Can the government censor you for wishing a judge happy birthday? It may seem absurd, but a bill that would allow exactly that 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, this law would clearly violate the First Amendment.

Here’s how the law would work. If you post “covered information” about a federal judge anywhere online, that judge (or a federal official designated by that judge) can send you a written request to take it down. If you don’t comply within 72 hours, the judge can sue you. If you lose, you not only have to take the information down but also have to pay the judge’s court costs.

What qualifies as “covered information” about a judge? Some facts covered by the bill are the type of personal financial information that none of us would want to make public: bank account numbers, credit card numbers, social security numbers, etc. But in addition, the law covers information that can often be found in public directories like the white pages, including a judge’s home phone number and home address.

And most surprisingly, the law even covers the type of basic biographical facts that one would expect to find on a judge’s Wikipedia page, including “full date of birth,” “identification of children … under the age of 18,” any school attended by immediate family (including a judge’s adult children), and any employer of immediate family (including a judge’s spouse, parents, and adult children). The bill would thus allow an enormous amount of government censorship of truthful speech about federal judges.

The impetus for these restrictions was an indisputably horrific and tragic event: the murder of Daniel Anderl, the son of Judge Esther Salas, at their home. But it’s in the wake of such tragedies that serious constitutional concerns can sometimes be overlooked, and such is the case for this bill. Securing the safety of the federal judiciary is a worthy goal, but it’s one that can and should be achieved without banning truthful speech and infringing First Amendment rights.

Several Supreme Court cases demonstrate why this bill would violate the First Amendment. In Smith v. Daily Mail (1979), the Court explained that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Thus, the Court struck down a West Virginia statute that criminalized printing the names of alleged juvenile offenders in any newspaper. The Court held that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.”

A decade later in Florida Star v. B.J.F. (1989), the 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 three reasons: (1) because Florida courts could have taken more steps to protect a victim’s name from being released; (2) because Florida imposed liability “regardless of whether the identity of the victim is already known throughout the community”; and (3) because Florida did not ban other means of communicating the names of victims outside mass media, such as person-to-person gossip.

Most recently, in Bartnicki v. Vopper (2001), the Court held that the First Amendment even protects a radio station airing an illegally intercepted cell phone call between a teachers’ union president and the union’s chief negotiator discussing contract negotiations. The Court noted that the subject of the call was a matter of public concern and that “one of the costs associated with participation in public affairs is an attendant loss of privacy.” Because the radio station that played the call had not itself intercepted it, the Court reasoned that “a stranger’s illegal conduct” did not remove First Amendment protections.

As these cases show, the Supreme Court has consistently protected the First Amendment right to publish truthful information. How then could a bill imposing such broad bans on truthful speech survive constitutional scrutiny? In a clear attempt to escape the force of these precedents, the bill does provide an exception for posting covered information about a judge “if the information is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” Because the Supreme Court’s precedents in this area have been limited to “truthful information about a matter of public significance,” defenders of the bill have argued that this exception saves its constitutionality. But in fact, this exception is not enough to satisfy the First Amendment’s requirements.

Federal judges are public officials and quintessential examples of public figures. Truthful information about them can thus help to facilitate speech on matters of public concern, even when that truthful information is not itself posted as part of a commentary or news story. For example, the Wall Street Journal last year published a bombshell investigative report revealing dozens of conflict-of-interest violations by federal judges. The investigation looked at the stock held not just by judges, but also by their spouses and minor children, all of which can amount to a violation. If online encyclopedias and databases were no longer allowed to publish the employers of a judge’s family members or even the names of their minor children, it’s easy to imagine how such investigations could be hampered in the future. Loss of access to truthful information can mean loss of the ability to produce future news and commentary.

Courts confronting state laws similar to this proposed federal bill have recognized this fact. Florida enacted a law that limited the freedom to “publish or disseminate the residence address or telephone number of any law enforcement officer.” When an online commenter posted such information about a particular officer and was charged under the law, the state argued that the post was unrelated to any matter of public concern. But a federal district court rejected this argument, explaining that “the issue of police accountability is certainly political and of legitimate public interest.” In striking down the law, the court held that the posted information was “linked to the issue of police accountability through aiding in achieving service of process, researching criminal history of officers, organizing lawful pickets, and other peaceful and lawful forms of civic involvement that publicize the issue.” And another federal court struck down a similar Washington State law, likewise holding that such information facilitates speech and civic involvement.

