Court Upholds N.J. Law That Lets "Certain Public Officials" Demand That Private Entities Stop Disclosing Their Home Addresses

From Tuesday's decision by Judge Harvey Bartle (E.D. Pa.) in Atlas Data Privacy Corp. v. We Inform, LLC (D.N.J.):

Daniel's Law [a New Jersey civil and criminal statute] provides that judges, prosecutors and other law enforcement officers as well as their immediate family members ("covered persons") may request in writing that any person, business, or association not disclose or make available their home addresses and unpublished telephone numbers….

In July 2020, a disgruntled lawyer who had litigated before United States District Judge Esther Salas sought to assassinate her at her home in New Jersey. After finding her home address on the Internet, the lawyer showed up on a Sunday evening armed and dressed as a delivery driver. Daniel Anderl, Judge Salas's twenty-year-old son, answered the door and was fatally shot by the lawyer. Her husband and Daniel's father was severely wounded. The lawyer then fled. In response to these crimes, the New Jersey Legislature passed Daniel's Law in November 2020 and has amended it thereafter.

Daniel's Law, as declared by the New Jersey Legislature, was enacted to serve the following goals:

This act shall be liberally construed in order to accomplish its purpose and the public policy of this State, which is to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators[,] … and prosecutors, who serve or have served the people of New Jersey, and the immediate family members of these individuals, to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions.

The law prohibits any entity when requested from thereafter disclosing the home address and unpublished telephone number of a covered person …. A "covered person" is defined as "an active, formerly active, or retired judicial officer, law enforcement officer, or child protective investigator …, or prosecutor and any immediate family member residing in the same household as such [individual]." … The entity must comply with the request no later than 10 business days after receipt.

The court concludes that the law is a content-based speech restriction that extends beyond mere "commercial speech," but nonetheless upholds the law against a facial challenge (leaving possible room for occasional as-applied challenges when the home address is sufficiently "newsworthy"):

The words "strict scrutiny" and the strict scrutiny standard of review … do not appear in the … Supreme Court decisions involving the right to privacy. Instead, the Supreme Court has outlined three specific factors that a court must consider in balancing the right of privacy against the right of free speech. In The Florida Star v. B.J.F. (1989), which involved a civil statute imposing damages for the publication of the name of a rape victim, the Court established that the first inquiry is whether the information is lawfully obtained and is of public significance. A court must then determine whether the law in question serves "a need to further a state interest of the highest order." Finally, the court must decide whether the statute serves "the significant interests" which the state purports to advance and is not underinclusive….

First, the court concludes that the home addresses and unpublished phone numbers are not matters of public significance. The narrow limitation under Daniel's Law constitutes but a tiny part of the life story of covered persons and is not information that is necessary or pertinent for public oversight. Daniel's Law does not inhibit in any meaningful way the public's knowledge of public officials or its ability to hold them accountable for their performance and behavior….

The defendants raise the specter of a number of hypotheticals where the home address or the unlisted phone number of a covered person may be newsworthy and thus of public significance. If any of these hypotheticals ever comes to pass, the defendants' remedy is to challenge Daniel's law as unconstitutional as applied.

Second, … Daniel's Law serves a need to further a state interest of the highest order…. The court need not tarry by reciting in detail the support for the well-known fact, amply documented by the record here, that in recent years judges, prosecutors, police, correctional officers, and others in law enforcement have been the subject of an ever increasing number of threats and even assassinations. Some of these threats and assassinations [including the attack that prompted Daniel's Law] … have been facilitated by malefactors obtaining the home address or unlisted phone number of their targets….

Finally, the defendants assert that Daniel's Law fails because it is underinclusive. By invoking underinclusiveness, they mean that New Jersey is not really pursuing or the law is not advancing its compelling state interest in protecting judges, prosecutors, and other law enforcement officers from threats and assassinations.

Defendants reference that Daniel's Law has a number of exemptions allowing for disclosure of home addresses. The law, for example, does not block access to home addresses which appear on property records or on voter registration lists. The short answer is that this type of information is generally more difficult to extract from public records than information found on the Internet…. [T]here is "a vast difference between public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." …

The defendants also fault the law because it treats private and business entities more strictly than public agencies. The law does not limit the use of information by governmental agencies in the same way it does private entities. In some instances, the availability of home addresses and even phone numbers is necessary for the government and society to function. It also allows the State more time to remove information from public access. This is understandable considering the numerous state agencies, counties, and municipalities which may hold such information….

The distinctions made in Daniel's Law are sound—not arbitrary or discriminatory. All non-governmental entities are treated the same. The New Jersey Legislature has had to grapple with a very complex and important issue in trying to protect covered persons who seek to uphold the rule of law and who by the very nature of their jobs are in the public eye….

The defendants challenge other aspects of Daniel's Law. They criticize the law's sweep in not limiting notice of non-disclosure to situations where there are "true threats." By then, any notice not to disclose a home address and unlisted telephone number is probably too late. That would be analogous to closing the barn door after the horse has left. The Legislature was not unreasonable in determining that the law to be effective must allow covered persons to request non-disclosure preemptively. Defendants also argue that the definition of "disclose" is too broad. The law reads as it does to advance the state's significant interest in protecting the lives and well-being of covered persons. This argument is not persuasive.

Defendants further suggest that a protective order would be a sufficient remedy. It is questionable that the entry of a protective order would be effective after the information is released. The court disagrees that this legislative scheme is invalid….

Plaintiffs are represented by Rajiv D. Parikh of Pem Law LLP.