If the head of the police department in your town lived so far away that he couldn’t be bothered to attend city council meetings and other community events, you’d want to know about it, right?
That’s exactly what New Jersey journalist Charlie Kratovil thought when he used a public record to reveal that Anthony Caputo, the New Brunswick, New Jersey, police director and head of a powerful city board, actually lived more than two hours away, in Cape May.
As thanks, Kratovil got a cease-and-desist letter from Caputo, who has since retired, threatening him with civil fines and even criminal prosecution under a state statute known as Daniel’s Law that prohibits the publication of the home address or telephone number of certain public officials.
Now, a new decision by New Jersey’s court of appeals in a case brought by Kratovil over Daniel’s Law has set a concerning precedent that could embolden lawmakers in the state and elsewhere to take up the censor’s pen against journalism.
Kratovil, represented by the ACLU of New Jersey, argued that Daniel’s Law was unconstitutional as applied to his reporting. While he hadn’t yet published Caputo’s exact street address in his reporting, he argued that prohibiting him from doing so violated the First Amendment.
The lower court and court of appeals rejected Kratovil’s argument that applying Daniel’s Law to his reporting violates the First Amendment. The appeals court concluded that the government has a compelling interest in protecting public officials from threats that could occur if their addresses are revealed. It also said that publishing Caputo’s exact address isn’t in the public interest, because all that really matters is the fact that he lives in Cape May, which the city of New Brunswick and Caputo begrudgingly conceded Kratovil could publish.
Laws that restrict truthful reporting are a bad idea
Protecting public officials from safety threats is important. But the answer isn’t to restrict truthful reporting. Kratovil’s dispute with Caputo shows exactly why government secrecy laws are a bad idea.
When we give officials the power to tell journalists what they can and can’t print, even in the name of privacy, officials inevitably try to stop reporting that they find embarrassing or inconvenient. That’s precisely what happened in this case.
When Kratovil first reached out to Caputo to ask if he lived in New Brunswick, the police department responded that his place of residence couldn’t be released under Daniel’s Law. Caputo then sent his cease-and-desist letter after Kratovil, at a city council meeting, said the street name where Caputo lived in Cape May, not his exact address.
Using a broad interpretation of Daniel’s Law, Caputo tried to bully Kratovil from reporting that he lived too far away to regularly attend city meetings. Caputo and the city didn’t change their tune until they were sued and it became clear how bad it would look to argue that a reporter can’t even name the city where the director of police lives.
But other journalists might not have the resources to fight back like Kratovil did. New Jersey officials who want to kill a news story raising questions about where they live, questionable real estate deals, or potential conflicts of interest can use Daniel’s Law to threaten reporters with fines or even jail time every time they want a news story killed.
Government secrecy laws like Daniel’s Law open the door to government censorship, either in law or through official pressure.
Court gets it wrong on the First Amendment
These kinds of government secrecy laws are also unconstitutional, despite what the New Jersey appeals court held in Kratovil’s case.
Kratovil got Caputo’s address from a public record. The Supreme Court has specifically held that a reporter can’t be held criminally or civilly liable for publishing truthful information obtained from public records, even in the face of privacy concerns.
The appeals court tried to brush Supreme Court precedent aside by deciding that Caputo’s exact address isn’t a matter of public concern. But being allowed to report where an official lives in vague terms isn’t as powerful as being able to prove it with specific information from public records, especially in an age when people often try to discredit journalism they dislike by labeling it “fake news.”
The First Amendment also requires that Daniel’s Law doesn’t restrict more speech than necessary to serve its goal of protecting public officials. But Daniel’s Law prohibits publishing an official’s address in the newspaper or just to a neighbor and regardless of the actual risks. It also doesn’t consider any alternatives, like providing additional protection to officials who are threatened.
Finally, the court of appeals said that Kratovil was not prohibited by Daniel’s Law from reporting Caputo’s address, because he remained free to publish it and face punishment after the fact. This was, essentially, the legal equivalent of, do you feel lucky, punk?
But numerous courts — including the Supreme Court — have held that government officials who try to shut down speech by threatening sanctions are imposing a prior restraint. When Caputo — the head of the police department — sent a letter to Kratovil threatening him with civil and criminal prosecution for publishing his address, it was a prior restraint. No journalist would feel free to try their luck publishing the address in the face of such a threat.
Copycat laws could be next
Kratovil has vowed to appeal to the New Jersey Supreme Court. It’s essential that he does, not just to challenge the law in New Jersey, but to stop a wave of copycat laws from springing up around the country.
Lawmakers are clamoring to make information about themselves and their fellow government officials off limits to the public. Congress previously enacted a federal equivalent of Daniel’s Law that bans basic facts about judges from being reported online. Last summer, it tried to sneak an equivalent provision into national defense legislation that would have censored information about members of Congress. That attempt failed, thankfully.
States other than New Jersey are also considering laws similar to Daniel’s Law. Maryland, for example, is working on a bill to prohibit the personal information of judges from being published.
These bills are popular because people rightfully want government officials to be safe. But that safety can’t come at the expense of the public’s ability to oversee the people who govern or police them. If upheld, New Jersey’s Daniel’s Law may become a model for chilling journalism around the country. The New Jersey Supreme Court must strike it down.
