Officials’ Privacy and Protected Speech: West Virginia’s Disclosure Ban Fails Strict Scrutiny for Lack of Narrow Tailoring

1. Introduction

This unanimous, published decision addresses the constitutional boundary between protecting public officials from violence and preserving the freedom to disseminate factual information. The Fourth Circuit held that West Virginia’s restriction on disclosing certain officials’ home addresses and unpublished telephone numbers violated the First and Fourteenth Amendments because it burdened substantially more speech than necessary to achieve its compelling protective purpose.

The plaintiff, Michael Jackson, was a retired West Virginia law-enforcement officer. He brought five putative class actions alleging that online “people search” businesses published his home address and unpublished telephone number without permission. The defendants were Thomson Reuters America Corporation; Whitepages, Inc.; Thryv, Inc.; PeopleConnect, Inc., and associated companies; and LexisNexis Risk Solutions, Inc. Jackson alleged that their databases similarly disclosed information about thousands of other protected West Virginia officials.

The cases arose under West Virginia’s Daniel’s Law, enacted following the 2020 murder of Daniel Anderl, the son of United States District Judge Esther Salas. The attacker obtained the judge’s home address online before approaching her home and shooting her son and husband. That tragedy supplied the legislation’s urgent protective context, and the court expressly accepted the importance of preventing similar attacks.

The decisive issue was not whether officials deserve protection. It was whether West Virginia could impose liability for disclosure without requiring advance notice, a removal request, or knowledge that the information concerned a protected official. The court concluded that the resulting pressure to suppress otherwise lawful information made the challenged provision insufficiently tailored.

2. The Statute and Procedural Background

The challenged restriction

West Virginia Code § 5A-8-24(e) prohibited a person, business, or association from disclosing, redisclosing, or otherwise making available a covered person’s home address or unpublished home or personal telephone number without prior written permission:

“under circumstances in which a reasonable person would believe that providing such information would expose another to harassment or risk of harm to life or property.”

Covered persons included active, formerly active, and retired judicial officers, prosecutors, specified public defenders, and law-enforcement officers. Related provisions also protected individuals residing at covered persons’ home addresses. “Disclosure” included dissemination over the Internet.

The provision authorized private civil actions and permitted actual damages, subject to a minimum of $1,000 per violation, punitive damages, attorney’s fees, and preliminary or equitable relief. Crucially, liability did not depend on a protected person first requesting removal or on the publisher knowing that the information concerned someone within the protected class.

Jackson’s allegations and the dismissal

Jackson alleged that the defendants assembled information from public records, social media, and other data brokers, then sold convenient access through searchable online services. He emphasized that searching these services was substantially easier than collecting equivalent information from government sources. He also relied on a Federal Trade Commission report identifying risks of harassment, stalking, and retaliation associated with people-search products.

The defendants jointly moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), asserting facial unconstitutionality and unconstitutional vagueness. The district court dismissed the actions because the restriction was content based and failed strict scrutiny. It did not reach vagueness. The Fourth Circuit reviewed that legal determination de novo and affirmed.

Because the cases ended at the pleading stage, the allegations about the defendants’ practices were not findings following trial. Nor did the decision establish liability, assess damages, or certify a class.

3. Summary of the Opinion

The Fourth Circuit’s decision rests on five principal conclusions:

1. Disclosing factual data is speech. Addresses and telephone numbers do not lose First Amendment protection merely because they are facts rather than commentary.
2. The restriction is content based. Its application depends on what information is communicated and whose address or telephone number it identifies.
3. Protecting justice-system officials is a compelling interest. The court and all parties agreed on this point.
4. The law is not narrowly tailored. Its lack of notice or knowledge safeguards creates liability risks that encourage suppression of information beyond the protected class.
5. No proposed alternative framework saves the provision. Jackson’s arguments concerning truthful reporting, historical confidentiality protections, and commercial speech did not justify avoiding strict scrutiny.

The court therefore held § 5A-8-24(e) facially unconstitutional under the First and Fourteenth Amendments and affirmed dismissal of all five actions. Its holding concerned that subsection, not every provision of West Virginia’s Daniel’s Law or every comparable law enacted elsewhere.

4. Analysis: Legal Reasoning

A. Facial review and First Amendment overbreadth

A facial challenge attacks a law itself rather than merely its application to one litigant. Ordinarily, such challenges face a demanding standard: the challenger must establish that the law is unconstitutional in all its applications or lacks any plainly legitimate sweep.

First Amendment cases allow a broader inquiry because an overbroad law may silence people who never come before a court. The relevant question is whether a substantial number of applications are unconstitutional relative to the law’s legitimate reach. The court also described the inquiry in terms of a substantial risk that enforcement would suppress speech.

