The Daniel Anderl Judicial Security and Privacy Act of 2020 (S. 4711 and H.R. 8591) is a proposed legislative response to a terrible tragedy, the death of Judge Esther Salas’ son at the hands of a former litigant.
But as introduced, the bill represents an overcorrection that threatens First Amendment-protected speech.
The push for legislation is understandable, and there are several positive aspects of the bill. But Congress must be careful not to pass a deeply flawed bill, even in the wake of a tragedy.
The Bill Would Make Reporting on Judicial Malfeasance Impossible
In attempting to protect judges’ and justices’ privacy, the bill threatens First Amendment protected speech. Sections 3 and 4 are so broadly drawn that if the bill passes, it would preclude certain reporting on potential bad actors in the judiciary.
For example, publishing information that a judge or justice was gifted a vacation property by a person seeking judicial favor would make an organization liable under the bill. The same is true for an organization that reported on a judge receiving a car as a bribe. Troublingly, the bill’s text would also penalize reporting about potential judicial favoritism of certain law firms and businesses that employ a judge’s relatives – a clear violation of ethics that the public has a right to know about. Under this bill, reporting the employer of a judge’s immediate family member would open a reporter or a watchdog organization to civil liability for alerting the public.
The bill gives the Justice Department the authority to request reporters unpublish these types of facts, and if they don’t comply with 72 hours, sets available civil penalties at “not less than $10,000” per violation. In addition to this being unconstitutional prior restraint, it would encourage self-censorship by media companies and nonprofits.
It may not be the intent of the bill, but the potential to chill free speech and prevent the publication of original research for fear of liability is too great.
The Bill Seeks In Part to Solve a Problem that Does Not Exist
Under the status quo, nearly all of a judge or justice’s personally identifiable information is excluded from annual financial disclosure reports. The definition of “personally identifiable information” in the bill includes primary and second home addresses, social security numbers, and children and spouses’ names, all of which are already protected from disclosure.
Additionally, the Administrative Office of the U.S. Courts already has the authority to redact certain personally identifiable information from judges’ records. For example, if a judge’s financial disclosure contains information about their child’s school, the AO can and does redact those details before making the document publicly available.
Further, a judiciary source tells Fix the Court that since last year, some judges have been advised to redact far more information than the current law allows and more than this bill would cover, suggesting that the courts are already overcorrecting.
Judges Helped Write the Bill. That Doesn’t Automatically Mean It’s Constitutional
This is a playbook we’ve seen before: the Judicial Conference of the U.S. and the AO (A) comprise judges and (B) have a history of writing unconstitutional regulations anyway.
Just two years ago, the AO oddly tried to stop its employees from donating to political candidates, flouting the First Amendment. The agency was sued, and it lost in federal court.
The Bill Contains Real Solutions, Making the Questionable Portions Unnecessary
The bill buries potential real reforms under its First Amendment-threatening provisions. Fix the Court supports the parts of the bill that would increase funding for threat detection, better home security systems for judges and improved courthouse security.
But there is no reason that the safety of federal judges and their families cannot be secured without putting First Amendment protections at risk.