Criminal Defendant Must Write and Post Essay on Respect for Judiciary, and Delete Any Negative Comments Posted on that Essay

as a condition of having his criminal contempt sentence suspended. OK, says a North Carolina Court of Appeals opinion, though one judge dissents.

|The Volokh Conspiracy |

From In the Matter of Davin Eldridge (No. 19-370), decided yesterday by the N.C. Court of Appeals:

On 29 November 2018, defendant Davin Eldridge, a frequent publisher for a Facebook page called "Trappalachia," entered the Macon County Courthouse. The officer working the metal detector saw defendant had a small tape recorder and "advised [defendant that] he [could] not record inside the courtroom.["] Defendant acknowledged the officer's instruction and entered a courtroom. As he did so, defendant bypassed signs posted on the entranceways stating: "BY ORDER OF THE SENIOR RESIDENT SUPERIOR COURT JUDGE: DO NOT use or open cell phones, cameras, or any other recording devices inside the courtrooms. Violations of this order will be contempt of court, subjecting you to jail and/or a fine. Your phone may be subject to seizure and search."

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.

Judge Coward then held Eldridge in criminal contempt for violating the restrictions, and the court unanimously upheld the punishment. But, more controversially,

[T]he trial court sentenced defendant to be confined in the Macon County Detention Center for thirty days. Defendant's sentence was suspended for twelve months, upon six specific conditions for him to meet during his probationary sentence: 1) serve an active sentence of 96 hours; 2) pay the costs of the action; 3) pay a fine of $500.00; 4) draft 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; 5) not violate any order of Court or otherwise engage in further contemptuous behavior; and, 6) not attend "any court session in Judicial District 30A unless and until his essay has been approved and posted as required herein and he has fully complied with all other provisions of this order."

The majority, in an opinion by Judge Wanda Bryant, joined by Judge John M. Tyson, upheld this:

Given defendant's questionable and intentional conduct, his frequent visits to the courtroom, and his direct willingness to disobey courtroom policies, we discern no abuse of discretion in the trial court's decision to impose conditions on defendant's probationary sentence. 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.

Judge Christopher Brook dissented as to the delete-negative-comments portion of the sentence:

While I agree with the majority that the sentencing judge's decision to require Defendant, who violated multiple court orders by recording and livestreaming courtroom proceedings on social media, to write an essay about respect for the courtroom and publish this essay on his social media and internet accounts bears a reasonable relationship to Defendant's criminal contempt of court, and to his rehabilitation for this crime, I do not agree that requiring Defendant to monitor comments made on this essay by third-parties and delete any comments the court might consider critical bears a reasonable relationship to Defendant's crime or to his rehabilitation, as N.C. Gen. Stat. § 15A-1343 requires….

The [comment-monitoring] condition … 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….

Our Court has a "settled policy" of avoiding constitutional questions "when a case can be disposed of on appeal without reaching the constitutional issue[.]" Because I vote to vacate the condition of probation requiring Defendant to delete negative comments on the essay [on statutory grounds], I do not delve deeply into what I consider deeply troubling constitutional problems with this condition of probation. Although we generally do not review constitutional questions that have not first been raised in the trial court, suffice it to say that the sentencing judge has not only compelled Defendant to speak within the meaning of the First Amendment, he has compelled Defendant to then continue speaking by censoring the viewpoints of others expressed in response to speech compelled by the court. This compelled speech silencing third-party viewpoints expressed in response to compelled speech raises serious First Amendment concerns.

Note that, under First Amendment precedents, conditions on criminal sentences can indeed restrict or compel speech, though only so long as the conditions are "reasonably related to legitimate penological objectives," a pretty vague standard under which the government often wins, but sometimes loses. (Note also that Eldridge's site is a blog and not just a Facebook page.)

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  1. The essay that he has to write has a false premise to start with…courts don’t dispense justice (though they tell you that they do), what they do is resolve disputes, which may or may not be just. Like this one.

    1. It’s a lot more in this case that’s going to come to the surface Snowball the initial case at the report it was broadcasting had to do with the death of my daughter myself and my wife never authorized the broadcasting of the case we were under the impression that he was recording a lot of very important facts we’re not written here and I do feel like with that ruling he did deny our right to have media coverage on the case put on Tire case what’s the most corrupt thing I’ve ever seen take place in a courtroom in my entire life . Like I said a lot more is going to come out on this case

  2. “Respect for the Court System is Essential to the Fair Administration of Justice,”

    False premise. Respect of others has nothing to do with how the judge does or does not administer justice.

    The judge is saying that he won’t be fair unless he is respected.

    1. According to our attorney general respect apparently has a lot to do with policing.

    2. For all other laypeople reading, that is the subject of the essay. It is up to the defendant whether to write an essay that supports or refutes the subject. Yes, the judge has to approve it, because otherwise how does one know if the sentence has been fulfilled, but there will be a continuum of essays that could satisfy the sentence.

  3. I’d imagine it gets a lot harder to comply with the order to delete all negative comments when the order itself is so unusual it becomes newsworthy, exposing the essay to thousands of people who otherwise would never have even known it existed.

