Another great decision from the Illinois Court of Appeals – In re Weddigen 4-15-44
Respondent, James Weddigen, was found in indirect civil 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. Respondent appeals the order of contempt, the purge order, and the order requiring respondent to pay petitioner’s attorney fees associated with the contempt proceedings.
And I find para 9 to be esp. repugnant to the First Amendment:
Nonetheless, the court finds that his statements on Facebook stating that he had recorded incourt family proceedings and encouraging others to record family court proceedings constitute contempt of court as the statements tend to encourage disruption in this court and other courts. [Respondent] has shown himself to be a sophisticated person with regard to family court proceedings.
Now, if Respondent really is sophisticated, then, unlike the trial court, he has read and understands the Wikipedia page on the “First Amendment”
Note this is THE 4th district appellate court, famous for letting Lyle Harrison linger in jail when HIS constitutional rights were denied by a tied in court with summary indirect civil contempt–withhout any procedural safeguards. These three justices knew the safeguards and enumerated them at para 27 of the decision:
(and this paragraph is dedicated to Lyle, Andrew and Roger Harrison for their stints at the Moultrie county lockup for lack of due process and US and Illinois Constitutional protections at the hands of the Judges Flannel and Broch):
A person charged with indirect criminal contempt is entitled to all of the
constitutional protections and procedural rights afforded to other criminal defendants. Betts, 200 Ill. App. 3d at 58. These include the rights to (1) be charged by a written complaint, petition or information; (2) know the nature of those charges; (3) personal service; (4) file an answer; (5) be heard; (6) present evidence; (7) confront and cross-examine witnesses; (8) be personally present at trial; (9) subpoena witnesses; (10) a public hearing; (11) the privilege against self incrimination; (12) counsel; (13) the presumption of innocence; and (14) be proved guilty beyond a reasonable doubt. People v. Budzynski, 333 Ill. App. 3d 433, 439 (2002); Betts, 200 Ill. App. 3d at 58; Goleash, 311 Ill. App. 3d at 956-57.
The brothers Harrison were afforded none of these protections and when I challenged Broch/Flannel for these unconsitutional and illegal jailings I was told increduously “we don’t do that down here” — refering to the US and Illinois constitutions and case and statutory law! I believe I cited the Budzynski case in my pleadings.
But Justice Steigmann comes to the rescue like the US calvary of the legal world with a stunning concurence and did not just overturn on the fact that indirect civil contempt procedures were clearly not followed one iota (just the like Harrisons’ jailing for refusal to withdraw counterclaims–claims that would bring out rampant corruption in Moultrie and Paitt if discovery were allowed, but it was not–it was quashed by these errant judges).
para 46–admonnishing the judge and the attorney involved in these illegal and unconstitutional actions:
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 modern, seminal decision from the United States Supreme Court on the first
amendment is Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), where the Court wrote the following: “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” More recently, in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253 (2002), the Court reiterated and expanded upon these themes, as follows:
“The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. *** First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct (citations omitted).
Note, the Brandenburg case is the one that Melissa Smart just could not figure out overturned a case where a Judge said certain words and phrases are illegal if they are like “yelling fire in a crowded theater”. The statement was and is dicta. That case and subsequent cases were an embarasment to SCOTUS and were overturned with Brandenberg–something Melissa (not so) Smart didn’t read on the Wiki page about First Amendment rights in the US.
One more intersting paragraph from the decision–why are judges so darned sensitive to criticism from the public and from attorneys?
Regarding what may be the sensitive feelings of judges to criticism, whether fair
or unfair, the Court also added the following:
“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the digni[t]y of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect.” Id. at 270- 71.” (para 54)
and the court adds a quote from Thomas Jefferson at para 55:
To emphasize this point, the Court provided an interesting excerpt from a letter
written by Thomas Jefferson: ” ‘I deplore *** the putrid state into which our newspapers have passed, and the malignity, the vulgarity, and mendacious spirit of those who write them. *** These ordures are rapidly depraving the public taste. It is however an evil for which there is no remedy, our liberty depends on the freedom of the press, and that cannot be limited without being lost.’ ” Id. at 270 n.16. Apparently, dissatisfaction with the press is not a modern phenomenon.
¶ 56 Bridges precedes Brandenburg by 28 years, and legal scholars agree that the
Brandenburg standard provides greater protection for controversial speech..
Obviously all the scholars agree that Brandenburg is the standard for speech under the First Amendment–except Melissa Smart.
In People v. Goss, 10 Ill. 2d 533 (1957), the supreme court reversed that finding, albeit based upon the trial court’s error in refusing to grant the defendant’s motion for change of venue. The supreme court discussed Bridges at length and wrote the following:
“Comment on pending cases, even if it is unfair and inaccurate, is not to be adjudged contemptuous unless it constitutes an ‘imminent peril’ to the administration of justice. [Citation.] The social interest in the integrity and competence of the judicial process requires that courts and judges should not be shielded from wholesome exposure to public view, and if this interest is to be well served, then some latitude must be allowed for inaccurate and intemperate comment.” Id. at 544.
To that end, the United States
– 26 –
Supreme Court has declared that freedom of speech and freedom of the press should not be impaired through the exercise of a court’s contempt power unless there is ‘ “no doubt that the utterances in question are a serious and imminent threat to the administration of justice.” ‘ People v. Hathaway, 27 Ill. 2d 615, 618, 190 N.E.2d 332, 334 (1963), quoting Craig v. Harney, 331 U.S. 367, 373 *** (1947). Thus, ‘the first amendment forbids the punishment by contempt for comment on pending cases in the absence of a showing that the utterances created a “clear and present danger” to the administration of justice.’ Hathaway, 27 Ill. 2d at 618, 190 N.E.2d at 334.”
The cases are obviously not going the way the ARDC wants them. The ARDC wants power to cover up. Today, Lyle Harrison went to the ARDC with no less than 2 tax levies for $21 million against Hardware State Bank and US Bank for their roles in stealing Harrison property and crop proceeds in the Harry and Pete Harrison estates and demanded to know why the IRS opened an investigation and found that money had be stolen, was entitled to be taxed at the criminal gains rate of 50% plus 2% interest per month up to 100% of the stolen funds, but the ARDC had refused to open an investigation. How is that? 3 attorneys were involved–Dwight O’Keefe III, Bob Elder and Frances Purvis (deceased) but the ARDC does nothing. Is this an 18 USC sec 4 cover up and misprison of felony? Is it an 18 USC sec 371 conspiracy violation? The IRS opened an investigation and then issued tax levies against 2 major banks–US Bank and Hardware State Bank. He told the ARDC (Jerome Larkin, the head Administrator and his good friend in these deeds, the ARDC counsel James Grogran refused to meet with Lyle Harrison) but sent in a paralegal. A paralegal? Are they kidding? For a $43 million theft of crop proceeds and farmland and a $21 million tax levy 3 Illinois attorneys created? You could never even make this stuff up. Why didn’t he send in the receptionist or the mail room guy. Unbelievable. It’s like hiding under the skirts of your mom after you killed someone’s cat, but I digress.
The upshot and amazing conclusion of this brilliant justice is:
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.
We in the judiciary are part of the government and just as subject to fair—and
unfair—criticism as those in the executive and legislative branches. We can no more be “delicate snowflakes” in the face of such criticism than can any other government official. The orders entered in this case finding respondent in contempt and directing him to purge his contempt were unnecessary, unwarranted, unwise, and violative of the first amendment.
The only question remaining is why are Jerome Larkin and James Larkin such snowflakes?