from the the-JSPA-is-really-that-terrible dept

The US Supreme Court has a big year ahead with lots of weighty matters to consider in 2023. But the seriousness of their job doesn’t mean we can’t celebrate each justice’s special day! If you would like to know when to fill your heart with warm birthday wishes for your favorite justice, here are all their birthdays in this handy convenient form.

First up next year is the Chief Justice, with Chief Justice Roberts celebrating his birthday on January 27. Being born in 1955, he will turn 68. Then, hot on his heels, the very next day is Justice Barrett’s birthday, with her, a 1972 baby, turning 51. It falls on a Saturday, though, so perhaps there will be cupcakes in chambers to celebrate both on Friday?

Then while we are celebrating Lincoln’s birthday it will also be time to celebrate Justice Kavanaugh’s birthday too, who, having been born in 1965, will be turning 58. After that, April Fool’s! Because back in 1950 Justice Alito was born on April 1 and now will be 73.

At the end of the month we’ll fete the 63rd birthday of Justice Kagan, honoring her birth on April 28, 1960. After that, the justices will all be hard at work, penning many of their most important decisions from the term, and hopefully in time that Justice Thomas and Justice Sotomayor can enjoy their 75th and 69th birthdays without stress on June 23 and June 25, respectively, with him having been born in 1948 and her in 1954 (again, one falls on the weekend, so the best day for cupcakes definitely seems to be that Friday).

But it’s possible that Justices Gorsuch and Jackson will have to go without cupcakes at court, what with their 56th and 53rd birthdays falling during the summer, before the justices may have reconvened to hear cases for the next term. Justice Gorsuch celebrates his birth on August 29, 1967, and Justice Jackson celebrates hers on September 14, 1970.

In any case, if you would like to know the best days to exude festive birthday vibes towards the Supreme Court, now you do. But you’d better copy down this information now, because Congress is poised to make this post illegal.

The problem is the DAJSPA (Daniel Anderl Judicial Security and Privacy Act), which is back and currently glued onto this year’s must-pass NDAA bill, where Congress likes to put lots of bad bills that would never pass scrutiny if their colleagues actually had a chance to think about and separately vote on them. Because if they did stop to think about this bill, they might then notice the glaring First Amendment problem in how it prohibits the sharing of truthful and otherwise lawful information that the public is entitled to know, and may even need to know.  (As far as this post is concerned, see Sec. 5933(1)(A), which makes judges’ information subject to a prohibition against sharing, (4)(A) making the bill reach Supreme Court justices, and (2)(A)(viii) covering the full date of birth as data no one will be allowed to share.  See also Sec. 5934(d)(1)(B)(i) with the basic prohibition against sharing this information, and (f) supplying penalties, if one does anyway, although note that some of this language may be in flux, but the core prohibition so far is not.)

It is true, of course, that the motivation behind this bill comes from the genuine and serious concern of wanting to make sure our federal judges and their families are safe. Our constitutional order depends on them being able to dispense justice without fear of harm, and there is absolutely no quarrel with Congress generally wanting to put policy measures in place to make sure the judiciary can’t be disrupted by threats of violence. The issue is with the specific measure chosen, which is neither constitutional nor effective.

This law attempts to forbid the sharing of publicly available, truthful information, which is not a prohibition the First Amendment can tolerate. It is anathema to the Constitution to restrict discussion of public information, including and especially about government officials. Yet that’s what this bill does: hobble civilian oversight over public officials by taking away access to the information needed to do it. And it would do so without delivering any measurable increase in safety, because security via obscurity only creates the illusion of security – those determined to do harm will still be able to discover what they need to do it. (Including because this bill only makes it illegal to share this information online, which is also an unconstitutional distinction between online and offline speech, which is all supposed to be protected. Although it’s not like banning the sharing of this information in any form would make this bill any better.)

But even superficially, some of our judges and justices are the most significant public figures in American life with tremendous influence and power over millions of lives. Surely the idea that a law could prevent us from tweeting or tooting about their birthdays in a way that gives away their ages (which is, at minimum, relevant for senior status) should serve as a pretty clear indicator of the significant problems with this bill. Because if legislation stands to produce this sort of absurd by-product, then it’s inevitably producing a lot more ill-considered consequences we also can’t afford, as any law that tries to prevent the sharing of truthful information always will.

To forestall immediate disaster this bill, at minimum, needs to be removed from any must-pass legislation that Congress intends to get through without further consideration before the end of the year. But it is doubtful that even any further consideration will ever be able to produce language that can successfully avoid the huge problems it portends, because at its very core what this bill intends to do is such a direct affront to what the First Amendment protects, and why.

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