Background
Michael Jackson, a retired West Virginia law-enforcement officer, filed five putative class actions against companies offering online people-search services. He alleged that they disclosed his home address and unpublished telephone number, along with similar information about thousands of other protected people, without permission and in violation of West Virginia’s Daniel’s Law.
The challenged provision, West Virginia Code § 5A-8-24(e), prohibited disclosing the home address or unpublished home or personal telephone number of a current, former, or retired judicial officer, prosecutor, public defender, or law-enforcement officer when a reasonable person would believe the disclosure would expose someone to harassment or risk of harm. It authorized actual damages of at least $1,000 per violation, punitive damages, attorney’s fees, and equitable relief. The district court dismissed all five actions, holding the provision facially unconstitutional under the First and Fourteenth Amendments because it was a content-based speech restriction that failed strict scrutiny.
The Court’s Holding
The Fourth Circuit affirmed. It held that disclosing factual information, including addresses and telephone numbers, is speech protected by the First Amendment. The provision was content based because liability depended on both the kind of information communicated and the identity or occupation of the person to whom it pertained. For example, the law could permit publication of an address as a grocery clerk’s residence while prohibiting publication of the same address as a police officer’s residence.
Although protecting judicial and law-enforcement officials is a compelling governmental interest, the court held that the provision was not narrowly tailored. Liability could arise immediately even when a publisher did not know that information concerned a protected person, encouraging publishers to suppress information about everyone to avoid inadvertent violations. The provision’s risk-of-harm language did not meaningfully narrow its reach because publishing personal information online inherently creates some additional risk. West Virginia also omitted the notice-and-removal mechanism used by Congress and other states, under which liability follows only after a protected person requests removal and the publisher fails to comply. The court emphasized that notice is one possible narrowing method, not the only constitutionally permissible approach.
Key Takeaways
- Publishing factual data such as home addresses and telephone numbers can constitute protected speech under the First Amendment.
- A disclosure restriction is content based when its application depends on what information is communicated and whose information it is.
- West Virginia’s compelling public-safety interest could not sustain a law imposing liability without knowledge or prior notice because less speech-restrictive means were available.
Why It Matters
The decision does not foreclose laws protecting judges, law-enforcement officers, and other justice-system personnel from dangerous disclosures. It requires such laws, when they restrict speech based on content, to use the least restrictive means of advancing that protective purpose.
The ruling also highlights the constitutional risk posed by automatic civil liability for publishers and data brokers that may unknowingly include protected officials in broad collections of personal information. Legislatures can reduce that risk through narrower mechanisms, potentially including notice-and-removal procedures or other limits tied to a publisher’s knowledge.