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Protecting Judges Is Important, But They Don't Get To Throw Out The 1st Amendment For Themselves

from the just-saying dept

It's been said that any time a bill in a legislature is named after someone who died, you know there's going to be problems with the bill. That's because most of those bills are responses to truly horrific or tragic circumstances, but then our natural inclination is to go too far in diminishing the rights of the public in response to a single horrific scenario. This is, unfortunately, the case with the Daniel Anderl Judicial Security and Privacy Act of 2021. The events that precipitated the bill are, undeniably, awful and tragic. In the summer of 2020 an obviously mentally unwell lawyer, who had represented a client before US District Judge Esther Salas, went to her home, dressed as a FedEx delivery person, and shot and killed Judge Salas's son, Daniel Anderl (as well as shooting and injuring Salas' husband, Mark Anderl). The shooter then took his own life.

Obviously, everything about that story is horrific, and there are all sorts of things that it should lead us to think about regarding policies that protect human life and how we deal with things like mental health. But, rather than taking a bigger look at things, Congress set out to try to create a special class for protection: federal judges. And, yes, there are reasons to make sure that federal judges are safe, and it's perfectly reasonable to support the underlying goals of such a bill. But, this bill goes too far. The underlying setup in the bill is that it wants to hide personal information about judges at the request of those judges -- who are labeled (oddly) as "at risk individuals" in the law.

The law then bans "other businesses" from posting any information on an "at risk individual" (i.e., a judge) if that individual sends a request to take down the information:

No person, business, or association shall publicly post or publicly display on the internet personally identifiable information of an at-risk individual or immediate family if the at-risk individual has made a written request of that person, business, or association to not disclose the personally identifiable information of the at-risk individual or immediate family.

Again, the thinking here makes some amount of sense. A judge, who may reasonably fear that they are at risk from, perhaps, an unhappy party before them, wants to make sure that their information is not available. But there are a few problems with this. The list of "personally identifiable information" in the bill includes more than just home addresses. It includes things like "full date of birth." In other words, merely naming the birth date of a federal judge online can be barred if that judge decides he or she does not want that information online.

That's pretty clearly unconstitutional. I mean, we kind of already went through this in California, where a law was passed, ostensibly to fight "ageism" in Hollywood, that would ban sites like IMDb from posting the birthdate of actors. But the courts rightly tossed that out as unconstitutional.

This is basically the same thing. But because it deals with federal judges, not Hollywood actors, and is in response to a horrific murder, not an aging actor feeling snubbed, it raises questions about whether or not judges themselves (who are the specific beneficiaries of this law) will admit that it is equally unconstitutional.

The Free Law Project -- one of the most useful resources online for those following legal disputes -- is raising the alarm about this bill, noting that they also wish to help keep judges safe (we all do), but highlighting that this creates significant problems for a site like the Free Law Project.

I had spoken to some folks in DC about a month ago concerning this bill, and more or less heard that it was political suicide to oppose the bill. No one wants to look like they're opposed to protecting federal judges -- especially after the tragic events of last summer. And, it's completely understandable that Judge Salas is directly supporting the law. I cannot fault her for this, but it's also quite clear that the bill has significant 1st Amendment issues at the same time.

And, unfortunately, very, very few people seem willing to raise those constitutional problems, because no one wants to be seen opposing protecting federal judges in response to these events. But it's possible to believe that we should better protect federal judges... and that we can do so in a manner that does not fundamentally violate the 1st Amendment. As the Free Law Project notes, why are we not more focused on making the country safer for everyone, rather than creating a special class for Federal Judges that ignores the 1st Amendment?

Of course, the fear on top of all this is that, if this bill passes, even if it were challenged, would a federal judge -- effectively the only direct beneficiaries of the bill itself -- come out and admit to the constitutional problems with the bill? It's unclear to me how you could even have an impartial judicial analysis of the bill, as the people it protects are literally the only ones who can determine whether or not the bill is constitutional.

We should be able to protect not just judges, but everyone, without making websites like the Free Law Project illegal. And we should be able to speak out about the concerns of this bill without it being "political suicide." What happened to Judge Salas and her family is tragic. And there are ways to protect federal judges and everyone else better. But it shouldn't involve dumping our 1st Amendment rights in the process.

