by Paul Alan Levy
One hates to defend huckster Kevin Trudeau, a notorious infomercial scam artist whose efforts have been subject to extensive consumer complaints as well as FTC proceedings, but sadly a federal judge in Chicago has given Trudeau the opportunity to mount a real First Amendment defense by holding him in criminal contempt for having urged his supporters to communicate their support to the judge.
In the course of proceedings before Judge Robert Gettleman in the North District of Illinois, Trudeau posted a statement on his blog imploring supporters to send Judge Gettleman (and the FTC) emails telling them how great Trudeau's products are. Trudeau has apparently removed the message from his blog, but it was quoted at the contempt hearing:
"'E-mail Judge Gettleman,' with my address, 'and Michael Mora at the Federal
Trade Commission,' with his e-mail address, 'and tell them how I have changed
your life for the better. Tell them that I have not misled you in any way, and that
the government is out of control for trying to silence the truth.'"
The result was, apparently, hundreds of emails to Judge Gettleman (and presumably the FTC as well), which Judge Gettleman understandably found annoying. Many of them were apparently strongly worded (Judge Gettleman characterized them as “harassing, threatening, potentially threatening, and interfering”). After the court’s technical staff created a filter to direct the resulting emails to a special mailbox where Judge Gettleman would not have to read them, Judge Gettleman summoned Trudeau’s lawyers to appear before him (apparently refusing to give them advance notice of the topic of the hearing) and then held Trudeau in direct contempt, on the theory that Trudeau had incited his supported to submit improper ex parte communications, and had deliberately interfered with the court’s operation by causing hundreds of email to be directed to the judge’s personal email box. The judge ordered Trudeau to post $50,000 bail to avoid immediate incarceration; at a sentencing hearing yesterday, the judge sentenced Trudeau to 30 days in jail and fined him $50,000
Like the rest of his business, Trudeau’s tactics here are completely over the top; we would certainly never encourage a a client to start an email campaign of this sort directed as influencing a judge. But both of Judge Gettleman’s theories seem wrong, and indeed unsupportable under the First Amendment.
Although Trudeau himself cannot engage in ex parte communication, that prohibition does not extend to members of the public, who are entitled under the First Amendment to express their views to judges as to other public officials. One may assume that the judge would place such communications on the docket so that the parties could respond if they desired to do so. Indeed, Judge Gettleman’s theory that encouraging communications to a court in an effort to encourage a particular ruling is criminal is very troubling. On that theory, it could be a criminal offense to encourage anti-abortion picketing outside the Supreme Court of the United States.
Moreover, Trudeau did not ask for ex parte communications; he urged his supporters to write to the FTC as well as the judge. But even if he had asked for letters only to the judge, it is quite possible that Trudeau never considered the issue on ex parte communication; hence criminalizing a call for emails is scarcely appropriate.
As for the supposed “interference” in the judicial function, courts have generally rejected the contention that the sending of unwanted email is civilly actionable as “trespass to chattels” absent compelling evidence of actual interference with the ability to use the computer servers receiving them. A mere few hundred emails is unlikely to meet that standard, and the ease with which the court’s technical staff were able to divert the emails from Judge Gettleman’s own email box seems to refute such a contention.
If Trudeau had deliberately instigated a campaign to stuff the judge’s email box and make it impossible for him to read anything else, that might be a different matter, but the text of Trudeau’s message encouraging the emails does not suggest that his intent or his motive was to disable the Judge’s ability to use his email box. On its face, it appears to be a genuine plea that the public engage in peaceful protest on his behalf. Did the judge infer that Trudeau’s motive was to interfere and not simply to encourage protest? The judge did not make such a finding, and it is doubtful that he could without a trial.
During the initial hearing, Judge Gettleman expressed "concern" that Trudeau had managed to obtain his official email address, and had published it in his request for public support. "It is not a matter of public record. No judge's email address is a matter of public record." Transcript page 14. It turns out that Trudeau obtained the address from the Northwestern University Law School's listing of adjunct faculty members, where Judge Gettleman's email address was listed for all to see (don't look for it there now, though).