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The Fourth Circuit affirmed that publishing facts the government already made public is protected speech. The October 27 ruling paves the way for increased election transparency, allowing election watchdogs to publish voter rolls without fear of recrimination.
In Jackson v. Thomson Reuters America Corp., the court ruled that a core provision of West Virginia’s Daniel’s Law violates the First and Fourteenth Amendments. The statute barred anyone from disclosing the home addresses or unpublished phone numbers of judges, prosecutors, public defenders, and law enforcement officers without written permission.
Daniel’s Law refers to any statute aimed at shielding the identity of public officials. Multiple states passed similar laws after a would-be assassin murdered U.S. District Court Judge Esther Salas’s son Daniel in 2020 at her home. Unlike similar laws in other states, West Virginia’s version didn’t require protected persons to ask offending parties to take down their personal information before seeking damages.
An Open-Ended Path to Endless Litigation
In the Jackson case, Michael Jackson, a retired West Virginia law enforcement officer, initiated class-action lawsuits against five data brokers, including Whitepages Inc. He sought $1,000 in damages per violation from each data broker for allegedly publishing his home address and phone number and those of other protected persons via those companies’ online background check services.
Judge Paul Niemeyer’s opinion made quick work of the state’s defense, which claimed that publishing factual information like an address is “data” and not speech. Because the law singled out the addresses of certain officials and left others alone, he said it is content-based, which triggers strict scrutiny.
He affirmed that the state does have a compelling interest to protect public officials, but the statute was not narrowly tailored. Without a notice requirement, the statute incentivized publishers to censor themselves rather than risk a lawsuit.
Why It Matters for Voter Roll Transparency
This ruling has implications well beyond data brokers.
Under the National Voter Registration Act of 1993, or NVRA, states must make voter registration records available for public inspection. Those files typically list names, residential addresses, registration dates, party affiliation-where recorded-and voting history.
The pro-election transparency nonprofit Voter Reference Foundation (VRF) obtains official voter files and publishes them for free on VoteRef.com. Anyone can search voters by name or address or simply scroll through states, counties, or precincts to see who is on the roll. This allows ordinary citizens to check whether a relative who moved or died years ago is still on the rolls, or whether multiple voters are registered at one address. For that reason, publishing the addresses is essential.
Overbroad privacy laws threaten exactly that. A statute that imposes automatic liability for publishing addresses, without a notice requirement, could force groups like VRF to pull entire state files or gamble on expensive litigation. The Fourth Circuit’s insistence on narrow tailoring protects the ability of citizens and nonprofits to publish complete, usable rolls.
Courts have recognized that the NVRA’s public-inspection mandate preempts conflicting state restrictions. VRF has already beaten back states that tried to hide their data. In New Mexico, a judge sided with VRF and awarded it $1 million in legal fees for trying to prosecute VRF for publishing its roll. In Massachusetts, a judge ordered the state to turn over its complete roll rather than give VRF the runaround to every township.
The Jackson decision hands VRF’s lawyers another weapon for the cause of transparency. It affirms that disseminating factual information from public records is protected speech, and states cannot use vague “risk of harm” standards to shut down scrutiny.
Public confidence in elections takes more than assurances from the officials running them. When citizens can inspect the rolls themselves, officials feel the pressure to keep them accurate, and suspicion fades. Protecting at-risk individuals is an important function of the state, and narrower measures may be warranted in certain circumstances. But, in this case, the Fourth Circuit recognized that West Virginia went too far, threatening free speech in the name of privacy.
You can check the voter rolls yourself at VoteRef.com.
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