EDITORIAL: Bill to shield federal judges has free speech issues

Every parent’s worst fear is losing a child. For U.S. District Judge Esther Salas and her husband, Mark Anderi, that horrific fear was realized on July 19, 2020.

That night, the couple were celebrating the 20th birthday of their son, Daniel, when a gunman posing as a delivery driver rang the doorbell of their New Jersey home. He shot Daniel to death and Anderi three times, wounding him. The gunman, a self-described “anti-feminist lawyer” named Roy Den Hollander, was found dead a day later with a self-inflicted gunshot wound.

According to ABC News, Hollander, who had appeared in Judge Salas’ courtroom months earlier, had compiled a detailed dossier about the judge, her family and other people he wanted to kill, including at least one other judge. Hollander also published an autobiography online, in which he attacked Judge Salas’ ethnicity.

The tragedy motivated Judge Salas to push for passage of “Daniel’s Law,” which makes it a crime to publish the personal information of New Jersey judges and law enforcement officials. The proposal became law in the Garden State in November — and a similar proposal is making its way through Congress.

While obviously well-intentioned, there are serious free speech concerns about such legislation.

As Thomas Barry noted last week in The Wall Street Journal, the federal proposal could criminalize posting online even basic information about federal judges. Posters could be subject to lawsuits, as well as legal fees and court costs.

The bill carves out exceptions for certain forms of media — newspapers, TV, etc. — but such an arbitrary distinction is unlikely to survive a First Amendment challenge. Mr. Barry writes that the Supreme Court has repeatedly struck down laws that block the publication of true but sensitive information, arguing that such laws “seldom can satisfy constitutional standards.”

Judge Salas is a public figure. Mr. Barry highlights that accessing truthful information about public figures can help drive discussion regarding matters of public concern, even if that truthful information is never specifically used in a commentary or news story. For instance, a recent Journal report revealed numerous judicial conflict-of-interest violations regarding stocks held by judges, as well as their spouses and minor children. A federal law that made it illegal for online databases to include basic information about members of the federal judiciary, Mr. Barry asserts, would seriously compromise such important investigations.

Mr. Barry is correct. What happened to Judge Salas is an unspeakable tragedy. But efforts to protect federal judges — or anyone else, for that matter — must still be mindful of our constitutional protections.