Congress quietly passed legislation at the end of 2022 granting judges extraordinary censorship powers, making it harder for reporters to expose conflicts of interest involving federal judges and their families.
Just weeks later, Ginni Thomas exemplified why the legislation is such a bad idea, as she continued creating conflicts for her husband, Justice Clarence Thomas, through her right-wing activism. Fortunately, journalists need not scour the internet to learn about the Thomases — but what about the nation’s approximately 700 district court judges?
The legislation in question is the Daniel Anderl Judicial Security and Privacy Act. It’s a classic example of bad facts making bad law. Anderl was tragically killed by an assailant targeting his mother, a federal judge in New Jersey.
The legislation allows judges to demand redaction of their and their relatives “covered information” (including addresses, schools and employers) from public records, creating a backdoor Freedom of Information Act exemption outside FOIA’s appeal processes.
But somehow that’s not the most offensive part. It also empowers judges and their relatives to demand that individuals, companies and platforms censor “covered information” about themselves and their families online.
The bill’s name itself is telling — enhancing “security” for government officials is one thing, but granting them a special right to “privacy” through censorship is quite another, and the two should not be conflated. Historically, those who choose to become public figures sacrifice privacy expectations, not gain them.
Did anyone consider what Constitutional basis Congress has to grant these unprecedented rights to the judiciary? The act allows judicial families to not only request that information be taken down but demand that it not be “disclose[d] or acquire[d]” in the first place. That seems dangerously close to a prior restraint.
It also allows judges to restrict information they already put online about themselves, contravening decades of Supreme Court precedent that the government cannot claw back information that the government itself released.
The act does include an exception for when the information is relevant to a news story or a matter of public concern, but the carve-out is toothless.
- How are reporters to know that, say, where a judge’s spouse works, or who the judge bought a house from, is newsworthy if they can’t find the information in the first place?
- Any disputes over whether the public concern exception applies in a given case would ultimately be decided by a federal judge — probably one who works in the same courthouse as the judge who made the demand in the first place. Awkward water-cooler conversation.
- Disinterested online platforms have no stake in determining the newsworthiness of a post, and will comply with judicial demands rather than pay lawyers to fight about it.
Incidentally, judges themselves won’t have to worry about costs since enforcement actions can be brought at their behest by the Administrative Office of the United States Courts. We’ll also be paying to train judges on how to request removals under the new law (it’s concerning that Congress thinks judges need training to understand laws, but that’s a topic for another day).
Taxpayer-funded training to set up taxpayer-funded litigation to censor information about taxpayer-compensated judges — probably not what the drafters of the First Amendment had in mind.
It’s perplexing that this legislation got off the ground, let alone passed both houses of Congress. No one would (hopefully) suggest that mayors, governors or legislators should have a right to censor true and lawful information about themselves or their families, even though they face the same security threats as judges, if not worse. Judges’ actions are equally consequential to those of other officials and they are equally susceptible to improper influence.
The judiciary, and particularly the Supreme Court, often positions itself as so institutionally pure that it is immune to forces that corrupt other branches of government. But saying it doesn’t make it so and Americans sure don’t agree. And judges putting the Constitution aside to support legislation for their own benefit doesn’t help their credibility crisis.
The act will hopefully soon be challenged in court on First Amendment and numerous other grounds. But therein lies the problem — what happens if Justice Thomas gets the deciding vote?