ACLU Says NJ Judge Safety Law Is Used To Chill Free Speech

By Marco Poggio | July 21, 2023, 4:22 PM EDT ·

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Charlie Kratovil, the founder and editor of New Brunswick Today, said the local police director is misusing a law meant to protect public officials to prevent him from reporting on his absenteeism. (Charlie Kratovil)

Days after he questioned the absenteeism of the Police Department director during a City Council meeting, Charlie Kratovil, a seasoned local journalist and self-described advocate in New Brunswick, a city in central New Jersey, received a cease-and-desist letter.

In it, the police director threatened Kratovil with criminal prosecution and civil liability for sharing with City Council members the name of the street where the director lives — as it turned out, in a city more than two hours away from New Brunswick.

Kratovil obtained the director's residential address legally through an open records request, but that didn't stop the director, Anthony A. Caputo, from invoking a 2020 state law that made it a crime to disclose the addresses of judges, prosecutors and law enforcement officers to the public. In the letter, Caputo warned Kratovil of legal woes if he continued to share his residence information publicly.

"I trust you will be guided accordingly," the letter said.

Kratovil, who was preparing to publish a story about the director's distance from his post and his chronic lack of attendance at City Council meetings, told Law360 that Caputo is misusing the law, enacted to enhance the safety of public officials after a disgruntled men's rights attorney shot and killed the 20-year-old son of U.S. District Judge Esther Salas at her home in 2020, to muzzle him.

"I certainly take my job very seriously and I understand that I have a very newsworthy story here," Kratovil said. "It's just really unconscionable that the police director would use city resources to try to chill my speech. Given the context here, it's really, really outrageous for him to do that."

Kratovil's case drew the attention of the American Civil Liberties Union of New Jersey, which last week filed a suit against Caputo and the City of New Brunswick arguing the statute, known informally as Daniel's Law in memory of Judge Salas' son, is an unreasonable violation of free speech as applied to Kratovil's work as a journalist.

"By threatening criminal and civil sanctions for reporting on truthful, legally obtained information, the city and its director of police unconstitutionally chill Mr. Kratovil's free speech and free press rights," Jeanne LoCicero, an attorney with the ACLU, said in a statement.

In a complaint filed in New Jersey Superior Court in Middlesex County, the ACLU argued the law violates Kratovil's rights under the New Jersey Constitution, which provides the same type of protections granted by the First Amendment, and asked the court to declare it invalid as applied to him. The complaint also asked the court to render Caputo's letter void.

"Government should not threaten news reporters with prosecution or civil liability if they write a news story or share information about something questionable going on with a public servant's address," the complaint says. "Daniel's Law makes it even more difficult to ascertain those things, and as applied in this circumstance, it creates a chilling fear of criminal and civil prosecution."

Spokespeople for the city of New Brunswick and Caputo declined to comment. T.K. Shamy of Shamy & Shamy LLC, who represents both the city and the police director, did not respond to emails seeking comment on the case. The defendants have until Aug. 3 to respond to the complaint, and the next court hearing is set for Aug. 11.

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The cease-and-desist letter Charlie Kratovil received from the New Brunswick Police Department. (Court Documents)

In a brief accompanying the complaint, the ACLU said whether Caputo should live so far from New Brunswick is a matter of public concern.

The brief points to federal precedent protecting free speech and free press rights that the New Jersey Supreme Court has endorsed in its own rulings.

In 1979, ruling in the case Smith v. Daily Mail Publishing Company , the U.S. Supreme Court with an 8-1 majority struck down as unconstitutional a West Virginia law that made it a crime for a newspaper to publish, without approval of juvenile court, the names of youths charged as juvenile offenders. Other U.S. Supreme Court cases in the 1970s and 1980s affirmed the right of journalists to publish lawfully obtained information.

New Jersey's high court endorsed that doctrine, known broadly as the Daily Mail principle, in a 2011 case, G.D. v. Kenny , where information about a political candidate's expunged criminal conviction was featured in campaign material by his opponent. Referencing the Daily Mail case, the court ruled that the use of the expunged criminal record was protected speech.

In its brief, the ACLU argued the Daily Mail principle can be applied to Daniel's Law too, in protecting Kratovil's work.

"As applied to journalists who would report on an issue related to the actual residency of a protected official, the statute similarly punishes publication of lawfully obtained, truthful information about an important public issue and fails to show a need of the highest order," the brief says.

