A Michigan man was jailed last month on a $500,000 bond after writing critical posts on Facebook about the judge who denied him custody of his son. Jonathan Vanderhagen, 35, is now standing trial for malicious use of telecommunication services.
The saga began two years ago when Vanderhagen petitioned Macomb County Circuit Court Judge Rachel Rancilio for sole custody of his 2-year-old son, Killian. Vanderhagen argued that Killian's biological mother was unfit to be Killian's sole guardian. Judge Rancilio disagreed and the child's mother was able to retain custody.
Shortly after the custody dispute, Killian passed away in his mother's care from what authorities concluded was a preexisting medical condition.
Despite that conclusion, Vanderhagen believed that Killian would still be alive had he been granted custody. Since his son's death in 2017, Vanderhagen has used his Facebook page to criticize Rancilio's custody ruling. Those posts, none of which were deemed threatening by the police department that investigated them, landed Vanderhagen in jail.
According to a complaint and an emergency bond hearing provided to Reason by Vanderhagen's lawyer, Nicholas Somberg, Vanderhagen was charged with one misdemeanor count of malicious use of telecommunication services due to his criticism of Rancilio. The definition of "malicious use" includes using a telecommunication service with the intention of terrorizing, intimidating, threatening, or harassing Rancilio.
The case report filled out by Sgt. Jason Conklin of the Macomb County Sheriff's Office notes that Rancilio was made aware of Vanderhagen's posts, several of which included screenshots of her own Facebook page and pins on Pinterest. The screenshots are accompanied by captions promising to expose the corruption of the court system and calling Rancilio and Mary Duross, a 14-year veteran Friend of the Court who was involved in the custody case, "shady."
"At no point does [Vanderhagen] threaten harm or violence towards Rancilio or Duross," Conklin wrote in the case report.
Conklin took various screenshots of Vanderhagen's Facebook posts, including the following.
Dada back to digging & you best believe im gonna dig up all the skeletons in this court's closet ????
The Facebook post in question shows Vanderhagen holding a shovel with the photoshopped initials R.R. and M.D., believed to be Rancillio and Duross, respectively. The caption says, "Dada back to digging [and] you best believe [I'm] gonna dig up all the skeletons in this court's closet."
The post was published to Facebook on July 8. Somberg explains to Reason that the date of this particular post should have jeopardized the case brought against Vanderhagen.
Vanderhagen received a letter from Sgt. Morfino, dated July 10, informing him that there was a warrant for his arrest for malicious use of telecommunications. The letter says the actions occurred "on or about" July 7. Vanderhagen was arraigned before the Macomb County District Court on July 11.
Vanderhagen was released on a $10,000 bond under the condition that he would not engage in direct or third-party contact with Rancilio. Vanderhagen was also prohibited from sending "inadvertent messages by way of Facebook" to Rancilio.
Following the arraignment, Vanderhagen continued to use Facebook to post about his son, his son's mother, and his case, topics Somberg argues are not in violation of the bond conditions set on July 11. Regardless, Vanderhagen was summoned to appear before District Judge Sebastian Lucido at the end of July for an emergency bond hearing, allegedly for "posting messages" about Rancilio.
A list of exhibits presented to the court highlights Facebook posts calling his son a hero, criticisms of his son's mother, and criticisms of "the system," none of which directly referenced Rancilio.
The only reference to Rancilio is found in Exhibit 1, which features screenshots of Vanderhagen's July 8 Facebook post. Considering Vanderhagen did not receive his bond conditions until three days after that Facebook post was published online, however, its inclusion seems like an inappropriate attempt to paint Vanderhagen as more of a threat than he actually is.
In a transcript of the exchange between Somberg and Judge Lucido at the emergency bond hearing, Somberg argued that Vanderhagen has a First Amendment right to air his court-related grievances online:
MR. SOMBERG: Every one of these exhibits are innocuous, are irrelevant, are not threatening, are not harassing or not intimidating in any way whatsoever. And I would make the argument that he can F say the Judge, F the President of the United States. I mean you have the right to say that stuff.
Lucido's responded that there are "limits" to the First Amendment right to free speech:
THE COURT: There cannot be anything of a threatening nature. You can't yell. They used the example, the famous case, you can't yell fire in a public place or movie theater, something like that. We're talking about threatening a sitting Circuit Court Judge is the original allegation against Mr. Vanderhagen. When there's a no contact, it's no contact directly, indirectly or social media. These are [although] he likes to hint around the fringes of it, in my opinion they are of a threatening nature after the no contact was put in place.
Somberg then asked Lucido to explain why the other posts were considered threatening towards Rancilio. Lucido told Somberg that the Facebook posts "speak for themselves:"
THE COURT: You can sit there and read every one of them if you want but [they're] already part of the record.
MR. SOMBERG: I understand that, your Honor, but you just said that you found the exhibits to show that they are threatening in nature. I'm just asking what—
THE COURT: Correct—
MR. SOMBERG: —is threatening about them.
THE COURT: —because [they're] alluding to Judge Rancilio and I'm not going to sit here and explain it any further. But here's what I am going to read and what is also put in LEIN. Do not harass, intimidate, beat, molest, wound, stalk, threaten or engage in any other conduct that would place any of the following persons or a child of any of the following person's in reasonable fear of bodily injury, spouse, former spouse, individual with whom the defendant has a child in common, resident or former resident of the household. Do not assault, harass, intimidate, beat, wound or threaten the following persons, Rachel Rancilio. And in my opinion, he's violated that.
"People have a constitutional right to express opinions about government officials, including judges," says Loyola Law School Professor Aaron Caplan. "Defendants who appear before a judge have this right, just like anybody else. It might not be wise to criticize the judge hearing your case, but it is a right that defendants have if they want to exercise it."
Caplan notes that free speech "does not include the right to make what the law calls 'true threats' to inflict bodily harm on any other person, including judges."
Yet Conklin, the investigating sergeant in Vanderhagen's case, concluded that "[a]t no point does [Vanderhagen] threaten harm or violence towards Rancilio or Duross."
Not only does it appear that Vanderhagen's First Amendment rights have been violated, Judge Lucido also increased Vanderhagen's bond to $500,000, raising questions about the use of excessive bail amounts as a means of further punishing and suppressing Vanderhagen's speech.
In an emergency appeal, Somberg argued that legal precedent states that "bail is excessive if it is in an amount greater than reasonably necessary to adequately assure that the accused will appear when his…presence is required." The nature of the offense, Somberg continued, also raises questions about the $500,000 bond. Vanderhagen was charged with a misdemeanor that carries a maximum sentence of six months in jail and a maximum fine of $1,000.
Somberg can see no logical explanation for the court's decision to increase Vanderhagen's bond 50 times the initial amount. Vanderhagen has no criminal record. Nor is he a registered firearm owner. These factors, Somberg argues, would justify a lower bond, not a higher bond.
In a statement to Reason, Somberg likens the high bond to intimidation. "He has never threatened anybody, has no criminal history, and is no flight risk. A $500,000 cash bond is what you would expect for a murderer or rapist. I can't think of any other reason to set such an astronomically high bond other than to intimidate and punish him for his speech. We are fighting this case not just for my client but to defend the constitutional rights of all of us," Somberg says.