That framework mattered because some disclosures could plainly threaten officials’ safety. The existence of legitimate protective applications did not resolve whether the statute also substantially chilled constitutionally protected dissemination.

B. Facts remain protected speech

Jackson argued that the law regulated data rather than speech, invoking the idea that protected expression must communicate a particularized message. The court rejected that distinction. Facts are building blocks of communication, knowledge, and public affairs, and publishing or disclosing them is itself expressive activity.

The court’s conclusion also rejected an implicit distinction between traditional directories and modern databases. Greater speed and accessibility can increase the risks associated with personal information, but they do not remove publication from the First Amendment’s coverage. Constitutional scrutiny therefore could not be avoided simply by describing the defendants as data brokers rather than speakers.

C. Content discrimination arises from both the information and its subject

The law selected particular information—home addresses and unpublished telephone numbers—and particular people whose information could not be disclosed. Determining whether a communication fell within the prohibition required examining its meaning.

The court illustrated this with an address: identifying 100 Main Street as a grocery clerk’s residence would not trigger the restriction, while identifying it as a police officer’s residence could. The difference was the information conveyed about the resident. The law was therefore content based, even though its purpose was safety rather than suppression of an unpopular viewpoint.

This distinction is important: a law need not discriminate among political opinions to be content based. Selecting factual subject matter can suffice.

D. The tailoring defect: liability without meaningful identification safeguards

Strict scrutiny required the party defending the law to establish both a compelling governmental interest and use of the least restrictive means of advancing it. The first requirement was undisputed. The second was decisive.

The court considered a publisher assembling a directory from public land records. The publisher might unknowingly include the address of a police officer or public defender. Because West Virginia did not require knowledge of protected status or prior notification, publication could expose the publisher to liability before it had a practical opportunity to identify and remove protected entries.

This risk extended beyond individual mistakes. If a publisher could not reliably determine which residents were protected, withholding the entire directory might appear safer than publishing it. The resulting self-censorship would suppress information about people whom the statute did not purport to protect.

Although the opinion described this operation as effectively automatic liability, the statutory reasonable-person risk condition still existed. The court’s point was that, as Jackson understood and sought to enforce the provision, that condition did not meaningfully narrow its reach.

E. Why the reasonable-person condition did not cure the problem

Jackson argued that the statute applied only where a reasonable person would anticipate harassment or risk of harm. In principle, such language might distinguish dangerous disclosures from innocuous ones. But the court concluded that Jackson’s interpretation supplied no workable boundary.

His complaints treated the mere online availability of covered persons’ contact information as sufficient exposure to risk. At oral argument, he could not identify a disclosure that would not create the relevant exposure. His reliance on the FTC’s general account of data-broker risks reinforced that expansive understanding.

The court consequently regarded the condition as universal rather than limiting: virtually any online disclosure could increase someone’s exposure to harassment or harm. It did not adequately distinguish targeted, dangerous disclosures from routine directory publication.

F. Notice-and-removal systems demonstrated less restrictive alternatives

The court compared West Virginia’s approach with other Daniel’s Laws requiring a protected person to request removal before liability attaches. Delaware, for example, required removal within 72 hours after receipt of a written request under Del. Code Ann. tit. 10, § 1923(b).

Such systems give publishers a means to identify protected information and an opportunity to comply before incurring liability. Their existence undermined the claim that West Virginia’s immediate-liability model was the least speech-restrictive way to protect officials.

The court expressly cautioned that notice was one possible narrowing mechanism, not the only constitutionally permissible design. Correspondingly, the decision does not establish that adding notice automatically makes every privacy statute constitutional. Other features of a revised law could still require review.

G. The proposed exceptions did not displace strict scrutiny

Jackson’s remaining arguments sought a different constitutional framework. The court rejected each:

• Truthful reporting: The cases involving punishment of news organizations were narrower than this statute, which regulated a broad range of speakers. Even if those authorities applied, the court’s precedent required strict scrutiny.
• Historical confidentiality: Jackson did not establish a tradition placing comparable restrictions on address and telephone-directory publication outside ordinary First Amendment review.
• Commercial speech: Selling information does not, by itself, make the information commercial speech. Moreover, the law covered noncommercial disclosures as well as commercial ones.

5. Analysis: Precedents Cited and Their Influence

A. Appellate review and facial challenges

Blair v. Appomattox Cnty. Sch. Bd., 147 F.4th 484, 491 (4th Cir. 2025)

This decision supplied the standard of appellate review: dismissal under Rule 12(b)(6) is reviewed de novo. The Fourth Circuit independently assessed the legal sufficiency of Jackson’s claims and the constitutional defense rather than deferring to the district court’s conclusions.