Daniel's Law, which has a broader reach than a federal statute also passed in the wake of Judge Salas' personal tragedy — the Daniel Anderl Judicial Security and Privacy Act — worries legal experts who say it can be easily abused to silence reporters covering newsworthy issues related to government officials.

Thomas A. Berry, a research fellow at the Cato Institute and First Amendment expert, said New Jersey's law goes further in restricting speech than its federal equivalent, which explicitly provides an exception for reporters and news organizations publishing the judges' personal information in news stories and editorials.

"Because this New Jersey state law has no exception equivalent to the exception in the federal law, the reporter here has no recourse," Berry said.

And unlike the federal statute, which allows only for civil penalties, the New Jersey law raises the possibility of criminal penalties, and potentially jail time, if the government can prove that a person disclosing the sensitive information did so recklessly. Berry sees the law's text as too vague and prone to abuse.

"It would be, in my view, clearly unconstitutional to simply say that publishing any public official's home address is reckless to a threat of safety," Berry said. "If that's the case, then essentially publishing it always becomes subject to potential criminal penalties."

Berry pointed out that Kratovil challenged Daniel's Law only as applied to his work, but said he believed that a facial challenge — meaning to the law overall — could also be brought given the protections afforded by the New Jersey Constitution, and that it would likely succeed.

The only way for a law restricting the actions of journalists to withstand scrutiny, Berry said, would be to make it as narrow as possible and require people seeking to shield their information to convince a judge that they need to do so to avoid serious harm to themselves and their families. To meet that standard, they would have to demonstrate specific threats they've already received.

"The problem with both this state law and the federal law is that they give a blanket right with no need for any kind of showing of danger. They give a blanket right for any public official who's covered by the laws to censor all of this information about them," Berry said.

In the nearly 12 years as the editor of New Brunswick Today, an online news organization he founded, Kratovil has published thousands of stories on matters of public concern, including crime, the Police Department, and the city's powerful parking authority.

He said the fact that Caputo lives far away, in Cape May, a city on the other side of the state, casts doubt on his ability to do his job effectively. It also raises questions about whether Caputo shows up in person for his job at all, given that he missed nearly all City Council meetings and attends those of the parking authority, for which he serves on the board of directors, only by phone.

On May 3, during the public participation portion of the City Council meeting, Kratovil mentioned the street name, but not the house number, of Caputo's residence in Cape May. He also provided City Council members with printouts of Caputo's voter's profile, which he obtained through his public records request, showing the director's full address.

Whether that action could be considered a form of publishing covered by Daniel's Law is unclear, in part because the statute's language is broad: it says that people or entities shall not post on the internet "or otherwise make available" the protected information.

"That's pretty vague. And that may be another problem with the law," Berry said. "What the state of New Jersey may argue is that, even though he didn't speak it out loud, just that act of handing them the sheet of paper counts as 'otherwise make available.'"

Gautam Hans, a professor at Cornell University Law School and expert on First Amendment law and technology policy, said the harder aspect of the law for New Jersey to defend is its potential for criminalization, which he called a "red flag" for a court scrutinizing a restriction on free speech.

"A court reviewing a constitutional claim for publication of speech that is accurate is going to be very skeptical," he told Law360.

In 2012, the U.S. Supreme Court found that a 2005 law criminalizing false statements about having a military medal was unconstitutional. Kratovil's case, meanwhile, involves true information that was legally obtained from a government agency, the Cape May Board of Elections.

Free speech doctrine overall allows for a few limited circumstances in which the government can regulate private information or prevent it from being disclosed — for instance when it involves expunged convictions, juvenile criminal records and sexual assault victims — but Kratovil's conduct doesn't fall within those exceptions.

The ACLU did not say why it decided to bring its lawsuit in state court rather than a federal one, considering the rich case law protecting press freedom at the federal level.

Hans said a reason could be preventing the case from ending before one of Judge Salas' colleagues, who could be more sympathetic to the government's argument because of their proximity to her tragedy.

"She might not be the one that hears the case, but certainly her colleagues on the bench might be more inclined to be favorable to the government, given the horrible thing that happened," Hans said. "Judges love to close ranks around their own."

Kratovil is represented by Alexander Shalom and Jeanne LoCicero of the American Civil Liberties Union of New Jersey.

New Brunswick and Caputo are represented by T.K. Shamy of Shamy & Shamy LLC.

The case is Charles Kratovil v. City of New Brunswick and Anthony A. Caputo, case number 3896-23, in the Superior Court of the State of New Jersey, County of Middlesex.

--Editing by Robert Rudinger.

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