Thinking Outside the Dox: The First Amendment and the Right to Disclose Personal Information
91 UMKC L. Rev. 1 (2022)
55 Pages Posted: 22 Sep 2022
Date Written: September 1, 2022
As of the end of 2021, seven states – Arizona, Colorado, Florida, Kentucky, Minnesota, Oklahoma and Oregon – had enacted laws explicitly targeting the practice of “doxing,” which lawmakers have generally defined as involuntarily disseminating home contact information about police officers and others with sensitive jobs who might be targets of vengeful people. In none of these states is there any significant evidence that lawmakers debated the First Amendment implications of making it a crime to publish lawfully obtained information about government employees. That debate is overdue. This Article attempts to provide cautionary guidance about both the constitutional risks and the practical trade-offs that policymakers should take into account before following the lead of the early adopters and creating a new “information crime” of doxing.
The authors describe how “doxing” has become weaponized and “defined down” in contemporary political discourse to be synonymous with “disclosing unwelcome information” – even though “disclosing unwelcome information” could also be a synonym for “journalism.” The article critiques legislators’ focus on protecting the least-vulnerable classes of people – specifically, elected officials and police officers – whose behavior is supposed to be the most freely open for public discourse, while the truly vulnerable people for whom “doxing” was coined (e.g., women targeted for misogynist online harassment) remain unprotected. The authors examine the first wave of doxing statutes up against established First Amendment doctrine and conclude that many, if not most, of the proposed and enacted anti-doxing measures are constitutionally infirm. Among their many flaws, these enactments broadly purport to criminalize the disclosure even of harmless everyday public information – including, in some instances, office phone numbers and email addresses of government officials – if done with the requisite mental state. Because mental state is typically a jury question, the likely result is that editorial commentators and activists will find themselves denied summary dismissal and attempting to defend their purpose for making disclosures in front of juries. In particular, Florida’s 2021 statute is singled out as indefensibly broad and ripe for facial challenge, because it criminalizes not only inciting people to violence, but “incitement-once-removed” – that is, inciting others to engage in incitement – which almost certainly runs afoul of the Supreme Court’s protective Brandenburg standard.
In view of the antisocial behaviors that are widely agreed to constitute “doxing,” the authors conclude that police and prosecutors already have ample legal tools to pursue threats, identity theft, harassment and other constitutionally unprotected acts, without layering on redundant – and chilling – additional new penalties that assuredly will be used to target critics of police and elected officials. If there is dissatisfaction that truly unlawful trolling behavior is going unpunished, the remedy is not to enact constitutionally dubious new prohibitions, but to make the public-policy decision to prioritize these offenses and equip law enforcement with targeted resources to pursue them.
Keywords: doxing, doxxing, First Amendment, online speech, harassment, free speech, trolling, newsgathering, privacy
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