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Filed Under: 1st amendment, at risk, daniel anderl, esther salas, free speech, intermediary liability, judges, liability, protecting judges
Companies: free law project


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  • icon
    Thad (profile), 3 Dec 2021 @ 1:58pm

    Reminder: when the Phoenix New Times reported some shady real estate dealings that then-Sheriff Joe Arpaio was involved in, he had the paper's owners arrested for publishing the address of an LEO.

    There are legitimate, public-interest reasons to publish personal information about public officials. An official's home address, or information about members of their family or where they've been, may be relevant to exposing corrupt, or just embarrassing, behavior.

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 3 Dec 2021 @ 2:09pm

    political suicide to oppose the bill

    This rather reminds me of the opposition to scrutiny a certain journalist copped when challenging Enron. Someone told "doubting Thomas" that "these are the smartest guys in the room".

    Suitably motivated people will always find a way to work around these rules, and most other people will be caught up as by-catch in the dragnet. And if this can be applied for judges, how long before others demand the same thing?

    Of course you can imagine the outcry if someone suggested that maybe carrying guns so easily should be dealt with first.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Dec 2021 @ 2:30pm

      Re: political suicide to oppose the bill

      And/or destigmatizing mental health care and making it more available, not pretending that lawyers are some special species that never have mental issues and are above examination... any number of steps that would address the problem better than just hiding the home addresses of a particular class of people and pretending that that solves the issue.

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Dec 2021 @ 2:22pm

    'Now that we've got the door open a bit...'

    But wait, there's more. As problematic as the bill might be now you can be absolutely certain that once it becomes legally acceptable to give extra protections to one category others will be added.

    As just one example I can think of a politician who's shown up on TD more than a few times who would likely just love it if people weren't allowed to talk about what properties he owns and where they're located, and I'm sure there are many more in similar situations.

    reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 3 Dec 2021 @ 4:08pm

      Re: 'Now that we've got the door open a bit...'

      As problematic as the bill might be now you can be absolutely certain that once it becomes legally acceptable to give extra protections to one category others will be added.

      Yeah, but the courts won't have a vested interest in declaring those constitutional.

      As just one example I can think of a politician who's shown up on TD more than a few times who would likely just love it if people weren't allowed to talk about what properties he owns and where they're located, and I'm sure there are many more in similar situations.

      Does losing a bunch of primaries really make someone a politician?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 3 Dec 2021 @ 8:06pm

        Re: Re: 'Now that we've got the door open a bit...'

        Yeah, but the courts won't have a vested interest in declaring those constitutional.

        Yes and no, it wouldn't immediately impact them if the group was someone other than federal judges but they would still have a motivation to defend the base of the law, that being that some animals are indeed more equal than others.

        Does losing a bunch of primaries really make someone a politician?

        I was thinking more someone already in office who keeps having a cow over what people say online about him, though the fact that you immediately thought of someone else does rather prove my point I suppose.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Dec 2021 @ 12:13am

          Re: Re: Re: 'Now that we've got the door open a bit...'

          Do you realize how little that narrows it down to?

          Especially when there's an international audience?

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2021 @ 2:23pm

    What information on the Internet was used in the commission of that horrific act. (I presume lawyers have ways of getting information on judges not available to the public).

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 3 Dec 2021 @ 3:41pm

    A person above the law

    Placing a person beyond what the common person experiences, make them Immune to Society.
    They dont get to experience and learn about whats happening in the world. They cant learn from mistakes. They are in a closed bubble of their Own piers and those Allowed to be near them.
    You might as well be a republican. Oops, thats about right.(Joke included)

    The problem here was 1 person with problems, and no one, no group, that would deal with it. Seems like they knew they had a problem, and no one delt with it.

    https://www.cnn.com/2020/07/20/us/suspect-shooting-at-judge-salas-home/index.html
    On his website, Roy Den Hollander described himself as an "anti-feminist" lawyer who defended "men's rights." His personal writings and life's work reveal a toxic stew of sexist and racist bigotry.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2021 @ 4:45pm