    1. The Streisand Effect.

  4. Would a third party whose comment is deleted have standing to challenge that portion of the order?

    1. They did for Trump’s twitter.

      The issue in that case was denying it was an outlet for speech for Trump-the-person, and that, since it had a built-in comment system, it amounted to an official channel and speech area.

      It is the exact same here, except the speech is government-mandated, and not government speech.

      Wait, what?

  5. How is it that I so often see video of court proceedings on TV, if recording court sessions is disrespectful of the system?

    1. The recording was not disrespectful per se. However, unilaterally flouting a published court rule was disrespectful. It would be disrespectful and actionable regardless of the wisdom of the rule or of the moral justness of the act of civil disobedience.

      I have mixed opinions about whether recordings of court sessions are good public policy. On the one hand, they improve transparency of government. On the other, they can impinge on the privacy of the innocent (which includes not only the accused but also witnesses, family members, etc). Despite my mixed feelings, I have no trouble with the idea of punishing those who take that decision into their own hands.

      1. I wouldn’t want a person of uncertain intentions to record me anywhere – in court or on the streets or in a City Council meeting or at a Mardi Gras parade.

        But since I can’t order the person doing the recording to be locked up, I guess I have to put up with it.

        Since this rule has First Amendment implications, can a rule avoid First Amendment challenge simply by posting it on a door?

        NO COMMUNISTS ALLOWED IN THIS COURTROOM

        NO PRESBYTERIANS

        ONLY DULY-CREDENTIALED REPRESENTATIVES OF MAJOR MEDIA MAY RECORD PROCEEDINGS IN THIS COURTROOM

        1. re: “can a rule avoid First Amendment challenge simply by posting it on a door?”

          Not at all. And I fault the court in this case for dodging that very question. That said, I can’t tell how clearly the defendant brought that challenge. The appeals court might not have been able to consider it as strongly as they should have because of the defendant’s choices in litigation strategy.

          To your comment below, the media’s ability to violate privacy through their intrusive and obnoxious shock-tactic “interviews” of victims and family members is despicable – but because it happens in public, it’s outside the court’s ability to restrict. The most they can do (and all they tried to do based on the rules above) was to keep the circus out of the courtroom.

          1. I can see roping off a media section of the courtroom, provided that citizen-journalists get in along with members of the media establishment. Then punish those who publish jurors’ photos or what have you.

      2. “impinge on the privacy of the innocent (which includes not only the accused but also witnesses, family members, etc)”

        The media seem to be able to get around this by having cameras on the courthouse steps as witnesses, victims, etc. emerge.

        “How does it feel to see the killer of your daughter?” etc,

    2. I have practiced in the North Carolina Superior Court (civil only) for the last 17 years and I also regularly practice in our Court of Appeals. The rule in question was adopted fairly uniformly over our 100 counties (less judicial districts) around five years ago. The rule is completely content neutral; they especially do not want the public/press recording or live tweeting the faces of jurors, especially in criminal trials. It is a fairly serious concern and the rule is pretty uniformly enforced…no cell phones (or other recording devices) in the courtroom. I too share the concern the dissent expresses about policing the comments, but the overall policy has (in my opinion) a legitimate basis.

  6. The defendant can’t simply delete negative comments from social media, for the same reason I can’t delete comments here – he doesn’t control the platform.

    1. I’m pretty sure that some of the platforms give that sort of editorial power inside one’s own account. (But your general point is generally quite correct, I think.)

  7. “Respect for the Court System is Essential to the Fair Administration of Justice…”

    Oh, shit! The Administration of Justice just got less fair as I was reading this, and it’s my fault!

  8. This sounds like a great opportunity for a Mark Antony moment.
    “I come here not to condemn the judiciary, but respect them – despite the following list of screw-ups these idiots have performed”.
    Either that, or a Marshawn Lynch moment: “I’m just here, respecting the judiciary, so I don’t get fined.”

    Either way, these idiotic petty tyrants do not deserve any respect, and should be told to F themselves every time Eldridge can (legally) do so.

    1. Either way, these idiotic petty tyrants do not deserve any respect, and should be told to F themselves every time Eldridge can (legally) do so.

      Think maybe this is the kind of ‘thing’ the judge had in mind?

  9. Judge and justices seem to have gotten the cart before the horse. Respect is earned, not commanded. The reporter may be as big an ass as the judge, but I’d take that back if he’d write his essay on the difference. After all, the judge did not command what the essay must conclude.

    1. “Respect is earned, not commanded.”

      As every judge knows, commanding it is easier.

      Plus, people outside the legal system and lacking an understanding of the law often make incorrect decisions about how much respect judges truly deserve. So sometimes it’s better to nudge them in the right direction.

  10. A parallel example. Every week we see Bart Simpson compelled by the state to write on the black board “I will not….”.

    Generally accepted pedagogy or compelled speech by the state?

  11. Reminds me of a decision I heard about a long time ago regarding a multiple DUI offender. He begged the court, after the decision to suspend his license, to be able to drive to work so he could provide for his family. IIRC the judge allowed a limited license with the restriction that a sign, in 6 inch letters, saying Convicted DUI, be placed in the back window of any car he was driving. He contested it as cruel and unusual punishment however the judge herself argued that it was his choice; he either lost his license by her court order or followed the restriction on his driving privileges.

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