West Virginia cop fights free speech ruling in ‘Daniel’s Law’ case

Fourth Circuit judges appeared skeptical during oral arguments Tuesday that West Virginia's version of "Daniel's Law" passed constitutional muster.(CN) — The Fourth Circuit weighed the constitutionality Tuesday of a West Virginia law that prohibits publishing the home address or personal phone number of criminal justice officials and their family members.Michael Jackson, a retired law enforcement officer, argues the website Whitepages and other “people search” businesses are violating the state’s 2021 “Daniel’s Law” by publishing his home address and personal phone number online.The law is named for U.S. District Judge Esther Salas’ son, who was fatally shot at the family’s New Jersey home by a disgruntled attorney. It is modeled on a federal law also enacted in 2021.Senior U.S. District Judge Michael F. Urbanski dismissed Jackson’s suit and four related cases last year on constitutional grounds.Urbanski determined that West Virginia’s law was a content-based restriction on speech that failed a strict scrutiny test. The law served a compelling state interest, the Barack Obama appointee wrote in an opinion, but it was not narrowly tailored.Similar laws in other states require a person to provide notice to a company before they can sue to have their information removed from a site, Urbanski observed. In West Virginia, a person does not need to provide notice before filing suit.“West Virginia’s law thus places the burden on the would-be speaker to overcome the impediment to speech, rather than placing the burden on those who would like to advance a countervailing interest in safety,” he said.Urbanski noted there are other methods to protect public officials, too, including criminal laws that punish anyone who publishes private information online in order to harass them.The appellate judges seemed to agree with Urbanski’s assessment during Tuesday’s hearing.U.S. Circuit Judge Pamela Harris said the statute appeared to penalize websites for publishing information that could reasonably cause harm to any person, not only criminal justice officials.“That’s a bunch of people that are outside the purported purpose of the statute,” the Obama appointee said.Philip L. Fraietta, representing Jackson from the Bursor Fisher firm in White Plains, New York, said the law was intended to cast a “wide net” to include the immediate family members of criminal justice officials.U.S. Circuit Judge Paul Niemeyer observed that the law seems to outlaw the core function of Whitepages and similar businesses.The George H.W Bush appointee said if a business used public records to collect the phone numbers and addresses for 10,000 people, they would surely possess information about law enforcement officers and judges, or their family members — but how would they know whose information to exclude from publication?“I mean, it seems to me they basically can’t do that under the statute,” he said.Harris added the law vaguely prohibited exposing a person to “harassment or risk.”“That does seem sort of tautological,” Harris said. “You put it on the internet and you have ‘exposed’ the person. You don’t have to know that any harm will potentially materialize.”Samir Deger-Sen, a New York-based partner at Latham Watkins representing Whitepages, said West Virginia’s version of the Daniel’s Law was the most restrictive civil liability scheme in the country.“It creates draconian statutory penalties for disclosure by any person of an address or phone number of anyone who’s ever worked in one of dozens of positions in West Virginia or their family members,” he said. “And, as we’ve been discussing, the law is unique in lacking any notice or awareness requirement.”U.S. Circuit Judge Steven Agee, a George W. Bush appointee, asked Deger-Sen if the West Virginia law would pass constitutional muster if lawmakers amended it to include notice and awareness requirements.Deger-Sen said he would still be concerned that West Virginia’s law, unlike the federal law, applied to “literally everyone in the world.” He also pointed to significant case law protecting companies from republishing information that has already been made public by the government.“There are nine states that have these laws, and the federal Daniel’s Law,” Deger-Sen said. “None of these have been questioned or challenged, except for this statute in New Jersey, and this is by far the most extreme statute in terms of its speech suppression in the country.”Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads