The Volokh Conspiracy
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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.)