Ruling That W.Va. Daniel's Law is Unconstitutional Could Affect Other States
A recent court decision on West Virginia's Daniel's Law is the first ruling to find a law protecting the privacy of public officials unconstitutional on First Amendment grounds -- and it will likely influence litigation in other states, said Troutman lawyers in a blog post Aug. 22. It could also lead to West Virginia amending its law, a Klein Moynihan lawyer said Monday.
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The law allows certain public servants to ask data brokers to delete their personal information from public websites. In the U.S. District Court for Northern West Virginia case, a retired law enforcement officer filed class-action complaints against Whitepages and four other defendants for violations of the West Virginia statute. Whitepages and the other defendants asked to dismiss the actions, alleging the law -- and specifically its private right of action -- is a content-based regulation of speech. Judge Michael Urbanski agreed with Whitepages, dropping the suit on First Amendment grounds (see 2508210057).
The “decision recognizes that regardless of the noble purpose of a law, a content-based restriction on constitutionally protected speech must be narrowly tailored to withstand First Amendment scrutiny,” wrote Joshua Davey and other Troutman privacy lawyers.
The attorneys noted that throughout the opinion, Urbanski referenced other recent cases involving New Jersey’s Daniel’s Law, in which a judge ruled differently. Judge Harvey Bartle ruled a consolidated case against Atlas Privacy can continue, as the statute is constitutional (see 2506300065). The U.S. District Court for New Jersey recently heard oral argument in that case concerning the law's legality in other ways (see 2508110035).
“While the court expressed agreement with certain conclusions reached in both decisions, including that New Jersey’s Daniel’s Law was a restriction of speech, the court’s analysis diverged on the applicability of strict scrutiny,” said the lawyers.
But the holding in the West Virginia case “is important in the context" of challenges to other states' versions of Daniel’s Law, "which share the same problematic features as West Virginia’s law,” they added. “While West Virginia’s and New Jersey’s versions of Daniel’s Law have important differences, both statutes are content-based restrictions on speech and both lack a scienter requirement, which the Supreme Court notes, and the West Virginia District Court found, has a chilling effect on speech.”
The Troutman lawyers predicted the West Virginia decision would be appealed to the 4th U.S. Circuit Court of Appeals. Meanwhile, if the 3rd Circuit "affirms the New Jersey District Court’s order upholding the constitutionality of the law, the Supreme Court may choose to review the issue to provide guidance on the appropriate standard to be applied to laws seeking to curtail the freedom to publish truthful information.”
Another privacy lawyer, David Klein of Klein Moynihan, discussed the implications of this case in a blog post Monday. “In its ruling, the Court also found West Virginia’s Daniel’s Law problematic on the basis that it imposes liability without any knowledge on the part of the disclosing entity,” he noted. “Although this decision is limited to [the plaintiff's] lawsuits, the West Virginia State Legislature likely will amend its Daniel’s Law to withstand any future constitutionality challenges.”
West Virginia’s Daniel’s Law is one of several versions that state legislatures crafted after the 2020 murder of U.S. District Judge Esther Salas’ son, Daniel Anderl, by a litigant who had practiced in Salas' courtroom and found her home address online (see 2503110077).
New Jersey, where Salas is from, was the first to pass Daniel’s Law in the wake of the tragedy, which was amended in 2023 to allow third parties to bring suits on behalf of covered persons. Some privacy lawyers argue this has led to “abuse” of the statute (see 2504040031).
Other state legislators are looking to replicate Daniel's Law, or even expand its scope, in the wake of the shooting deaths last month of former Minnesota House Speaker Melissa Hortman (D) and her husband and the attempted killing of John Hoffman (D), a Minnesota senator, and his wife (see 2503280028 and 2507030055).
“As challenges to Daniel’s Law proceed through the courts and as state legislators seek to adopt similar versions of the law, time will tell what impact the [West Virginia] decision will have on pending cases and future legislation,” said the Troutman lawyers.