Nat'l Ass'n of Diversity Officers in Higher Educ. v. Trump, 167 F.4th 86, 100 (4th Cir. 2026)

The court used this precedent to contrast ordinary facial challenges with the more speech-protective First Amendment framework. Its substantial-risk formulation supported examining the law’s chilling effects beyond the defendants’ particular publications.

Edgar v. Haines, 2 F.4th 298, 313 (4th Cir. 2021)

Quoted through the preceding authority, this case supplied the ordinary requirement that a facially challenged law be unconstitutional in all applications or lack any plainly legitimate sweep. It served as the baseline from which the First Amendment analysis departed.

Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024)

This Supreme Court decision supplied the governing comparison between a substantial number of unconstitutional applications and a statute’s plainly legitimate sweep. It explained why legitimate efforts to prevent harmful disclosures did not necessarily defeat the facial challenge.

B. Incorporation, content discrimination, and strict scrutiny

Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019)

The court cited this case for the Fourteenth Amendment’s application of the First Amendment to the States. The Fourteenth Amendment’s role here was incorporation, not a separate equal-protection holding.

Moshoures v. City of N. Myrtle Beach, 131 F.4th 158, 167 (4th Cir. 2025)

This circuit precedent supplied the rule that content-based speech restrictions are presumptively unconstitutional. It established the starting presumption once the statute’s content distinctions were identified.

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)

This was a central authority. It established that facial distinctions based on the topic or content of speech trigger strict scrutiny and that the defender must show narrow tailoring to a compelling interest. The court applied that rule to distinctions among kinds of personal information and the persons identified.

McCullen v. Coakley, 573 U.S. 464, 478 (2014)

The court relied on this decision for the least-restrictive-means requirement applicable to strict scrutiny. The availability of notice-and-removal mechanisms made West Virginia’s more restrictive design constitutionally vulnerable.

City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022)

Jackson invoked its description of communicative content to argue that factual contact information was not regulated by topic or message. The court instead found that the statute distinguished disclosures by their meaning. The same decision, at page 68 n.3, also supported rejecting commercial-speech scrutiny where a law applies equally to commercial and noncommercial messages.

C. Factual information as speech

Texas v. Johnson, 491 U.S. 397, 404 (1989)

Jackson relied on its particularized-message language to argue that pure facts were outside speech protection. The court rejected that proposed limitation in light of decisions directly protecting factual dissemination. It did not question the cited decision’s holding.

Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011)

This decision directly defeated the data-versus-speech distinction. Its recognition that facts are the starting point for essential speech established that information does not become constitutionally unprotected merely because it consists of data.

Ostergren v. Cuccinelli, 615 F.3d 263, 271–72 (4th Cir. 2010)

The court cited its earlier protection, in the circumstances presented there, of publishing unredacted Social Security numbers. That authority reinforced the proposition that even sensitive identifying information can constitute protected speech. The qualification concerning context prevents reading it as universal immunity for disclosure.

Bartnicki v. Vopper, 532 U.S. 514, 527 (2001)

The court relied on its observation that disclosing and publishing information are paradigmatic speech activities. Its role here was to establish First Amendment coverage, not an unconditional right to publish every kind of private information.

D. Chilling effects and speaker fault

Counterman v. Colorado, 600 U.S. 66, 75 (2023)

This decision supported the concern that speech prohibitions deter expression beyond their lawful boundaries. The court used that reasoning to explain why publishers facing liability for unknowingly including protected officials might suppress entire directories. It did not import a particular mental-state requirement from that case into every privacy statute.

E. Truthful reporting and privacy

The Florida Star v. B.J.F., 491 U.S. 524, 530, 541 (1989)

Jackson proposed this truthful-reporting decision as an alternative framework. The court emphasized its narrow holding and its setting involving a news organization’s lawful acquisition and publication of truthful information. West Virginia’s statute reached a much broader class of speakers, and the proposed analogy would not avoid strict scrutiny in any event.

Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 101–05 (1979)

This companion authority likewise concerned truthful publication by the press and expressly limited its holding. It did not establish a general reduced-scrutiny exception for laws protecting sensitive personal information.

Atlas Data Priv. Corp. v. We Inform, LLC, 758 F. Supp. 3d 322 (D.N.J. 2024)

The opinion identified this district court decision as evaluating New Jersey’s Daniel’s Law through the truthful-publication framework and noted that an appeal had been docketed. It supplied a relevant comparison, not binding authority or a basis for sustaining West Virginia’s differently structured provision.

Soderberg v. Carrion, 999 F.3d 962, 964, 969 (4th Cir. 2021)

This circuit precedent supplied the alternative answer to Jackson’s reporting argument: even applying the proposed line of cases would require strict scrutiny. Thus, choosing that framework would not cure the tailoring defect.

