Update: Judicial Security Bill Now Includes Language That's Less Problematic From a First Amendment Perspective
By Tyler Cooper, FTC senior researcher
We at Fix the Court have long pushed for greater transparency, access and accountability in the federal courts. As part and parcel to those efforts, we have called for additional security protections for judges.
The public should have greater access to public institutions, and no harm should befall those serving in places of public power.
The most effective way to achieve the later would be to dispense with any attempt to accomplish the former. We could make the identities of judges a state secret, house their chambers in disguised and remote locations and have them never appear in person at a proceeding. In that world it would be very hard for anyone to do harm to a judge. It would likewise be very difficult to know whether your judge had any financial ties to a litigant, had his or her travel reimbursed by a litigant or amicus or owed a debt to a related entity.
In a free and fair democracy, the people must not be barred from information about those that wield public power, and they must not be punished for simply sharing that information.
The Daniel Anderl Judicial Security and Privacy Act of 2020 (S. 4711) seeks to curtail threats against judges by barring the malicious spreading of personally identifiable information. S. 4711 is a direct response to a horrific event last summer when an assailant, impersonating a delivery driver, went to the home of a District of New Jersey judge, Esther Salas, and shot and killed her 20-year-old son, Daniel Anderl, and wounded her husband, Mark Anderl.
Initially, and as we wrote about previously, the bill went too far in threatening First Amendment protected speech. Sections 3 and 4 were so broadly drawn as to preclude certain reporting on potential bad actors in the judiciary. (More on that here, “Beware a Judicial Security’ Bill That Flouts the First Amendment.”)
We and other legal nonprofits brought this concern to the Senate Judiciary Committee, which, working with the Administrative Office of the U.S. Courts, has made changes to the original language to address these concerns. One key improvement: adding language exempting the removal of personal information when that information is relevant to the public interest. In other words, Fix the Court, which periodically learns about and publishes information on the unethical behavior of judges, and other watchdog groups and media should be in the clear.
That said, we are still a bit concerned as to how these determinations would be made in practice, so we’re not yet going to endorse this bill. (Last year, we did endorse H.R. 4258, the Reauthorizing Security for Supreme Court Justices Act of 2019, which became law.)
We do want to highlight two other sections we support: sections 6 (Home Intrusion Detection System Program), and 7 (Training And Education) are laudable as they provide judges security without encroaching on the public’s rights. Section 6 provides the authorization for funding home security measures, while section 7 provides the authorization for funding for educating judges on best practices for themselves to take to ensure their own personal security.
Finally, toward the end of the bill, there remains in the new draft an item where we remain concerned. To us it seems as if the language granting the AO the authority to provide appropriations for “threat management capability” (which appears to largely be monitoring social media for personally identifiable information of judges) is overbroad.
In the next draft, whether that’s this Congress or next, we’d rather that be more narrowly tailored to the goal of preventing harm to judges and their families.