SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0216- 23 CHARLES KRATOVIL, Plaintiff-Appellant,

v. CITY OF NEW BRUNSWICK and ANTHONY A. CAPUTO, in his capacity as Director of Police, Defendants-Respondents.

__ ____________________________

Argued January 29, 2024

– Decided April 26, 2024Before Judges Gilson, DeAlmeida, and BishopThompson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No . L- 3896

- 23. Alexander R. Shalom argued the cause for appellant (American Civil Liberties Union of New Jersey Foundation, attorneys ; Alexander R. Shalom and Jeanne M. LoCicero, on the briefs ). Susan K. O'Connor argued the cause for respondents (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys ; Susan K. O'Connor, of counsel and on the

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court. " Although it is posted on the internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0216

- 23 brief; Roland Rachel-Leigh Adelman, Christy Leigh Cushing, Michael V. Manning, and Niki A. Waters, on the brief). Vito Anthony Gagliardi, Jr., argued the cause for amicus curiae New Jersey State Association of Chief s of Police (Porzio, Bromberg & Newman, PC, attorneys ; Vito Anthony Gagliardi, Jr., of counsel; David Lawrence Disler and Thomas J. Reilly, on the brief ). Richard Joseph De Fortuna argued the cause for amicus curiae New Jersey State Lodge of the Fraternal Orde r of Police (Markowitz & Richman, attorneys ; Matthew D. Areman and Richard Joseph De Fortuna, on the brief).
P au l Lewis Kleinbaum argued the cause for amicus curiae New Jersey State PBA (Zazzali PC, attorneys ; Paul Lewis Kleinbaum and Sheila Murugan, on the brief). Randolph E. Mershon, III, argued the cause for amic us curiae County Prosecutors Association of New Jersey (County Prosecutors Association of New Jersey , attorneys; Joseph B. Paravecchia and Laura C. Sunyak , of counsel ; Randolph E. Mershon III, of counsel and on the brief ). Robert Rudden Cannan argued the cause for amicus curiae State Troopers Fraternal Association of New Jersey ( Mar kman & Cannan, attorneys ; Robert Rudden Cannan, on the brief). Frank L. Corrado argued the cause for amicus curiae Reporters Committee for Freedom of the Press (Barry , Corrado & Grassi, Katie Townsend (Reporters Committee for Freedom of the Press) of the Californ ia, New York, and District of Columbia bars, admitted pro3 A- 0216

- 23 hac vice, Mara Gassmann (Reporters Committee for Freedom of the Press) of the Virginia and District of Columbia bars, admitted pro hac vice, and Julia Dac y (Reporters Committee for Freedom of the Press) of t he District of Columbia bar, admitted pro hac vice, attorneys ; Frank L. Corrado , Katie Townsend, Mara Gassmann, and Julia Dacy, on the brief ). PER CURIAM Plaintiff Charles Kratovil, who writes for and edi ts an online publication , brought an as-applied constitutional challenge to D aniel's Law, N.J.S.A. 56:8- 166.1; N.J.S.A. 2C:20-31.1. Daniel's Law provides, among other things, that upon notice, a person shall not disclose the home a ddresses of certain public officials, including judges, prosecutors, and law e nforcement personnel. Defendants the City of New Brunswick (the City) an d Anthony Caputo, the former Director of the City's Police Department , notified plaintiff that he should not re-publish Caputo's home address. Plain tiff appeals from an order dismissing his complaint and denying his request fo r injunctions prohibiting defendants from applying Daniel's Law to him if he re-publis hes Caputo's home address. Because Daniel's Law as applied to plaint iff in these circumstances does not violate his constitutional rights of free speech and free press, we affirm.4 A- 0216

- 23 I. The material facts are not in dispute. We discern those facts from plaintiff's complaint and the record on plaintiff's motion for injunctive relief. Because the trial court also dismissed plaintiff's complaint , we view the facts in the light most favorable to plaintiff. See Smerling v . Harrah's Ent., Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). Plaintiff is a journalist who writes for and edits New Brunswick Today, an online publication. As the name of the publicat ion suggests, it focuses on local news about the City. Defendant Caputo is a retired police officer who t hen became Director of the City's Police Department. Caputo was also a Co mmissioner of the City's Parking Authority. He served in both those positio ns through 2023 and retired from those positions in early 2024. In 2023, plaintiff noted that Caputo was not atten ding City Council meetings, nor was he regularly attending Parking Au thority meetings in person

