I’ve previously written about the serious First Amendment problems with the “judicial privacy” bill which was recently added to the National Defense Authorization Act. If passed into law, every American would risk facing mandatory takedown orders for posting basic facts about federal judges online, including their birthdates, the colleges attended by their children, and the jobs of their spouses. The bill stifles access to relevant information about public officials, arbitrarily limits its restrictions to the internet but not other media, and allows speech to be suppressed even if it poses no possible security threat. For all these reasons, as I wrote late last year in the Wall Street Journal, the law would clearly violate the First Amendment.
Ironically, because of the serious constitutional problems with the bill as currently written, its provisions restricting speech would likely be struck down by the courts and thus fail to accomplish their stated goal. Members of Congress who want to protect judges in those rare cases where public information does pose a real threat should support a different approach, one that would evaluate takedown requests on a case-by-case basis and thus comply with Supreme Court precedent.
In Florida Star v. B.J.F. (1989), the Supreme Court struck down a Florida law forbidding the publication of the names of rape victims in mass media. The Court clarified that punishments for publishing lawfully obtained truthful information may be imposed “only when narrowly tailored to a state interest of the highest order.” The Florida law did not meet this “narrowly tailored” standard for several reasons, including that Florida imposed liability “regardless of whether the identity of the victim is already known throughout the community” and that Florida did not ban other means of communicating the names of victims outside mass media, such as person‐to‐person gossip.
As the Court further emphasized, “categorical prohibitions upon media access” are impermissible “where important First Amendment interests are at stake.” The Florida law did not allow for “case‐by‐case findings” as to the harm of a particular disclosure, which must take into account whether the information is already public. As the Court noted, punishing the “dissemination of information which is already publicly available is relatively unlikely to advance the [government’s] interests.”
The proposed federal bill does not allow for the type of “individualized adjudication” that the Florida Star Court explained is “indispensable” when the government aims to ban truthful speech. So how might a federal privacy bill comply with the requirements of the First Amendment, as spelled out by the Court in Florida Star? First and most important, the ability to send a takedown notice should be adjudicated on a case-by-case basis. Rather than defining broad categories of information that can be censored, a more narrowly tailored bill would create a legal procedure in which evidence could be presented to a judge that a particular piece of information poses a specific and concrete threat, so that there is “a state interest of the highest order” in suppressing that particular piece of information for the sake of safety.
Courts are already equipped to weigh evidence and act quickly when litigants request temporary restraining orders and preliminary injunctions, and a request for a court order to take down certain information could follow similar procedures. Crucially, unlike in the currently pending bill, the right to send a takedown order should only be granted after a court has signed off, and publishers of information should not be on the hook for potential court costs if they defend their right to publish.
What type of evidence would a judge weigh in such an individualized hearing? Whoever is requesting that particular information be censored should have to show a compelling safety need for doing so—for example, some evidence that a threatening person is attempting to stalk them. In addition, there would have to be a strong likelihood that censorship would actually work. If an individual’s home address has already been printed in thousands of copies of the white pages, for example, removing that address from a single website won’t put that genie back in the bottle. On the other hand, if a person has recently moved to a new address and that address is not yet publicly known, then it might be plausible that this new address could in fact be kept secret.
Finally, any suppression of information by court order would have to be thorough. Selectively censoring one source of information while allowing others to disseminate the same fact would not just be arbitrary and unequal treatment, it would also show a lack of commitment to the government’s goal. As the Court put it in Florida Star, when the government “attempts the extraordinary measure of punishing truthful publication in the name of privacy, it must demonstrate its commitment to advancing this interest by applying its prohibition evenhandedly, to the smalltime disseminator as well as the media giant.” The pending bill fails in this respect because it can reach only information on the internet, not in print or other media. When it comes to censoring for the sake of safety, the right approach for any particular piece of information is all or nothing.
Finally, if such a court procedure for evaluating takedown orders were created, there is no principled reason why its protections should be limited to just federal judges, or even to just federal officials of all kinds. In the rare cases where personal safety does outweigh speech interests, it shouldn’t matter what title, if any, the threatened person holds. Of course, it may be pragmatically easier to start by creating a procedure whose protections are limited to a narrower class, since any such law would be experimental. But once the right balance is struck, its protections should be available to anyone.
On at least three occasions, states have passed laws like the pending federal bill that allowed public officials to send takedown orders for their personal information without case-by-case adjudication. And in all three cases, federal courts have held the laws to be likely in violation of the First Amendment. To enact privacy protections that can survive court scrutiny and actually achieve their intended goal, Congress should go back to the drawing board and craft a bill that carefully balances personal security with freedom of speech.
