Background
Michael Jackson, a retired West Virginia law-enforcement officer, brought five proposed class actions against companies offering online people-search services. He alleged that the companies disclosed his home address and unpublished telephone number, along with similar information concerning thousands of other protected officials, without permission and in violation of West Virginia’s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Virginia Code § 5A-8-24(e), prohibits disclosure of a covered judicial or law-enforcement official’s home address or unpublished home or personal telephone number when a reasonable person would believe the disclosure would expose someone to harassment or risk of harm. It authorizes 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 that the provision was a content-based speech restriction that failed strict scrutiny because it lacked a notice or knowledge requirement.
The Court’s Holding
The Fourth Circuit affirmed. It held that disseminating factual data, including addresses and telephone numbers, constitutes speech protected by the First Amendment. The provision is content based because its application depends on both the type of information disclosed and whether the information concerns a covered official: disclosure of an address associated with an ordinary resident is permitted, while disclosure of the same address associated with a police officer may be prohibited. Strict scrutiny therefore applied.
The court agreed that protecting judicial and law-enforcement officials is a compelling governmental interest, but held that the provision is not narrowly tailored and does not use the least restrictive means. Liability can arise immediately even when a publisher does not know that information concerns a covered person, creating pressure to suppress information about the public generally. Unlike comparable federal and state laws, West Virginia’s provision does not require a covered person to notify the publisher and request removal before liability attaches. The court emphasized that prior notice is one possible means of narrowing the law, not necessarily the only one.
The court rejected Jackson’s proposed alternatives to strict scrutiny. The statute could not avoid First Amendment review merely because it regulated data; the cases involving publication of lawfully obtained truthful information would still call for strict scrutiny; Jackson did not establish a historical exception for this type of privacy law; and an economic motive did not make all regulated disclosures commercial speech, particularly because the statute also applied to noncommercial speech.
Key Takeaways
- Publishing addresses and telephone numbers is protected speech even when the information consists of factual data.
- A restriction keyed to both the information disclosed and the identity or occupation of the person concerned is content based and subject to strict scrutiny.
- Although official safety is a compelling interest, West Virginia’s immediate-liability regime was not the least restrictive means because it lacked notice or knowledge protections and risked chilling lawful publication.
Why It Matters
The decision does not foreclose laws protecting judges, prosecutors, public defenders, law-enforcement officers, and their families from harmful disclosure of personal information. It requires such laws to regulate protected speech through narrowly tailored means, with the Fourth Circuit identifying notice-and-removal procedures used elsewhere as one less speech-restrictive approach.
The ruling is also significant for data brokers, publishers, and other entities that compile public information. Within the Fourth Circuit, states may not impose broad, automatic liability for unknowingly publishing covered officials’ contact information when narrower mechanisms could advance the same safety interest.