. On March 14, 2023, plaintiff sent Caputo an email a sking if Caputo still lived in the City. The Deputy Director of Police respond ed on Caputo's behalf, stating, in relevant part: "The public release of a law enforcement officer's place of residence is protected under Daniel's Law."5 A- 0216

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Plaintiff came to believe that Caputo was living i n Cape May. To confirm that belief, plaintiff filed a request under the Op en Public Records Act (the OPRA), N.J.S.A. 47:1A -1 to - 13 , with the Cape May County Board of Elections (the Cape May Board), requesting Caputo's voter pro file. Initially, the Cape May Board provided a redacted version of Caputo's votin g profile to plaintiff in March 2023. After follow-up communications from plai ntiff, in April 2023, the Cape May Board produced a voter profile with fewer redactions. That voter profile included Caputo's home address. At meetings of the City's Parking Authority and th e City Council conducted on March 22, 2023 and April 5, 2023, respectively, plaintiff asked if Caputo still lived in the City. Neither Caputo nor anyone else from the City definitively responded to plaintiff's question. On May 3, 2023, plaintiff attended another City Co uncil meeting. The City and plaintiff separately recorded that meeting. Dur ing the public comment portion of the meeting, plaintiff discussed Caputo' s change of residence, that Caputo's residence in Cape May was approximately a two-hour drive from the City, and that Caputo was serving on the City's Par king Authority even though he was a non-resident. During that discussion, pla intiff stated the street name in Cape May where Caputo was registered to vote. He also provided City6 A- 0216

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Council members with copies of Caputo's voter profi le, which included Caputo's complete home address. On May 15, 2023, plaintiff received a letter notif ying him that Caputo was invoking Daniel's Law to prevent re -publication of his home address. That letter stated: On Wednesday, May 3, 2023, you published and/or

announced my home address at a public meeting of th e New Brunswick City Council. Kindly accept this letter [as] a written notice as required by [Daniel's Law]

. Pursuant to N.J.S.A. 2C:20- 31 .1 and N.J.S.A. 56:8- 166.1, and as an authorized and otherwise covered person whose home address and unpublished home telephone number are not subject to disclosure, I d o hereby request that you cease the disclosure of suc h information and remove the protected information fr om the internet or where otherwise made available. I trust you will be guided accordingly. On July 12, 2023, plaintiff filed a verified compl aint and order to show cause seeking temporary and p er manent restraints. Plaintiff stated that he planned to publish an article about Caputo living i n Cape May, which would include Caputo's home address. So, plaintiff sough t a declaration that Daniel's Law was unconstitutional as applied to his intended publication. He also sought preliminary and permanent injunctions prohibiting d efendants from seeking to impose civil or criminal sanctions on him if he published Caputo's home address.7 A- 0216

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Finally, plaintiff sought attorney's fees and costs under the New Jersey Civil Rights Act, N.J.S.A. 10:6 -1 to -2. In accordance with Rule 4:28 -4, plaintiff provided notice to the New Jersey Attorney General that he was constitutionall y challenging Daniel's Law. Eventually, the Attorney General declined to interv ene in this case. In a letter submitted to the trial court, the Attorney General explained that although he had an interest in defending Daniel's Law from a facial constitutional challenge, he deem ed plaintiff's actions to be a n as -applied challenge, which was limited to the specific facts of this case. In that regard, t he Attorney General stated: "Plaintiff's entire theory rests on his factual ass ertions that he obtained the underlying information lawfully, that the informati on is otherwise still available, and that he is a journalist who wishes to publish t hat information in a story relat ing to a high-level official's residency." After plaintiff amended his complaint, the trial c ourt issued an order directing defendants to show cause why they should not be enjoined. On September 21, 2023, the trial court heard arguments on plaintiff's application. At the end of arguments, the court announced its de cision on the record and8 A- 0216

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denied all relief requested by plaintiff

