the City Council conducted on March 22, 2023 and April 5, 2023, respectively, plaintiff asked if Caputo still lived in the City. Neither Caputo nor anyone else from the City definitively responded to plaintiff's question.
On May 3, 2023, plaintiff attended another City Council meeting. The City and plaintiff separately recorded that meeting. During the public comment portion of the meeting, plaintiff discussed Caputo's change of residence, that Caputo's residence in Cape May was approximately a two-hour drive from the City, and that Caputo was serving on the City's Parking Authority even though he was a non-resident. During that discussion, plaintiff stated the street name in Cape May where Caputo was registered to vote. He also provided City Council members with copies of Caputo's voter profile, which included Caputo's complete home address.
On May 15, 2023, plaintiff received a letter notifying him that Caputo was invoking Daniel's Law to prevent re-publication of his home address. That letter stated:
On Wednesday, May 3, 2023, you published and/or announced my home address at a public meeting of the New Brunswick City Council. Kindly accept this letter [as] a written notice as required by [Daniel's Law].
Pursuant to N.J.S.A. 2C:20-31.1 and N.J.S.A. 56:8-166.1, and as an authorized and otherwise covered person whose home address and unpublished home telephone number are not subject to disclosure, I do hereby request that you cease the disclosure of such information and remove the protected information from the internet or where otherwise made available.
I trust you will be guided accordingly.
Plaintiff sued, "stat[ing] that he planned to publish an article about Caputo living in Cape May, which would include Caputo's home address" and seeking "a declaration that Daniel's Law was unconstitutional as applied to his intended publication." The court held for defendants, reasoning thus:
Daniel's Law … was named for Daniel Anderl, the son of United States District Court Judge Esther Salas. In 2020, a disgruntled attorney went to Judge Salas' home and shot and killed Daniel. The assailant also severely wounded Judge Salas' husband. The assailant had found Judge Salas' home address on the internet.
Daniel's Law is intended to prevent further attacks on certain government officials and their families. It prohibits the disclosure of residential addresses and personal phone numbers of "covered persons," including active and retired judges, prosecutors, and law enforcement officials. Moreover, Daniel's Law provides that on notice, a person, business, or association shall not disclose or re-disclose the home address or telephone number of a covered person. Daniel's Law imposes civil penalties for violations, including $1,000 per violation, punitive damages, and attorney's fees. In addition, a "reckless violation of [Daniel's Law] is a crime of the fourth degree," and a "purposeful violation of [Daniel's Law] is a crime of the third degree." …
[T]he United States Supreme Court has repeatedly held that "if a newspaper lawfully obtains truthful information about a matter of public significance[,] then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order." …
All parties agree, and the record confirms, that the matter of public concern was that Caputo lived in Cape May while serving as the City's Director of Police and a Commissioner of the City's Parking Authority. In responding to plaintiff's complaint, defendants conceded, and the trial court subsequently held, that plaintiff always had the right to publish that Caputo lived in Cape May, which was a substantial distance from the City, without being subject to Daniel's Law sanctions….
Caputo's exact street address is not a matter of public concern …. [And] protecting public officials from violent attacks and harassment is a compelling State interest of the highest order….
Note that the opinion did not rely on the fact that the police chief recently retired (perhaps because he retired well after the incidents that gave rise to the litigation).
For generally contrary (though not factually identical) decisions, see Publius v. Boyer-Vine (C.D. Cal. 2017), Brayshaw v. City of Tallahassee (N.D. Fla. 2010), Sheehan v. Gregoire (W.D. Wash. 2003), and Ostergren v. Cuccinelli (4th Cir. 2010). Note also that most states don't prohibit residential picketing. (Such prohibitions, if content-neutral, would be constitutional, see Frisby v. Schultz (1988), but in the absence of such a content-neutral manner restriction, residential picketing is constitutionally protected speech.) New Jersey, in particular, doesn't forbid such picketing, though some cities might. It follows then, that people must have the legal right to organize such picketing. If so, how can they go about doing that if they can be legally barred from publicizing the address at which the picketing is to occur? Or would that argument only justify a declaration that someone who is organizing such picketing can disclose the address, and not someone who is simply trying to concretely demonstrate that a police chief lives outside town?
Susan K. O'Connor argued the case for defendants.
