Laurence Tribe: Protecting federal judges is essential to nation’s security

We are living through a rising tide of politically and racially motivated crimes of violence, including assassination attempts on public officials who are just doing their jobs — operating the machinery of elections essential to self-government or defending those who carry out government functions, including the judges on whom we depend to administer our laws “without fear or favor.”

One such judge is U.S. District Judge Esther Salas of New Jersey. On July 19, 2020, a lawyer posing as a FedEx delivery man showed up at her home while she and her husband were celebrating their son Daniel’s birthday. The doorbell rang. Daniel ran to answer the door. The lawyer’s gunshots hit Daniel at close range in the chest; Daniel died. Judge Salas’s husband, right behind Daniel, was grievously wounded. “Daniel, being Daniel, protected his father,” Judge Salas said in a video released after the incident. Salas, the man’s original target, had been in another room and narrowly avoided the assailant’s attempt to kill her. The murderer, who fled and later took his own life, was a self-proclaimed anti-feminist who had tracked down the judge and her family on the internet after harboring a grudge going back to a case filed with Judge Salas in 2015. He accused the judge of moving the case too slowly, calling her a “lazy and incompetent Latina” in a racist, misogynistic manifesto he left behind.

If a new bill pending in Congress, the Daniel Anderl Judicial Security and Privacy Act (“Daniel’s Law”), had been in force in the preceding months, Judge Salas would have had the option to ask that her family’s personal information, including where they lived and their birthdates, be removed from the internet sites that enabled the murderer to target them for assassination.

The law would also have prohibited the sale of that personal information, making its potentially dangerous continued dissemination far less likely. Unlike many of life’s tragedies, Daniel’s death and the judge’s ordeal were avoidable.

Daniel’s Law is a narrowly tailored solution to a hugely important problem — important not just to the judges themselves but to the vital job they perform in our federal system, a job without which the entire edifice of law would come crashing down.

The bill makes carefully designed exceptions for information “relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.” Thus, the bill does not impinge on political speech or on the public’s interest in judicial accountability. At the same time, it closes a gaping loophole in the protection of the rights of privacy and, indeed, rights to life, of those who construe and enforce our federal laws.

The preamble identifies a primary culprit: A “rise in the use of social media and online access to information,” exposing federal judges in particular “to an increased number of personal threats in connection to their role” by making it easier “for malicious actors to discover where individuals live and where they spend leisure hours and to find information about their family members.”

The vigilante violence facilitated by that ease of access is an equal-opportunity plague, endangering judges across the ideological spectrum. The recent threats against Supreme Court Justice Brett Kavanaugh following a leaked draft of the court’s Dobbs decision, and against Magistrate Judge Bruce Reinhart for signing the search warrant for the FBI’s raid on Mar-a-Lago, equally demonstrate the urgent need for the better protection of federal judges.

It has become plain that every judge is at risk of becoming the victim of a crazed assailant, a risk that extends to the members of every judge’s family.

States can protect their own judges, as New Jersey has done in the wake of Daniel’s murder, but only Congress is in a position to create a precise privacy-protecting tool for the nearly 2,000 federal judges who interpret and apply national law. Why not give those judges the modest power to request in writing, either personally or through the Administrative Office of the U.S. Courts, that specified categories of personal information — like their home addresses or details about their children’s schedules — be kept private, backed up with reasonable and modest procedures to remove that information from online and other publicly accessible platforms?

It bears emphasis that this bill imposes no criminal prohibition or provision for civil damages and is entirely viewpoint-neutral, authorizing lawsuits only to stop businesses or individuals from defying requests not to disclose, display, or disseminate specified items of personal information — without regard to the ideas expressed in the course of doing so. It does not empower any government official to prevent or punish speech that the official deems to be threatening or otherwise objectionable.

Daniel’s Law imposes nothing beyond a simple duty to comply with a specific request to take down personal information. Its straightforward judicial enforcement mechanism eliminates any risk of censorship of disfavored content, much like a law protecting the identities and addresses of persons in a witness protection program or permitting individuals to sue to prevent publication of their personal medical data or their diaries.

As a strong defender of the rights of free speech and press, and as the lawyer who argued and won the first Supreme Court case establishing a right of the press and the public to attend and observe criminal trials, Richmond Newspapers v. Virginia, over four decades ago, I think it makes a mockery of the First Amendment to suggest this law endangers anyone’s rights to speak freely and publish without fear of censorship.

Suggestions by the bill’s opponents that innocuous conduct like “tweeting happy birthday to a judge” might be stifled by the bill’s language are worse than silly: They flatly misrepresent the law’s carefully circumscribed reach and trivialize a problem that goes to the heart not just of our democracy but of any civilized society in which violent vigilante justice has no place.

Daniel’s Law, a bill with broad bipartisan support, was recently added to the Senate version of the 2023 National Defense Authorization Act (the “NDAA”), an annual package that funds our nation’s military. It’s crucial that it remain part of the NDAA when the Senate and House confer to reconcile their versions of the bill.

Including Daniel’s Law in the final, must-pass NDAA would represent a kind of poetic justice — because the case where the lawyer who killed Danny was upset with his mother’s handling of the matter itself involved equal access to military service without regard to gender. But the real reason this essential law belongs in the National Defense Authorization Act is that putting judges at risk for doing equal justice under the law erodes our national security by undermining the very fabric of America. Nothing could be more germane to defending the nation than defending those charged with applying its laws.

If we are to safeguard the Constitution and the rule of law, we must give federal judges and their families the tools they need to protect themselves and their essential work from threats of violence.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard, the author of many books about the Constitution and the Court, and a Supreme Court advocate. Follow him on Twitter @tribelaw.