Contributor, The Volokh Conspiracy

From the Appellate Court of Illinois decision last week in Weddigen v. Weddigen:

James Weddigen … was found in … contempt of court for comments he posted on the online social networking site, Facebook. The trial court’s purge order required respondent to post further comments on Facebook apologizing, recanting, and correcting his previous comments….

[James Weddigen] posted a comment on the Facebook page of the Illinois Fathers Non–Profit Organization, [stating,]

“On March 20, 2014, the Illinois Supreme Court declared the Illinois Eavesdropping Act of 1961 to be UNCONSTITUTIONAL. (State of Illinois v. Melongo, 2014 IL 114852). I recorded my hearing today and I encourage all of you to do so as well…. This is going to raise a lot of issues with the court, but they should have thought of that before they turned the court system into a revenue center for the county.” …

He also posted instructions on how to effectively get a cellular telephone through court security in order to record the hearing. He posted the following:
“I’d recommend you dress like an attorney and say it’s your calendar. I’ve been denied before. A guard in Champaign asked if I was an attorney. I said no. He told me to take my phone back to my vehicle. The next time I said yes. And I walked right through.”

This got him into trouble with the trial judge, Steven H. Nardulli, because recording court hearings violates Ill. Sup. Ct. R. 63(A)(8): “The taking of photographs in the courtroom during sessions of the court or recesses between proceedings, and the broadcasting or televising of court proceedings is permitted only to the extent authorized by order of the supreme court.” Judge Nardulli held a hearing about this, and Weddigan told the judge that his post on Facebook was a lie; he wanted “to encourage others to invoke their [first] and [fourteenth] amendment rights” by recording the proceedings, but he hadn’t done so himself. Judge Nardulli said he would “accept respondent’s statement ‘that he did not actually record these proceedings.’”

But the court ruled that encouraging people to record hearings was itself contempt of court, and that Weddigan could only avoid punishment for that by publicly apologizing for his post, and telling people not to record hearings:

The court finds [respondent] in … contempt of court for his Facebook posting admonishing others to electronically record family court proceedings. [Respondent] may purge himself of his contempt by making a public statement on the Facebook page on which he made his statement to the effect that he was in error as to the law regarding the electronic recording of family court proceedings, apologizing to anyone who may have read his posting, and advising others to refrain from electronically recording family court proceedings.

Later, the judge explained that the required apology and further statements were intended to make Weddigan “correct[] the misapprehension that he has created with every person who goes on this website.” When Weddigan refused, “[t]he court imposed a sanction of $100 per day until respondent ‘completes his purge as ordered.’” The judge also noted that, though the Illinois Supreme Court had indeed struck down Illinois’s general statute banning certain kinds of surreptitious recordings (an argument that Weddigan had used in supporting his advocacy of recording of court hearings), Illinois Supreme Court Rule 63 remained valid as a control on what goes on in courtrooms.

The appellate court set aside the contempt order on procedural grounds. Contempt of court falls in “civil” and “criminal” varieties (though the civil variety can involve the threat of jailing), depending on what the trial court is trying to do. This case, the appellate court said, ended up involving criminal contempt punishment rather than just, as the trial court argued, civil contempt:

Rather than coercing respondent into complying with the court’s directives of refraining from recording any hearing [the function of civil contempt], the court sought to punish and sanction respondent for his past conduct of posting comments [the function of criminal contempt]. The court found respondent’s comments offended the dignity and repute of the court, and said respondent’s postings “tend to encourage disruption in this court and other courts.” Given the circumstances presented, we conclude the dominant purpose of the contempt proceedings related to Facebook was to punish respondent’s past conduct of posting the disparaging comments. In other words, indirect criminal contempt was the proper designation of respondent’s conduct. (Indirect because it was done outside the presence of the court.)

And the appellate court concluded that the trial court order was invalid because the proper procedures for criminal contempt proceedings weren’t followed

[R]espondent was not given written notice of the charge, or notice he could be held in indirect criminal contempt…. [Moreover,] The prayer for relief referred to a motion for a rule to show cause as to why respondent should not be held in contempt, “further implying that the contempt proceedings were civil in nature.” … [I]n criminal contempt proceedings, the burden should not be placed on the contemnor to explain his position or to “show cause” as to why he should not be held in contempt.

And because the contempt order was overturned on procedural grounds, the appellate court majority didn’t reach the husband’s First Amendment’s objections.

But one of the appellate judges, Judge Steigmann, wrote a concurring opinion that did reach the First Amendment issue:

Although fully agreeing with the majority, I write separately to express my dismay regarding the contempt proceedings that occurred in this case. Respondent’s postings on social media were clearly entitled to first-amendment protection, and the contempt proceedings in this case violated his first-amendment rights. That the attorney who brought those contempt proceedings is one of the most respected members of the Sangamon County divorce bar and the judge who entered the contempt findings is one of the most experienced and well-regarded trial judges in central Illinois compels me to write this special concurrence. If a lawyer and judge of their deserved repute do not realize the first-amendment implications of their actions in this case, then further guidance is obviously needed.

The concurrence noted that even incitement of crime can only be punished if it’s intended to and likely to incite imminent criminal conduct, and that “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it” (Ashcroft v. Free Speech Coalition [2002]). And it went on to say:

The worst that can be said of respondent’s conduct is that he urged persons attending trial court proceedings to record them despite an Illinois Supreme Court rule forbidding that conduct…. However unwise or unwarranted recording trial court proceedings may be, what respondent urged here is a violation of trial court protocol that I have serious doubts would even constitute criminal behavior.

And exactly how pressing an issue in the first place was respondent’s advocacy of violating this rule? Thus, as Justice Brandeis wrote in Whitney v. California (1927) (Brandeis, J., concurring), “even imminent danger cannot justify” restrictions on speech “unless the evil apprehended is relatively serious.” Recording trial court proceedings in violation of an Illinois Supreme Court rule falls far short of that standard.

Trial courts have alternative means of ensuring that the supreme court rule prohibiting recording in the courtroom is enforced. For instance, many courthouses (1) bar the entry of persons with cell phones or other devices which can record courtroom proceedings and (2) require people who wish to enter to go through scanning devices to detect any metal objects they may be carrying. And, of course, persons who are caught actually violating that proscription are subject to punishment, which in itself (especially if publicized) should serve as a deterrent to others considering such conduct.

And, the concurrence argued,

As bad as the original contempt finding may have been, the so-called “purge order” was manifestly worse. It constitutes an example of “compelled speech” reminiscent of Stalinist show trials or Vietnam “Re-education Camps,” circa 1976. The trial court was completely without any legal justification to impose such an order.

Sharp words, which reflect a sharp disagreement about the scope of a judge’s power over litigants. I’m on Judge Steigmann’s side on the merits, even if the rhetoric might be a bit excessive.