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

Free Speech

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.

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