      Re: A person above the law

      indeed, everyone in America should be equal under the law, with no special rights created for politically favored groups (especially not government officials).

      and yes, fundamental law specified in the Constitution and Bill of Rights should be earnestly adhered to.

      small problem is that most all Americans really do not agree with the above legal principles when applied to practical day to day issues.
      Everyone here (and all legislators and judges) has some serious disagreements with parts of the Constitution; so who decides what's "legal" ?

      most of the hundreds of thousands of current American laws are legally non-constitutional, but few people notice or care.
      why worry over just one more little Constitutional violation?

      the basic rule of law concept has deep meaning, but is easily brushed aside in the dark world of politics and daily government rule.
      U.S. "law" is now merely an insider game of power players, with a bewildered populace constantly exploited by an illegitimate, politicized Legal Establishment.

      Merry Christmas ?

      reply to this | link to this | view in chronology ]

      • identicon
        Pixelation, 3 Dec 2021 @ 7:53pm

        Re: Re: A person above the law

        "indeed, everyone in America should be equal under the law"

        Well, as has been said before, some are more equal than others. Judges want their extra equality now.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Dec 2021 @ 6:04am

          Re: Judges want their extra equality now

          yup, but judges already enjoy extra legal immunity from civil & criminal laws. Cops and prosecutors too, to lesser extent.

          there's been a long concerted government effort to grant special legal privilesges to various government employees.

          in my state, the names/addresses of cops, firemen, and some other government categories are specifically deleted from the normal public real estate records ... as a privacy measure -- but everybody else has their full home/property/ownership details in open public view.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2021 @ 5:16pm

    why are we not more focused on making the country safer for everyone, rather than creating a special class for Federal Judges that ignores the 1st Amendment?

    Because the rest of the camel is getting cold on the other side of that tent flap.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 3 Dec 2021 @ 5:49pm

    Because when it happens to you its something you deal with, but when it happens to US laws need to change you ignorant peons.

    People afraid of looking like they are against something willing to support something completely unconstitutional on its face.
    The founders would have horse whipped them.
    But hey we live in soundbite policy where people only listen to the soundbite claiming they are against law & order rather than they are supporting the most basic law & order of the land.

    Mike, we'll always have Ghetto Girl #3.

    reply to this | link to this | view in chronology ]

    • icon
      ECA (profile), 4 Dec 2021 @ 2:41am

      Re:

      we live in a nation where 1 side keeps trying to get rid of the constitution, GET the corps in charge, Wonder why restaurant worker dont want 1/2 min wage and shared tips.
      The other side was never taught HOW the gov. is supposed to work. the parents were working to hard in the last 2 generations. Let alone notice that laws created WERE NOT being enforced for any sort of equality or Federal justice in this nation.
      WE have been at war With Everyone and every nation for so long, it was funny to hear from other people in other nations WHY they hate this nation. We sell to both sides in all the other wars that other fight. We have taken over and killed rulers in the name of democracy. WHY? Because the corps wanted what was left, after we installed a 'Friendly' to USA leader.
      And any nation we/corps dont want, WE DONT HELP.

      reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 3 Dec 2021 @ 5:58pm

    No one wants to look like they're opposed to protecting federal judges

    Oh goodie, now we know that the follow-on to "Think of the children" is "... and the judges". Nice to see them lumped into the same class of society

    ... if it were challenged, would a federal judge -- effectively the only direct beneficiaries of the bill itself -- come out and admit to the constitutional problems with the bill?

    I think it's much worse than that. A moral judge would have to recuse him/herself, because of the obvious self-interest. Which then says that any judge who does declare a verdict of "It's a good law" is automatically suspect as to moral turpitude.

    Besides which, even if J. Salas' info was published on a website, that would not be the first place an attorney would look for it - they would just use the ABA's own Directory.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2021 @ 11:22pm

    instead of using the opportunity to pass a federal data privacy law for everybody (GDPR-like or something)... they just want to carve special privacy rules for themselves and practically telling 'fuck off, you don't matter' to everyone else's privacy.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Dec 2021 @ 12:18am

    Meanwhile in Singapore...