. The court also dismiss ed plaintiff's complaint. That same day, the court issued an orde r memorializing it s rulings. 1 In explaining its decision, the trial court found t hat plaintiff had obtained Caputo's home address lawfully through an OPRA requ est to the Cape May Board. Accordingly, the trial court rejected defen dants' argument that plaintiff had illegally or improperly obtained the informatio n by misleading the Cape May Board into disclosing Caputo's home address. Turning to the substance of plaintiff's constituti onal challenge, the trial court reasoned that plaintiff was a journalist and that the distance between where Caputo lived and where he worked was a matter of pu blic concern. The court held, however, that the relevant information was th at Caputo lived in Cape May , and that his exact street address was not a matter of public concern. The court then held that Daniel's Law was constitutional as a pplied to plaintiff's situation because the law was narrowly tailored to achieve a governmental interest of the highest order: protecting State officials from pot ential acts of violence and harassment.

1 The trial court took the proposed order submitted by plaintiff, stamped "DENIED" on that order, and crossed out the various provisions of relief sought by plaintiff. The order was entitled, "FINAL ORDER ." We note that it would have been a better practice for the court to have p repared its own order setting forth its rulings.9 A- 0216

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Following the trial court's ruling, plaintiff soug ht appellate emergent relief. Both we and the Supreme Court denied plain tiff's request, but the Supreme Court directed that the appeal "should proc eed expeditiously to the extent practicable." Thereafter, we granted plaint iff's application to accelerate this appeal.
II. On appeal, plaintiff argues that Daniel's Law is u nconstitutional as applied to his intention to publish Caputo's home address b ecause he obtained that address lawfully and it is a matter of public concern. He argues that Dan iel's Law as applied to his intended publication is not n arrowly tailored and does not protect "a need of the highest order." In making t hose arguments, plaintiff relies on the United States Supreme Court's decision in Sm ith v. Daily Mail Publishing Co., 443 U.S. 97 (1979), and a line of cases applyin g the principle announced in that decision. The Reporters Committee for Freedom of the Press a nd several other media organizations filed an amicus brief in suppor t of plaintiff's position. Those amici argue that applying Daniel's Law to pla intiff's publication of Caputo's home address would be an unconstitutional prior restraint on speech and would punish the publication of lawfully obtain ed truthful information about10 A- 0216

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a matter of public concern. Those amici also argue that application of Daniel's Law to plaintiff will stifle journalism. Finally, they contend that the trial court's ruling effectively infringed on the constitutionall y protected exercise of plaintiff's editorial discretion. In response, defendants argue that Daniel's Law di d not and will not impinge on plaintiff's First Amendment rights becau se Caputo's exact home address is not a matter of public concern. They al so argue that Daniel's Law is constitutional because it protects a State interest of the highest order and is narrowly tailored. Several law enforcement organizations filed amic us briefs support ing defendants' positions. Those amici include the New Jersey State Association of Chiefs of Police, the New Jersey State Lodge of the Fraternal Order of Police, the County Prosecutors Association of New Jersey, the Sta te Troopers Fraternal Association of New Jersey, and the New Jersey State Policemen's Benevolent Association. The amici law enforcement association s echo defendants' arguments that Daniel's Law supports a compelling g overnment interest in protecting the safety of certain government officia ls and their families. They also argue that Caputo's precise home address is pr ivate and should not be subject to the same free speech protections as matt ers of public concern.11 A- 0216

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We review the se issues de novo. When a matter implicates First Amendment freedoms, appellate courts "'make an inde pendent examination of the whole record,' to ensure that 'the judgment doe s not constitute a forbidden intrusion on the field of free expression.'" Ward v. Zelikov sky , 136 N.J. 516, 536 -37 (1994) (quoting Milkovich v. Lorain J. Co., 497 U.S. 1, 17 (1990)); s ee also Rutgers 1000 Alumni Council v. Rutgers, 353 N. J. Super. 554, 567 (App. Div. 2002) (explaining that First Amendment cases r equire a de novo review). Moreover, the trial court essentially treated the m otion as a motion to dismiss because, after denying plaintiff's request for inju nctive relief, the court dismissed plaintiff's complaint. We, therefore, re view that dismissal de novo. See Doe v. Est. of C.V.O., 477 N.J. Super. 42, 54 ( App. Div. 2023). To put plaintiff's as-applied constitutional chall enge in context, we summarize Daniel's Law and the relevant constitutio nal protections afforded to free speech and free press.
A. Daniel's Law. Daniel's Law was enacted by the Legislature and si gned into law by the Governor on November 20, 2020. L. 2020, c. 125, §§ 5- 6. The law was named for Daniel Anderl, the son of United States Distric t Court Judge Esther Salas. In 2020, a disgruntled attorney went to Judge Salas ' home and shot and killed12 A- 0216

