Newspaper Can Be Prosecuted for Publishing Home Addresses of Police, Prosecutors, and Judges

[1.] Our first inquiry is whether Caputo’s home address is truthful information that was lawfully obtained and is of public significance…. Kratovil lawfully obtained Caputo’s home address from the records custodian of the Cape May Board of Elections in response to an OPRA request…. [T]here is no indication in the record that Kratovil violated any law in his communications with the custodian.

We do not conclude that because Kratovil was permitted to write a story identifying Cape May as the municipality where Caputo lived without including his precise home address, this case does not involve a matter of public concern. In Florida Star, the Court did not frame the question to be whether the crime victim’s name was itself a matter of public concern, but whether the subject of the news article was a matter of public concern. It found that the subject of the article—violent crime investigated by law enforcement—was a matter of public concern.

In the specific setting of this appeal, the contested information—Caputo’s exact home address in Cape May—is related to Kratovil’s proposed story suggesting that Caputo lived too far from New Brunswick to effectively discharge his public duties. The subject matter of the story—a public official’s alleged failure to perform his duties because he lived hours from the community he served—is clearly a matter of public concern. We therefore hold, in the specific circumstances of this case, that Caputo’s home address in Cape May relates to a matter of public concern, and modify the Appellate Division’s decision with respect to that issue….

[2.] The second inquiry … is whether the challenged law “serves ‘a need to further a state interest of the highest order.'” … [The Legislature] enacted Daniel’s Law “to enhance the safety and security of certain public officials in the justice system, including judicial officers, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors, who serve or have served the people of New Jersey,” and their immediate family members, “to foster the ability of these public servants who perform critical roles in the justice system to carry out their official duties without fear of personal reprisal from affected individuals related to the performance of their public functions.”

In a federal challenge to Daniel’s Law, the United States District Court for the District of New Jersey noted “the well-known fact, amply documented by the record [in that case], that in recent years judges, prosecutors, police, correctional officers, and others in law enforcement have been the subject of an ever increasing number of threats and even assassinations,” some of which “have been facilitated by malefactors obtaining the home address or unlisted phone number of their targets.” And the Attorney General’s amicus submission here cited numerous sources, including a statistical report by the U.S. Marshals Service and news coverage of the recent killing of a New Jersey police officer, that underscore the persistence and severity of the problem the Legislature enacted Daniel’s Law to address. New Jersey’s interest in protecting public officials from such threats and thus ensuring that they may carry out their duties without fear of harm to themselves or their families is clearly a state interest of the highest order under Daily Mail and Florida Star….

[3.] Finally,… the Legislature carefully calibrated the statute to serve a state interest of the highest order by the least restrictive means.

First, the statute does not purport to protect all public employees. Instead, it is expressly limited to discrete categories of current and former public officials viewed by the Legislature to be at particular risk: judges, law enforcement officers, child protective investigators in the Division of Child Protection and Permanency, and prosecutors.

Second, Daniel’s Law implicates only two categories of information: the covered person’s home address and the covered person’s unpublished home telephone number. The statute’s specificity eliminates “the onerous obligation of sifting through government press releases, reports, and pronouncements to prune out material arguably unlawful for publication.” If a person or entity receives notice in accordance with Daniel’s Law, that person or entity is aware of the precise information that must be withheld from disclosure.

Third, even if an individual falls within one of the discrete categories of “covered persons,” the statute imposes no liability for publishing that individual’s address or phone number unless and until an authorized person expressly invokes the protection of Daniel’s Law by providing the notice required …. That strict notice requirement ensures that the statute is not a trap for the unwary; to the contrary, following receipt of the statutory notice, the recipient has an opportunity to identify the specific information subject to restrictions on disclosure and take steps to maintain the confidentiality of that information. Daniel’s Law substantially differs from the Florida statute struck down in Florida Star, which authorized civil damages against the newspaper with no notice or opportunity to prevent a disclosure or redisclosure of the victim’s name.

Fourth, Daniel’s Law is not underinclusive and thus inadequate to serve the state interest …. See Fla. Star (noting that the statute at issue prohibited publication of the protected information only in an “instrument of mass communication,” thus failing to achieve the state’s goal of protecting crime victims, and holding that any prohibition on publishing truthful information must be applied “evenhandedly, to the smalltime disseminator as well as the media giant”). Indeed, Daniel’s Law is not focused on media in general, let alone a particular category of media …. Consistent with the Legislature’s intent to protect covered persons from disclosures that may harm them, “[a]ll non-governmental entities are treated the same.”

Kratovil proposes three amendments to Daniel’s Law that would, in his view, achieve narrow tailoring and render the statute constitutional, and without which the statute must be struck down: (1) a provision for government “self-policing” in the form of the training and auditing of records custodians so that they do not improperly disclose information protected by Daniel’s Law and the imposition of liability on custodians for negligent disclosure; (2) the adoption of an exception found in the federal analogue to Daniel’s Law), for disclosures “relevant to and displayed as part of a news story, commentary, editorial or other speech on a matter of public concern”; and (3) the elimination of the statute’s criminal sanctions in favor of civil penalties such as fines.

We do not share Kratovil’s view that these measures are necessary to narrowly tailor Daniel’s Law to achieve the state interest of the highest order that it was enacted to serve.

First, there is no evidence that records custodians in our State are untrained or unsupervised, or that the apparent error that occurred here—the custodian’s disclosure of the unredacted voter profile after receiving Kratovil’s e-mail—would have been prevented by further training, heightened oversight, or the threat of liability. Grafting on Daniel’s Law a provision mandating training, supervision, and liability for records custodians would not constitute narrow tailoring of the statute to achieve its purpose.

Second, when it enacted Daniel’s Law, the Legislature could have carved out an exception for media and other communications on matters of public concern, as Congress did in enacting the statute’s federal analogue. The Legislature, however, has determined that disclosures of covered persons’ home addresses and unpublished telephone numbers by any “person, business, or association”—whether or not that person or entity constitutes “media”—pose risks to the safety and privacy of law enforcement and other covered persons serving this State. We do not view the significant alteration that Kratovil advocates to provide an “effective alternative[ ]” to the statute as enacted.

Finally, we address Kratovil’s contention that Daniel’s Law should impose only civil penalties, not criminal liability. Given the grave threats to public officials, tragically illustrated by the murder of the young man for whom Daniel’s Law is named, it was the Legislature’s judgment to deter reckless and intentional disclosures of a discrete category of information by prescribing criminal penalties for such disclosures. Criminal sanctions may not be imposed absent a finding that the person disclosed the information recklessly or intentionally. If its criminal provision were eliminated, Daniel’s Law would less effectively serve the state interest of the highest order it was enacted to achieve. We decline to compel such a fundamental change.

In sum, as applied to Kratovil, Daniel’s Law as written is narrowly tailored to achieve the state interest of the highest order: protection of certain public officials from harm and the threat of harm so that they can perform their public duties without fear of reprisal…