Legislation to give federal judges the power to take down internet and social media posts containing personal information about them hit a stumbling block Wednesday, after a Republican senator insisted the measure be broadened to give similar protection to details about members of Congress.
Sen. Rand Paul of Kentucky, who was the victim of a serious attack at his home by a neighbor in 2017, said lawmakers also deserve to have information about their homes and family members shrouded from public view.
“I really think that this is important that we protect addresses for our judges, but it’s also important that we do this for our elected officials,” Paul said on the Senate floor. “The Capitol Hill police are not stationed at our homes where our families live while we serve in Washington. … There’s no reason why we should do this only for one branch of government.”
The lead sponsor of the bill, Sen. Bob Menendez (D-N.J.), said the Kentucky Republican was pursuing “a laudable goal” in trying to protect members of Congress but their concerns should be dealt with a separate bill.
“I personally think it is more appropriate to legislate in another bill,” Menendez said.
The standoff appears to have shelved the bill’s chances of passage this year with Congress expected to leave town shortly for the holidays. Menendez sounded bitter Wednesday that changes to the bill made at the request of Republicans had not cleared the legislation for passage by unanimous consent.
“It never seems to be enough and it’s unfortunate that the federal judiciary will pay the price of this recalcitrance,” he said.
Menendez and Sen. Cory Booker (D-N.J.) have taken key roles pushing the legislation in the wake of the murder of the 20-year-old son of a federal judge in New Jersey, Esther Salas, by a disgruntled attorney who showed up at her home in July 2020 with a gun. The bill is named in memory of Salas’ son, Daniel Anderl.
In arguing for the legislation Menendez did not mention President Donald Trump’s verbal attacks on the judiciary or how those can inflame members of the public, but said the purpose of the legislation is to safeguard the freedom of judges to rule without fear or favor.
“This legislation is about standing up for the independence of our federal judiciary and the safety of all those who serve it,” Menendez said.
An initial proposal by federal court officials earlier this year raised concerns among some transparency and First Amendment advocates. The judiciary sought “limited criminal enforcement authority,” as well as a procedure to force the removal of information posted on the internet about judges and their families.
Critics faulted the breadth of the categories of information eligible for restriction, which included things like credit card and vehicle license plate numbers, as well the name of the employer of a judge’s spouse, addresses of primary and secondary homes, and affiliations with clubs and religious groups.
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Lawyers said it was hard to see a public interest in discussing some details, like credit card numbers, but they said that the other ties can expose conflicts of interest that can affect how a judge does his or her job.
“People need to be able to talk about whether a judge needs to recuse due to some conflict of interest,” University of California law professor Eugene Volokh told POLITICO in September. “These are perfectly legitimate things for people to talk about.”
The current version of the legislation being advanced by Menendez and Booker doesn’t seek to restrict online posting about religious and civic groups a judge may belong to, but does cover most of the other data the judiciary asked to be able to restrict. The proposal for criminal enforcement power and fines for violators of a takedown order are also absent from the current version of the bill, which allows a court to order injunctive relief and to order a violator to pay unspecified “costs,” as well as attorney’s fees.
The New Jersey senators have also added an exemption for disclosure of that information when it “is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.”
Menendez said on the Senate floor that the changes were the product of discussions with various officials and organizations, including the American Civil Liberties Union.
“Together, we carefully updated legislative language in order to uphold the First Amendment right of the press to report on matters of public concern and balance that right with our urgent need to better protect the safety of federal judges and their families,” Menendez said.
While the ACLU welcomed the changes, the group said in a letter to lawmakers last week that it is not endorsing or opposing the legislation for now and it warned of a possible chilling effect.
“We remain concerned that the bill continues to be vulnerable to constitutional challenge. We believe it is incumbent upon us to explain these concerns, though we are not taking a formal position on [the bill] at this time,” the letter said. “The First Amendment protects speech generally and not solely when it relates to matters of public concern," noting that the legislation "could lead speakers to self-censor."
The revised legislation still creates a system where federal judges could be asked to rule on whether their colleagues’ personal details were invoked in a debate “on a matter of public concern,” or were irrelevant to such discussion. And while the bill explicitly applies to social media posts, it is unclear how the exception would work in the case of short-message sites like Twitter, where information about a judge might be posted without much in the way of additional context in the same post.
The bill would allow judges to compile lists of personal data they wish to restrict and submit them to court administration officials in Washington, who would then sweep social media and internet sites for such information. Court administrators would be able to issue takedown orders on the judges’ behalf.
As Paul called for the legislation to cover lawmakers, he said he suspected Menendez and others would empathize. “I don’t know about you, but routinely the sheriff and police have to come to our house for threats to my house and I’m not alone,” Paul said. The junior senator from Kentucky also complained about news coverage that included aerial shots of his house.
“They put … a satellite picture of my house on the nightly news. You know, basically pointing out where every crazy person in the world can go to find my house. So, I mean we do need to do something,” Paul said.
A companion bill was introduced by Rep. Mikie Sherrill (D-N.J.) in October and is pending before the House Judiciary Committee.