As our readers well know, one particular entity has sued a litany of companies for allegedly violating a New Jersey State privacy law known as Daniel's Law. Our readers also know that many of these companies have appealed a decision from New Jersey's district court in which the court upheld Daniel's Law constitutionality. In an earlier piece, we summarized the oral argument that was held in July at the United States Court of Appeals for the Third Circuit ("Third Circuit"). Before the Third Circuit determines whether Daniel's Law can survive these constitutionality challenges, the Third Circuit has issued an order certifying two questions for the New Jersey State Supreme Court's consideration. Below, we discuss the Third Circuit's Order in greater detail, the questions the Third Circuit has asked the New Jersey Supreme Court to consider, and how the answers to these questions may shape the future of Daniel's Law.
Questions About Daniel's Law for New Jersey's Supreme Court
Numerous companies sued for allegedly violating Daniel's Law sought to dismiss claims asserted against them on the grounds that the law violates their constitutional First Amendment right to free speech because the law regulates: (1) speech based on its content and, as such, Daniel's Law must (and fails to) satisfy strict scrutiny; and (2) protected speech because it makes defendants strictly liable without any regard to the alleged speaker's state of mind. After the District Court denied a motion to dismiss and upheld Daniel's Law on constitutionality grounds, Defendants appealed, the Third Circuit expedited the case and heard oral argument on July 9, 2025.
In deciding whether to certify a state-law question to the New Jersey State Supreme Court, the Third Circuit analyzed whether: (1) the resolution of the question(s) is/are unclear and control(s) an issue in the case; (2) the question(s) is/are important; and (3) judicial economy favors certification. After determining that all three factors favored certification, on September 2, 2025, the Third Circuit issued an order to the Supreme Court of New Jersey certifying the following questions: (1) does Daniel's Law require a mental state for liability for any of Daniel's Law elements?; and (2) if the answer is yes, then what level of mental state is required for each element?
What Is The Future of Daniel's Law?
Generally, laws that regulate speech based on content trigger strict scrutiny and only survive if narrowly tailored to serve a compelling governmental interest. No one disputes that Daniel's Law serves a compelling governmental interest. As written, however, Daniel's Law does not contain a state of mind requirement, and violators are strictly liable for actual or statutory damages, injunctions, and attorneys' fees and costs. As the United States Supreme Court opined, the lack of a mental state requirement suggests that a law is too sweeping and that there exists alternatives to tailoring that law. The absence of any mental state requirement in Daniel's Law is especially concerning because the law regulates protected speech (i.e., home addresses and home telephone numbers of "covered persons," as defined under the law).
In its order, the Third Circuit noted that if portions of Daniel's Law call for strict liability, the relevant portion of Daniel's Law may be unconstitutional no matter the level of scrutiny it applies. While it remains to be seen how New Jersey's Supreme Court will answer the questions that the Third Circuit certified, those answers likely will determine how the Third Circuit rules on the issue of constitutionality.
The attorneys at Klein Moynihan Turco ("KMT") have been at the forefront in considering Daniel's Law claims which target companies in the consumer data marketing space. KMT regularly advises clients on compliance with Daniel's Law and various other state and federal privacy laws.
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