The reasoning that both of these courts applied to police officers applies just as much to federal judges. Access to information about public officials aids in self-governance and promotes accountability. That’s true whether or not that information is itself contained within a news or commentary article. When it comes to banning truthful facts about public officials, an exception limited to information “relevant to and displayed as part of” some other news or commentary is not a broad enough exception to evade the Supreme Court’s precedents.

Nor is the bill “narrowly tailored to a state interest of the highest order.” The bill applies only to posting covered information “on the internet.” It does not ban spreading exactly the same information in print, on TV or radio, or in person. In making this arbitrary distinction, the bill notably suffers from exactly the same narrow-tailoring problem that the Supreme Court identified in both Daily Mail and Florida Star: underinclusiveness.

In Florida Star, the law at issue prohibited using “any instrument of mass communication” to spread a victim’s name, but it did not ban “the backyard gossip who tells 50 people.” This loophole showed that the law was not narrowly tailored, because “when a State 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.” A law is unlikely to achieve its aims “without more careful and inclusive precautions against alternative forms of dissemination.” Likewise in Daily Mail, the law banned only the printing of alleged offenders’ names “in any newspaper” but not airing those same names over the radio, meaning the law did “not accomplish its stated purpose.”

Applying these principles, a federal district court preliminarily enjoined a California law that restricted publication of state officials’ information online but did not restrict it elsewhere, just like the proposed federal bill. As that court noted, the California law did “not prohibit a major newspaper or television channel from publishing the information, but would potentially prohibit an online blog with a limited audience from doing so,” which raised “serious questions about whether it is serving its intended goals.”

Further, the proposed federal bill also fails the “narrow tailoring” requirement because it 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. As the Court emphasized, “categorical prohibitions upon media access” are impermissible “where important First Amendment interests are at stake.” The Florida law was not narrowly tailored because it did not allow for “case-by-case findings” as to the harm of a particular disclosure, which would have to take into account “whether the identity of the victim is already known throughout the community.” As the Court noted, punishing the “dissemination of information which is already publicly available is relatively unlikely to advance the [government’s] interests.”

The enjoined California law was also not narrowly tailored for the same reason. It made no distinction “between acts that ‘make public’ previously private information and those that ‘make public’ information that is already publicly available.” And the law did not provide for “case-by-case oversight.” It allowed officials to send takedown orders whenever they felt threatened by the posting of their information, but it did not “require that the threat be credible or that a third-party review whether the official’s request is well-founded.”

So too with this federal bill. It makes no distinction between commonly known facts (such as those that have appeared in dozens of news or commentary articles) and previously undisclosed facts. For example, many online articles mentioned the name of the school attended by Chief Justice John Roberts’s son when Roberts delivered the school’s commencement address in 2017. Had this law been in effect at the time, those articles presumably could have stayed up under the exception for news articles. Yet, the Chief nonetheless still could have sent a takedown notice to anyone else who posted the name of the school not in a news context, despite the fact that the name of the school had become widely known. And a judge could similarly send a takedown order for information posted online even when that information is widely available in print or from other non-internet sources.

And finally, just like California’s law, the federal bill has no requirement that the posted information be found to pose any conceivable risk to a judge’s safety. Its restrictions would extend to such innocuous online posts as wishing a judge a happy 60th birthday on Twitter (thus revealing the judge’s birthdate) or congratulating a judge’s spouse for starting a new job or a judge’s child for starting college.

Remarkably, several senators at the committee hearing advancing the federal bill last year praised it as explicitly modeled on California’s law, without even mentioning that the California law had been held by a federal court to be in likely violation of the First Amendment. If passed into law, this federal bill would most likely suffer the same fate in court. Better not to go down that path at all. Congress can protect the safety of federal judges without censoring truthful speech.