    "Congrats, you're finally doing the right thing."

    reply to this | link to this | view in chronology ]

  • icon
    basstabs (profile), 4 Dec 2021 @ 12:33am

    I’m a bit confused as to the argument here. How is it “pretty clearly unconstitutional” to bar the publication of personal information of other people without their consent, or at least date of brith specifically? Is it unconstitutional to bar the publication of home addresses, or social security numbers? Is doxing protected by the first amendment?

    If you’re advocating for the first amendment to protect the nonconsensual disclosure of any privileged personal information, then you’re “pretty clearly” a lunatic. Can we out closeted LGBT people to their families? (Or their larger communities?) Can we tell people where exonerated defendants in high profile cases live? Can we enable the identity theft of our political adversaries? Given that you’re not a lunatic, then we seem to agree that there must be some line between what information is acceptable to publish and what is not.

    If home addresses are off limits, then full date of birth should be as well: multiple states, including Florida, Pennsylvania, and New York, provide online voter registration lookup applications that take a zip code, a county, a name, and a DOB. Knowing where a judge works narrows down zip code and county to a few options, and the name is already known. These lookups provide you with information like your voting precinct and registered address. Therefore, in many scenarios, providing a DOB empowers people to find a home address. We can of course point out that such low security applications are a nightmare that should not exist, but that doesn’t negate the fact that they exist and are readily usable by nefarious actors. DOB, regrettably, has been used as critical identifying information so widely that it shouldn’t be open season to bandy them about under the guise of free speech.

    Of course, I will point out the obvious, which is that this protection should not be unique to judges.

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 4 Dec 2021 @ 12:53am

      Re:

      I’m a bit confused as to the argument here.

      I see that.

      How is it “pretty clearly unconstitutional” to bar the publication of personal information of other people without their consent, or at least date of brith specifically?

      Because the 1st Amendment bars restrictions on speech by the government.

      Is it unconstitutional to bar the publication of home addresses, or social security numbers? Is doxing protected by the first amendment?

      Yes, it is, in fact, protected by the 1st Amendment.

      If you’re advocating for the first amendment to protect the nonconsensual disclosure of any privileged personal information, then you’re “pretty clearly” a lunatic.

      You may want to sit down, because I have news for you about the 1st Amendment that is apparently going to make you sad. But, let's back up a second, because of the sneaky linguistic drift trick you did. You added here "privileged" to "personal information." Someone's address. Or birthdate, is not "privileged" information in any sense of the word.

      Can we out closeted LGBT people to their families? (Or their larger communities?)

      I mean, it would be fucked up socially and morally, but it's perfectly legal.

      Can we tell people where exonerated defendants in high profile cases live?

      Same as above. It is absolutely legal to do so.

      Can we enable the identity theft of our political adversaries?

      Identity fraud is a crime. But sharing information about someone is not.

      Given that you’re not a lunatic, then we seem to agree that there must be some line between what information is acceptable to publish and what is not.

      No. You do not seem to understand how the 1st Amendment works.

      If home addresses are off limits

      They're not. I don't know how old you are, but it wasn't that long ago that everyone's home address was easily accessible via a document called "the white pages." Home addresses are factual information. It may be dickish to publicly share it, and you may face social consequences for it. But it is not illegal. You can not be punished by the state.

      The rest of your comment simply reflects your apparent lack of understanding about the 1st Amendment and your very very false belief that it is somehow against the law to share someone's address or date of birth. It is not.

      reply to this | link to this | view in chronology ]

      • icon
        basstabs (profile), 4 Dec 2021 @ 8:24am

        Re: Re:

        It is clearly not currently against the law, given that this law is currently being written to bar doing so only for judges.

        However, the first amendment is not blanket protection on any arbitrary speech. One could make the same argument about fighting words: the 1st amendment prohibits the government from restricting speech, and yet Chaplinsky v. New Hampshire affirmed a specific type of speech that is not protected. Obscenity is speech, and yet we have the Miller test. Clearly, the Supreme Court has affirmed that the government can and should limit speech in narrow ways based on weighing the rights of the individual versus the good of society. Whether or not something is constitutional or unconstitutional, not just in regards to speech, can be dependent upon the court viewing existing law in a new light. (From Baker v. Nelson to Obergefell v. Hodges.)

