Congress wants to make it even harder to hold judges accountable
Two things can occur at the same time when Congress is involved: trying to do the right thing, but making another right thing nearly impossible to do.
Congress is considering legislation that would violate the First Amendment. While the political class treating basic constitutional guarantees like so many flies on a windshield, this particular infringement, which would prevent the publishing of what is otherwise public information about federal judges illegal.
The move is intended to protect judges and their families from harm. But as Thomas Berry writes, the Constitution, and Supreme Court precedent, stand in the way:
The impetus for the proposed legislation was a tragic event: the murder last year of Daniel Anderl, son of Judge Esther Salas, at their home. Here’s how the Daniel Anderl Judicial Security and Privacy Act would work. If you post “covered information” about a federal judge online, that judge (or a designated federal official) 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 have to take down the information and pay the judge’s legal fees and court costs.
The bill’s “covered information” includes facts often found in public directories, like the judge’s home phone number and address. It includes biographical details such as “full date of birth,” identification of minor children, and any school or employer of immediate family. The bill would thus allow significant government censorship of truthful speech about federal judges.
The Supreme Court has repeatedly struck down laws that prohibit the publication of sensitive but true personal information. In Smith v. Daily Mail (1979), the court explained that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” In Florida Star v. B.J.F. (1989), the court held that punishments for publishing lawfully obtained truthful information may be imposed “only when narrowly tailored to a state interest of the highest order.”
And the need for more – not less – information about judges and their activities comes from recent investigations into their many substantive conflicts of interest:
Federal judges are public figures. Truthful information about them can facilitate speech on matters of public concern, even when that truthful information is not itself posted as part of a commentary or news story. The Wall Street Journal recently published an investigative report revealing dozens of judicial conflict-of-interest violations. The investigation looked at the stock held not only by judges, but also by their spouses and minor children. If online encyclopedias and databases were no longer allowed to publish the employers of a judge’s family or even the names of a judge’s children, such investigations would be seriously hampered.
Keeping politicians honest is tough. Doing the same for judges is tougher – and will get more so if they can demand even basic information be removed from the public record.