F. Privacy interests and commercial speech

Am. Ass'n of Pol. Consultants v. FCC, 923 F.3d 159, 168 (4th Cir. 2019)

The court cited this decision’s application of strict scrutiny despite the asserted interest in protecting personal and residential privacy. It undermined the claim that privacy legislation historically escapes demanding First Amendment review.

Barr v. Am. Ass'n of Pol. Consultants, 591 U.S. 610 (2020)

The opinion identified this Supreme Court decision as the affirmance of the preceding circuit case. It supplied the appellate history of the privacy-related authority rather than an independently developed ground of decision.

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563–64 (1980)

Jackson invoked its intermediate-scrutiny framework for commercial speech. The court rejected its application to the challenged provision because profit motivation alone did not establish commercial speech and the statute also regulated noncommercial communications.

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 108 (4th Cir. 2018)

This precedent recognized economic motivation as relevant to commercial-speech classification. The court acknowledged that relevance without treating the factor as conclusive.

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67 (1983)

This decision supplied the decisive limitation: economic motivation alone does not make speech commercial. Selling access to factual information therefore did not automatically reduce the constitutional protection afforded to its dissemination.

6. Impact and Critical Assessment

Legislative design must address identification and compliance

The opinion gives legislatures a practical warning: a compelling safety objective cannot substitute for mechanisms that help speakers identify protected information and comply without suppressing unrelated speech. Notice, removal opportunities, and appropriately designed fault requirements are important possible safeguards. The court did not prescribe one exclusive legislative formula.

Digital accessibility does not eliminate speech protection

The decision is significant for data brokers, directories, publishers, and other information services. It treats the efficiency of online aggregation as relevant to the practical problem but not as a reason to deny First Amendment coverage. It also confirms that a business model based on selling information does not, standing alone, convert the underlying publication into commercial speech.

General risk language may be insufficient

Future courts may scrutinize whether references to “risk,” “harm,” or “harassment” genuinely constrain a disclosure prohibition. If every publication creates some theoretical risk, such wording may do little tailoring work. Here, the court’s analysis depended significantly on Jackson’s expansive interpretation and his inability to identify an excluded disclosure.

The decision’s limits matter

• It does not invalidate all Daniel’s Laws or reject public-official safety as a compelling interest.
• It does not adjudicate the constitutionality of every notice-based federal or state statute discussed for comparison.
• It does not establish an unrestricted right to publish all private information.
• It does not resolve the defendants’ separate vagueness challenge.
• It does not require actual knowledge as the sole permissible safeguard in every future statute.

An unresolved protective tension

Notice systems reduce burdens on publishers, but they may leave information accessible before notice is given and processed. The opinion does not fully resolve that practical vulnerability. Its constitutional conclusion is narrower: West Virginia had not justified imposing its broader speech burden when less restrictive mechanisms were available.

The decision also leaves room for future disputes over whether a more constrained interpretation of risk language, a different fault standard, or another carefully designed mechanism could adequately protect both officials and speakers. It invalidates this statutory design rather than declaring the underlying regulatory task impossible.

7. Complex Concepts Simplified

Facial challenge

A claim that a law’s overall operation is unconstitutional, not merely that it was wrongly applied in one instance.

First Amendment overbreadth

A doctrine allowing courts to invalidate a law whose unconstitutional reach is substantial compared with its legitimate applications, because people may otherwise remain silent rather than risk punishment.

Content-based restriction

A rule whose application depends on what a communication says. Here, liability depended on whether the information identified a protected official’s home address or unpublished telephone number.

Strict scrutiny

A demanding review requiring a compelling governmental interest and narrowly tailored means of pursuing it.

Least restrictive means

The government may not unnecessarily burden speech when a less speech-restrictive method can serve the compelling objective.

Chilling effect

The deterrence of lawful expression through fear of liability. A publisher might withhold an entire directory to avoid unknowingly listing one protected person.

Knowledge requirement

A condition tying liability to awareness of a relevant fact. The particular concern here was the absence of required knowledge that disclosed information concerned a covered person.

De novo review

Independent appellate review of a legal question, without deference to the district court’s answer.

8. Conclusion

The Fourth Circuit accepted both the danger posed by accessible personal information and the compelling need to protect justice-system officials. Nevertheless, it held that West Virginia Code § 5A-8-24(e) reached too broadly by exposing publishers to liability without adequate safeguards against unknowing disclosure.

The central principle is that official-safety legislation restricting factual publication must protect its beneficiaries without unnecessarily silencing lawful speech. Notice-and-removal procedures offered a concrete example of narrower regulation, but the court left legislatures flexibility to develop other constitutionally adequate approaches.