The Hon. Robert Gettelman of the Northern District if Illinois says yes.
Kevin Trudeau, who is apparently an infomercial salesman and radio personality in Chicago, was a litigant in a civil case before Judge Gettelman. Trudeau urged his listeners to email the judge and to encourage the judge to rule in Trudeau’s favor. After receiving hundreds of messages, Gettelman found Trudeau in contempt and sentenced him to 30 days in jail. The Seventh Circuit stayed the sentence while it considered whether the judge had the authority to punish conduct which occurred only in the court’s “virtual presence,” rather than in the courtroom; arguments were heard on April 7. The contempt order can be read here.
The Seventh Circuit is said to be concerned with the interesting question of whether Trudeau’s urging of the listeners can constitute contempt despite the fact that it did not occur in the judge’s direct presence. I am not familiar with the statutes, if any, which are applicable to Trudeau’s case, but under Ohio law it seems to me that the answer would be yes. R.C. 2705.01 permits “[a] court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.” It appears that as a practical matter the misbehavior was quite near the judge, as it showed up in his inbox and froze his BlackBerry. On the other hand, the misbehavior which manifested in the judge’s inbox was perhaps not Trudeau’s misbehavior at all, but rather that of his radio listeners. Although Trudeau surely asserted it, it is hard to see any First Amendment defense here.
From what I can tell, the crux of this case is only whether inconvenience of the email is punishable. The court is evidently not concerned with the propriety of a party asking others to lobby on his behalf, which may be contempt regardless of where it occurs; because judges frequently admonish litigants to avoid engaging in that sort of advocacy, such action could be a violation of a direct court order, and therefore surely punishable.
In any event, this is just yet another example of the confluence of electronic media and traditional notions of justice. We have seen this pop up several times recently, including service of an injunction and/or CIA surveillance through Twitter, trademark infringement claims in online advertising, the Supreme Court prohibiting YouTube coverage of the Prop 8 trial, and more.
This post was written by Jeffrey M. Nye.