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Daniel. The assailant also severely wounded Judge Salas' husband. The assailant had found Judge Salas' home address on th e internet. Daniel's Law is intended to prevent further attack s on certain government officials and their families. It prohibits the dis closure of residential addresses and personal phone numbers of "covered persons," in cluding active and retired judges, prosecutors, and law enforcement officials. N.J.S.A. 56:8-166.1(d);
N.J.S.A. 2C :20 -31.1(a). Moreover, Daniel's Law provides that on notice, a person, business, or association shall not disclose or re-disclose the home address or telephone number of a covered person. N .J.S.A. 56:8-166.1(a)(1). Daniel's Law imposes civil penalties for violations , including $1,000 per violation, punitive damages, and attorney's fees. N.J.S.A. 56:8-166.1(c). In addition, a "reckless violation of [Daniel's Law] i s a crime of the fourth degree, " and a "purposeful violation of [Daniel's Law] is a crime of the third degree." N.J.S.A. 2C:20-31.1(d).
B. The First Amendment. The First Amendment, which applies to the states t hrough the Fourteenth Amendment, provides that governments shall not make any law "abridging the freedom of speech." U.S. Const. amend. I. In prot ecting free speech, the New Jersey Constitution declares: "Every person may fr eely speak, write and publish13 A- 0216

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his [or her] sentiments on all subjects, being resp onsible for the abuse of that right. No law shall be passed to restrain or abrid ge the liberty of speech or of the press." N.J. Const. art. I, ¶ 6. In a line of cases, the United States Supreme Cour t has repeatedly held that "if a newspaper lawfully obtains truthful info rmation about a matter of public significance[,] then state officials may not constitutionally punish publication of the information, absent a need to fu rther a state interest of the highest order." Daily Mail, 443 U.S. at 103; see also Fl a. Star v. B.J.F., 491 U.S. 524, 533 (1989) ( quoting Daily Mail and reaffirming that principle). In Daily Mail, the Court held that the criminal indict ment of two newspapers was unconstitutional under a state statute that forbid newspapers from publishing the name of any youth charged as a juvenile offender. 443 U.S. at 105

- 06. The newspapers had learned of a shooting by monitoring a police radio frequency and had obtained the juvenile's name from wit ne ss es and law enforcement personnel. Id. at 99. The Court explained "that s tate action to punish the publication of truthful information seldom can satisfy c onstitutional standards. " Id. at 102. The Supreme Court has applied the principle articul ated in Daily Mail in a l ine of cases decided both before and after the Daily M ail decision. See Cox14 A- 0216

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Broad. Corp. v. Cohn, 420 U.S. 469 (1975) (finding it unconstitutional to hold a broadcasting company civilly liable where a telev ision station owned by the company had broadcasted the name of a rape-murder v ictim, which the station had obtained from courthouse records); Okla . Publ'g Co. v. Dist. Ct. in and for Okla. Cnty., 430 U.S. 308 (1977) (declaring unconst itutional a state court's pretrial order enjoining the media from publishing the name or photograph of an eleven-year-old boy in connection with a juvenile p roceeding involving that child, which reporters had attended); Fla. Star, 49 1 U.S. at 532 ( holding unconstitutional damages imposed on a newspaper for publishing the name of a rape victim in violation of a state statute when th e newspaper had obtained the victim's name from a publicly released police report). In establishing and reiterating the Daily Mail pri nciple, the Supreme Court has been careful to base each of its decisions on t he facts of the case before it. See Daily Mail, 443 U.S. at 105 (explaining that the Court 's holding in that case was "narrow")

