West Virginia’s Daniel’s Law: Disclosure Liability Without Notice or Knowledge Fails Strict Scrutiny

A. Legal Reasoning

1. The data–speech distinction could not exclude the disclosures from constitutional protection

Jackson argued that speech must communicate a particularized message and that addresses and telephone numbers are merely “pure facts.” The court rejected that distinction. Facts supply the foundation for communication, public knowledge, and ordinary human affairs. Their disclosure is itself communicative: identifying an address as a particular person’s residence conveys information about that person.

The opinion also emphasized continuity between traditional directories and modern search services. Whitepages, Yellow Pages, property records, tax records, and voting information have long made identifying information available to the public. Greater digital efficiency did not, by itself, remove publication from constitutional protection.

This reasoning did not deny the distinctive dangers of searchable databases. Rather, it treated those dangers as reasons to justify a restriction under constitutional scrutiny, not as reasons to dispense with scrutiny altogether.

2. The law distinguished speech by what it communicated

The court illustrated content discrimination through two disclosures: a grocery clerk lives at 100 Main Street, and a police officer lives at 100 Main Street. The first fell outside the statutory prohibition; the second potentially triggered it. The difference was the meaning communicated about the resident.

The statute therefore selected both a subject matter—home addresses and unpublished telephone numbers—and a category of people whose information received special treatment. Its protective purpose did not make that distinction content-neutral. Because the restriction was content-based, the court required strict scrutiny.

3. The tailoring defect was liability without a practical opportunity to avoid unlawful disclosure

The court accepted the law’s compelling objective but found its mechanism unnecessarily restrictive. A publisher compiling a town directory from public land records could unknowingly include a police officer or public defender. Without knowing that anyone listed belonged to a protected category, the publisher could incur liability.

This created a broader constitutional problem than the punishment of an individual mistaken disclosure. To avoid uncertain and potentially substantial liability, publishers could withhold entire collections of information, including information about people who were not protected by the statute. That incentive to suppress lawful speech was central to the court’s facial analysis.

Although written permission could authorize disclosure, that exception did not solve the identification problem. A publisher unaware that a record concerned a covered person would also lack the knowledge needed to seek the relevant permission.

4. The reasonable-person risk condition was insufficiently limiting

The provision was not literally unconditional: it required circumstances in which a reasonable person would anticipate exposure to harassment or a risk of harm. Nevertheless, the court found that condition practically universal under Jackson’s position.

Jackson could not identify a disclosure of a covered person’s information that would create no such exposure. His complaints and the FTC report supported a generalized proposition that people-search disclosures can facilitate harm, rather than identifying a narrower category of especially dangerous disclosures.

Accordingly, the objective standard did not meaningfully distinguish ordinary publication from circumstances presenting a more specific danger. The opinion’s references to “automatic” liability should be understood in that context: the court viewed the risk requirement as adding little practical protection once covered information was disclosed.

5. Notice-and-removal procedures demonstrated a less restrictive alternative

The court contrasted West Virginia’s provision with other jurisdictions’ approaches. Delaware, for example, required removal within 72 hours after a written request from a covered person. Liability then depended on failure to comply rather than the initial, potentially inadvertent publication.

Such a procedure addresses the identification problem directly: notice informs the publisher that a particular record concerns a protected person and requests action. Its use elsewhere demonstrated that the legislative objective could be pursued through a less speech-restrictive mechanism.

The court expressly stated that notice was one method of narrowing the law, not the only method. The decision therefore does not establish that every privacy restriction must contain an identical takedown process, or that notice alone necessarily makes a statute constitutional. Its narrower conclusion was that West Virginia had not used the least restrictive means available.

B. Precedents Cited and Their Influence

1. Review of dismissal and facial challenges

• Blair v. Appomattox Cnty. Sch. Bd., 147 F.4th 484, 491 (4th Cir. 2025), supplied the de novo standard for reviewing dismissal under Rule 12(b)(6). The appellate court therefore independently examined the legal sufficiency of Jackson’s claims and the constitutional basis for dismissal.

• Nat'l Ass'n of Diversity Officers in Higher Educ. v. Trump, 167 F.4th 86, 100 (4th Cir. 2026), and Edgar v. Haines, 2 F.4th 298, 313 (4th Cir. 2021), described the ordinarily demanding standard for facial invalidation: a law generally must be unconstitutional in all applications or lack any plainly legitimate sweep. The court used these authorities as the baseline before explaining the more protective First Amendment approach.

• Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024), supplied the relevant First Amendment formulation: unconstitutional applications must be substantial relative to the statute’s legitimate sweep. Together with Nat'l Ass'n of Diversity Officers in Higher Educ. v. Trump, it supported concern about a substantial risk of suppressing protected speech. The directory example and resulting incentives for broad self-censorship explained why the defect extended beyond an isolated application.

2. Incorporation, content discrimination, and strict scrutiny

• Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 808 (2019), established the constitutional starting point: the Fourteenth Amendment makes the First Amendment’s prohibition applicable to the States. It explained why West Virginia’s enactment was subject to federal speech protections.

• Moshoures v. City of N. Myrtle Beach, 131 F.4th 158, 167 (4th Cir. 2025), supplied the rule that content-based speech restrictions are presumptively unconstitutional. This placed the justification burden on the law’s defender rather than requiring the publishers to prove that their disclosures had exceptional social value.

• Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015), provided both the facial content-discrimination framework and the requirement of narrow tailoring to a compelling interest. The court relied on it to reject Jackson’s suggestion that only restrictions on viewpoints or articulated ideas qualify as content-based.