        I am not a lawyer, so none of these statements are me asserting what the law IS, but questioning what the law should be. Should the publication of factual information be allowed cart blanche? Passwords (and/or their hashes), social security numbers, bank account numbers, lock combinations, security question answers, encryption keys? Those are all factual information. As you point out, the act of using that information to commit crimes ranging from identity theft to robbery would be, well, criminal, so why would the careless or malicious publisher of the critical information (without which the crime would not be possible) not be an accessory?

        Suppose I had published the factual home address of Richard Jewell during the fervor of the 1996 Olympic bombing and someone else had used that information to perpetrate a violent attack. Of course, a reasonable person may conclude that this is incitement to imminent lawless action and therefore not constitutionally protected speech. (Brandenburg v. Ohio) If I could have, however, successfully avoided any punishment by claiming protection of the first amendment, then ipso facto that’s a flaw of the first amendment.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 4 Dec 2021 @ 1:11pm

          Re: Re: Re:

          Son there was a point where you should have stopped digging.

          reply to this | link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 4 Dec 2021 @ 10:19pm

          Re: Re: Re:

          It is clearly not currently against the law, given that this law is currently being written to bar doing so only for judges.

          So... you went from "you must be a lunatic to think this is legal" to "of course it's legal now..." in just two comments. Impressive.

          However, the first amendment is not blanket protection on any arbitrary speech.

          This is true. And meaningless. See Trope 3: https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage -of-free-speech-controversies/

          There are a few VERY LIMITED, and VERY WELL DEFINED exceptions to the 1st Amendment. There is no setup for adding more, and the Supreme Court has made it quite clear it's not particularly interested in expanding those categories. It does not "weigh" 1st Amendment issues with a balancing test (see trope 5 in the link above).

          Also, don't cite Chaplinsky to anyone versed in the 1st Amendment unless you want to show that you don't know what you're talking about.

          Suppose I had published the factual home address of Richard Jewell during the fervor of the 1996 Olympic bombing and someone else had used that information to perpetrate a violent attack. Of course, a reasonable person may conclude that this is incitement to imminent lawless action and therefore not constitutionally protected speech.

          Lol, no, that does not come even remotely close to the Brandenburg test and, no offense, you look totally ignorant if you think it is. It's not a "reasonable person" standard. It is -- like ALL of the limited exceptions to the 1st Amendment -- clearly defined. And publishing an address is not it.

          Please stop. You look silly.

          reply to this | link to this | view in chronology ]

    • icon
      astrochicken (profile), 6 Dec 2021 @ 3:18am

      Re:

      A ton of personal information is already available online, from the government itself. Many county governments have publicly-accessible records where you can look up a person's name and get their address, house value, and property taxes.

      You might think all your personal information is private, but a lot of it isn't. You didn't know, so sorry, but now you do.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2021 @ 9:50am

    "This is true. And meaningless."

    uhh, so are there valid 1A exceptions or not ?
    (your Trope3 reference is unclear)

    1A specifies NO "exceptions" whatsoever.

    The only legitimate constitutional method to add exceptions to 1A is by formal amendment to the Constitution.
    That has never happened.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 6 Dec 2021 @ 7:19pm

      Re:

      uhh, so are there valid 1A exceptions or not ?

      Yes, but it doesn't matter. The fact that there are exceptions doesn't mean that there must therefore be other exceptions. There are exceptions, but this isn't one of them, and there's no reason to think it ever will be.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2021 @ 2:19pm

    Good law vs. Bad law

    It's been said that any time a bill in a legislature is named after someone who died, you know there's going to be problems with the bill. That's because most of those bills are responses to truly horrific or tragic circumstances, but then our natural inclination is to go too far in diminishing the rights of the public in response to a single horrific scenario.

    There's a judicial / legislative principle, obviously widely ignored, that

    Hard cases make bad law.

    reply to this | link to this | view in chronology ]

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