. In that regard, the Court has explained that its r ulings were based on the facts of the cases, and it has "eschew ed" pronouncing broad rules. Fla. Star, 491 U.S. at 532-3 3. The Court has also declined to decide whether a sta te's prohibition of the publication of private information is necessarily a prior restraint. See Daily15 A- 0216

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Mail, 443 U.S. at 101- 02

. Nevertheless, the Court has reasoned that resolutio n of these types of cases does not depend on whether a prior restraint was imposed. Id. at 101. Instead, the Court has held that First Amendment pr otections "reach [] beyond prior restraints" and that the relevant issu e is whether the statute imposes a sanction on the publication of lawfully obtained truthful information. Id. at
101

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. Penalizing publication of lawfully obtained "truthf ul information about a matter of public significance" is only constituti onal when the state is protecting a compelling state interest or has "a need to furth er a state interest of the highest order." Id. at 103; see also Fla. Star, 491 U.S. a t 536-3 7. C. Application of the Law to the Facts of This Case. The undisputed facts of this case establish that p laintiff's First Amendment rights have not been violated. All parties agree, and the record confirms, that the matter of public concern was that Caputo lived in Cape May while serving as the City's Director of Police and a Commission er of the City's Parking Authority

. In responding to plaintiff's complaint, defendants conceded, and the trial court subsequently held, that plaintiff alway s had the right to publish that Caputo lived in Cape May, which was a substantial d istance from the City , without being subject to Daniel's Law sanctions. We agree with the trial court's determination that in light of plaintiff's ability to publish that Caputo lived in16 A- 0216

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Cape May without fear of sanction, he was not entitled to injunctive relief. The trial court's conclusion that Caputo's exact street address is not a matter of publi c concern is supported by the record and consistent w ith the law. In that regard, we also agree with the trial court that protecting public officials from violent attacks and harassment is a compelling State intere st of the highest order. Consequently, given the facts of this case, the tri al court correctly determined that plaintiff was not entitled to injunctive relie f. Neither the City nor Caputo imposed a prior restra int on plaintiff. Indeed, the only notice concerning Daniel's Law came on beh alf of Caputo. Caputo did not enjoin plaintiff from publishing his home addre ss. Instead, he pointed out that if plaintiff proceeded to publish the home add ress, plaintiff would be subject to civil penalties and potentially criminal penalti es. Obviously, Caputo, as the City's then-Director of Police, could not impose ci vil or criminal penalties. Instead, those penalties w ould ha ve to be imposed by a court. See N.J.S.A. 56:8

- 166.1(b) to (c); N.J.S.A. 2C:20-31.1(d). There is a commonsense resolution to this as-appli ed challenge to Daniel's Law. Plaintiff was not prohibited from discussing or publishing the matter of public concern; that is, that Caputo, then a high -ranking City official, lived in Cape May, a substantial distance from the City. He was warned not to publish17 A- 0216

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the specific street name and number because that pu blication might violate Daniel's Law. No penalty was imposed, and no prior court-ordered injunction was issued. We reject the argument that there was a chilling e ffect or an unconstitutional editing by the trial court. The a mici supporting plaintiff's position argue that the trial court effectively infringed on plaintiff's editorial discretion by not enjoining any potential sanctions under Daniel's La w if plaintiff published Caputo's specific address. They point out that the United States Supreme Court has held that the First Amendm ent prohibits government from "tampering, in advance of publication, with ne ws and editorial content."
Mi a. Herald Publ'g Co. v. Tornillo , 418 U.S. 241, 25 9 (1974) (White, J., concurring). They argue that "neither defendants n or the court should determine that a city or street name

— rather than a home address

— suffices to fully report a story like the one [plaintiff] is pursuing." The trial court, however, did not tell plaintiff w hat he could or could not publish. Instead, the trial court ruled on the issue before i t and denied plaintiff's request for temporary and permanent injunctive reli ef against defendants. In that regard, the trial court stated that the public ation of the town where Caputo lived was a matter of public concern, but Caputo's specific street address was18 A- 0216

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not

. The trial court did not, however, enjoin or restra in plaintiff from publishing a story about where Caputo lived while he was a Cit y official. In other words, in denying plaintiff's request for injunctive relie f, the trial court did not direct how plaintiff should act in the future. Therefore, pla intiff can evaluate Daniel's Law and decide how he will proceed. Affirmed.