• McCullen v. Coakley, 573 U.S. 464, 478 (2014), supplied the least-restrictive-means requirement used in the strict-scrutiny analysis. The availability of narrower notice-based approaches was decisive under that standard.

• City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 69 (2022), appeared in Jackson’s argument that the law did not regulate a topic, idea, or message. The court nevertheless found that identifying information communicated content. The decision also relied on the case’s footnote concerning laws that apply equally to commercial and noncommercial messages.

3. Facts, data, and disclosure as speech

• Texas v. Johnson, 491 U.S. 397, 404 (1989), was invoked by Jackson for the concept of conveying an understandable, particularized message. The court declined to treat that formulation as excluding ordinary factual disclosures from protection.

• Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011), directly undermined the proposed data–speech divide. Its recognition that facts are the starting point for much essential speech supported treating addresses and telephone numbers as protected information.

• Ostergren v. Cuccinelli, 615 F.3d 263, 271–72 (4th Cir. 2010), supplied circuit authority recognizing protection for publication of unredacted Social Security numbers in the circumstances presented there. Its significance was not that all sensitive disclosures are immune from regulation, but that sensitivity does not automatically remove factual publication from the First Amendment.

• Bartnicki v. Vopper, 532 U.S. 514, 527 (2001), reinforced the foundational point that disclosing and publishing information are speech activities. It supported rejecting Jackson’s threshold attempt to avoid First Amendment review.

4. Chilling effects and the absence of knowledge safeguards

Counterman v. Colorado, 600 U.S. 66, 75 (2023), supplied the observation that speech prohibitions can deter expression outside their lawful boundaries. The Fourth Circuit used that principle to explain why publishers facing liability for unknowingly including covered persons might suppress entire directories. It did not import the separate true-threats framework into this privacy dispute or prescribe a particular mental-state requirement for every disclosure law.

5. Truthful reporting and privacy

• The Florida Star v. B.J.F., 491 U.S. 524, 541 (1989), and Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 102–03 (1979), concerned punishment of news organizations for publishing lawfully obtained, truthful information. Jackson urged their use as an alternative framework. The court distinguished their carefully limited holdings and press-specific settings from a statute reaching a much broader universe of speakers.

• Atlas Data Priv. Corp. v. We Inform, LLC, 758 F. Supp. 3d 322 (D.N.J. 2024), illustrated that another court had evaluated New Jersey’s Daniel’s Law under the truthful-publication framework. The opinion noted the pending appeal. This was comparative authority, not controlling authority establishing the validity of West Virginia’s materially different provision.

• Soderberg v. Carrion, 999 F.3d 962, 964, 969 (4th Cir. 2021), supplied an independent answer: even if the truthful-reporting cases governed, strict scrutiny would still apply. Thus, the proposed alternative would not alter the outcome.

6. Privacy interests do not automatically reduce scrutiny

Am. Ass'n of Pol. Consultants v. FCC, 923 F.3d 159, 168 (4th Cir. 2019), affirmed under the name Barr v. Am. Ass'n of Pol. Consultants, 591 U.S. 610 (2020), demonstrated that legislation protecting personal and residential privacy can remain subject to strict scrutiny. These authorities countered Jackson’s proposed historical exemption for confidentiality laws. The court also found inadequate historical support for treating restrictions on ordinary address and telephone directories as a traditionally exempt category.

7. Commercial speech and economic motivation

• Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563–64 (1980), supplied the intermediate-scrutiny framework Jackson sought for commercial speech. The court did not reject that framework; it rejected its application to the statute as a whole.

• Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 108 (4th Cir. 2018), recognized economic motivation as relevant to identifying commercial speech. But Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 67 (1983), established that economic motivation alone is insufficient. Charging for access therefore did not automatically reduce the defendants’ informational publications to commercial speech.

• City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 596 U.S. 61, 68 n.3 (2022), supplied the additional obstacle: a law applying equally to commercial and noncommercial messages does not receive intermediate scrutiny merely because some regulated communications are commercial. West Virginia’s provision contained no general exemption for noncommercial disclosure.

C. Impact and Limits

Legislative drafting

The decision gives legislatures a concrete warning: a compelling security objective does not excuse avoidable burdens on protected publication. Notice-and-removal procedures, meaningful knowledge safeguards, or other effective narrowing mechanisms may better distinguish inadvertent disclosure from actionable noncompliance.

It does not establish a universal constitutional checklist. Nor does it conclusively uphold the federal statute or every other State’s Daniel’s Law. Although the opinion approvingly contrasts narrower enactments, only the challenged West Virginia provision was before the court.

Data brokers and other publishers

The reasoning protects informational publication beyond traditional journalism. Directories, searchable databases, and paid information services can engage in protected speech. Neither factual format nor a profit motive automatically removes constitutional protection.

Nevertheless, the decision does not confer blanket immunity on data brokers. More narrowly drawn disclosure restrictions, liability arising after notice, and other independently applicable legal duties remain separate questions.

Future privacy litigation

Future courts applying this reasoning will need to examine how a law operates, not merely its privacy label. Important questions include whether publishers can identify protected records, whether liability depends on knowledge or notice, whether a risk standard genuinely narrows coverage, and whether sanctions encourage suppression of lawful material.

The decision also illustrates the tension between digital aggregation and established public access. Jackson emphasized that searchable databases make information much easier to obtain and misuse. The court acknowledged those dangers but required the legislature to address them through sufficiently precise restrictions.

Questions left unresolved

The defendants’ vagueness challenge was not decided. The opinion also did not prescribe the exact language of a constitutional replacement, decide an appropriate notice period for West Virginia, or hold that every restriction lacking notice necessarily fails. Its facial holding rested on the combined breadth and operation of this particular provision.