Background
Michael Jackson, a retired West Virginia law-enforcement officer, brought five putative class actions against companies offering online people-search services. He alleged that the companies, including LexisNexis Risk Solutions, disclosed his home address and unpublished telephone number, along with comparable information about thousands of other protected officials, without permission and in violation of West Virginia’s Daniel’s Law.
The challenged provision, West Virginia Code § 5A-8-24(e), prohibited disclosure of protected officials’ home addresses and unpublished telephone numbers under circumstances in which a reasonable person would believe disclosure would expose someone to harassment or a risk of harm. It permitted actual damages of at least $1,000 per violation, punitive damages, attorney’s fees, and equitable relief. The district court dismissed the actions, holding the provision facially unconstitutional because it imposed a content-based restriction on speech that was not narrowly tailored.
The Court’s Holding
The Fourth Circuit affirmed. It held that disclosing addresses and telephone numbers constitutes speech protected by the First Amendment, even though the information consists of factual data. The statute was content based because liability depended on what information was disclosed and whether it concerned a judicial or law-enforcement official rather than another person. Strict scrutiny therefore applied.
Although protecting judicial and law-enforcement officials is a compelling governmental interest, the court held that § 5A-8-24(e) was not the least restrictive means of advancing it. The provision imposed liability without requiring knowledge that the disclosed information concerned a protected person and without requiring the protected person first to request removal. Its reasonable-person condition did not meaningfully narrow liability because publishing personal information online inherently creates some exposure to harassment or harm. The resulting risk of automatic liability encouraged speakers to suppress lawful information broadly.
The court rejected Jackson’s arguments for less demanding scrutiny. The truthful-publication cases he invoked would not displace strict scrutiny; he did not establish a historical tradition exempting comparable privacy restrictions from ordinary First Amendment analysis; and an economic motive did not make all regulated disclosures commercial speech. The court accordingly held § 5A-8-24(e) facially invalid under the First and Fourteenth Amendments.
Key Takeaways
- Online publication of factual data, including home addresses and telephone numbers, is speech protected by the First Amendment.
- A restriction keyed to both the type of information disclosed and the identity or occupation of the person concerned is content based and subject to strict scrutiny.
- West Virginia’s provision failed narrow tailoring because liability could attach without the publisher’s knowledge or a prior removal request, creating a substantial risk of self-censorship.
Why It Matters
The decision does not hold that governments are powerless to protect judges, law-enforcement officers, and their families from dangerous disclosures. It holds that content-based privacy laws must regulate protected speech through the least restrictive means available.
The Fourth Circuit specifically identified notice-and-removal procedures as one possible way to narrow such laws, while emphasizing that notice is not necessarily the only constitutionally permissible approach. Legislatures and businesses handling public-record data must account for the court’s distinction between a targeted protective regime and automatic liability for unwitting publication.