Judge Orders Man Who Violated Recording Ban To Publish An Essay About Respecting The Court AND To Delete All Negative Comments From Readers
from the you-weren't-doing-anything-with-your-free-speech-rights-anyway dept
Eugene Volokh of the Volokh Conspiracy highlights a very unusual court order that seems to think the First Amendment is only for people who haven’t pissed off judges.
The background of the case is this: Davin Eldridge frequently attended proceedings at the Macon County Courthouse. Despite signs stating that recording devices were prohibited in the court, Eldridge brought in recording devices and recorded proceedings.
He was caught on more than one occasion, with Eldridge’s latest attempt at not-all-that-much-subterfuge-tbh interrupted by the presiding judge. From the court order [PDF]:
While in the courtroom, defendant was observed sitting on the second row with a cell phone, holding it “shoulder-chest level” towards the front of the courtroom. The officer went over to defendant and instructed him to put his phone away. Defendant replied, “I’m not doing anything.” The Honorable William H. Coward, Superior Court Judge of Macon County, was presiding over a criminal matter at that time. Judge Coward was informed that a live posting of the hearing in session was streaming from a Facebook page. Based on that information, Judge Coward interrupted the hearing to issue a reminder that recordings of courtroom proceedings were prohibited by law. At the conclusion of the hearing, Judge Coward viewed the Facebook postings by defendant, which included footage of the inside of the courtroom and the prosecutor presenting his closing argument.
Eldridge was ordered to return to the court later that day to be spoken at by Judge Coward. Eldridge did not do this.
Four days later, the court ordered Eldridge to show why he should not be held in contempt of court for his recordings and his failure to return to the court on November 28. Eldridge responded by trying to have Judge Coward recused. This was denied and Eldridge was given a 30-day jail sentence.
Eldridge appealed this finding of contempt and the denial of his recusal request. The North Carolina Appeals Court affirmed everything Judge Coward’s court had handed down (including Judge Coward’s non-recusal). Unfortunately, this means the state Appeals Court saw nothing wrong with the punishment handed down by Judge Coward — one that looks like a whole lot of imposition on Eldridge’s First Amendment rights and the introduction of some unjustified (and likely impossible) moderation demands.
Along with a suspended sentence and fines and fees, the court ordered Eldridge to do this:
[D]raft a 2,000-3,000 word essay on the following subject: “Respect for the Court System is Essential to the Fair Administration of Justice,” forward the essay to Judge Coward for approval, and following approval, post the essay on all social media or internet accounts that defendant owns or controls or acquires hereafter during his period of probation and attributed to defendant, without negative comment or other negative criticism by defendant or others, during said period of probation…
Compelled speech is fine, says the Appeals Court. Actually, it doesn’t say exactly that because Eldridge never bothered to raise a First Amendment argument. But that’s the end result of this opinion, which upholds the sentence handed down by Judge Coward, including the compelling of speech by Eldridge and — even more questionably — demands he police his post for any negative comments from third parties and remove them. But the court condones this imposition on Eldridge, which implicates not only his First Amendment rights but those of readers of his posts.
Such conditions are reasonably related to the necessity of preventing further disruptions of the court by defendant’s conduct, and the need to provide accountability without unduly infringing on his rights.
I doubt that. The other punishments might be reasonable and not “unduly infringing” but Coward’s court isn’t going to end up any more respected by Eldridge just because it forced him to write an essay about respecting the court. It may deter him from blowing off the “No Recordings Allowed” signs in the future but it won’t change anyone’s minds about Judge Coward’s apparent lack of respect for Constitutional rights.
This is pointed out by the dissenting opinion, which says this part of Eldridge’s sentence is just completely wrong.
The probation condition imposed by the trial court requiring Defendant to write and publish an essay about respect for the courtroom on his social media and internet accounts and to delete any negative comments made by third-parties on this essay bears no reasonable relationship to Defendant’s rehabilitation or to his crime and raises serious First Amendment concerns.
The dissent is okay with the compelled speech — the writing of the essay. This “bears a reasonable relationship” to the contemptuous recordings Eldridge engaged in, says the dissent. Policing comment threads? Not so much.
It holds Defendant responsible for what is essentially the behavior of others; and while there is some truth to the adage that we are only as good as the company we keep, the relevant community in this context is incredibly diffuse, extending through cyberspace. The lack of reasonable relationship between Defendant’s crime and his rehabilitation to the requirement that he monitor comments made on the essay and delete any critical comments violates the statutory requirement contained in N.C. Gen. Stat. § 15A-1343(b1)(10). My vote therefore is to vacate this condition of his probation.
Good call, although the compelled production of an essay on respecting the courts seems just as troubling as the requirement to monitor it for negative comments. Either way, it doesn’t matter. The dissent has weighed in but it’s the majority’s opinion that matters. The First Amendment is no match for an angry county judge.