A concurring appellate justice opines that a trial judge's contempt order forcing a litigant to post a retraction on Facebook violates the First Amendment.

Can a court use its civil contempt power to force a litigant to post a Facebook message retracting his earlier call for parents in custody disputes to surreptitiously record court proceedings? Or does the "compelled speech" of the contempt order violate the litigant's First Amendment rights?

That fascinating issue arose in In re Marriage of Weddigen, a recent fourth district family law case. Weddigen is the subject of Springfield lawyer Ashley DiFilippo's article in the November issue of Trial Briefs, newsletter of the Civil Practice and Procedure section. As DiFilippo observes, "civil practitioners are finding that their client's presence and activity on social media is becoming more and more a part of courtroom debate."

A court-ordered retraction

In Weddigen, the husband posted on a fathers'-rights Facebook page that he had secretly recorded a hearing in his divorce case. He urged other litigants to do the same.

Of course, recording court proceedings without permission violates the Illinois Supreme Court rules (Rule 68(A)(8), to be exact). The wife in Weddigen filed a petition asking the trial judge to hold the husband in contempt.

"In responding to the petition to hold him in direct civil contempt, Respondent stated that he had not in fact recorded the hearing, but had instead 'made a false claim on Facebook,'" DiFilippo writes. "[T]he trial court stated it accepted the Respondent's statement that he did not actually record the hearing," but said "the contempt it was concerned about was Respondent's…going on a website and telling others to record proceedings in the courtroom."

DiFilippo writes that the trial judge ordered the husband "to make a public statement on Facebook…that he was wrong and that people cannot record family court proceedings. When [he] refused to do so, the court imposed a sanction of $100 per day until [he] completed his purge as ordered," she writes.

The appellate court chose not to address the First Amendment implications of the court's requirement that the husband post a message on Facebook, overturning the contempt finding for other reasons (the majority's ruling about the trial court's contempt power was also a subject of DiFilippo's article). But in a special concurrence, Justice Robert Steigmann opined that the trial court order violated the husband's First Amendment rights.

'Compelled speech'

DiFilippo quoted and paraphrased Steigmann's reasoning: "As [Steigmann] said, the 'worst that can be said of respondent's conduct is that he urged persons attending trial court proceedings to record them.' While this may have been unwise or unwarranted, [the husband's] comments urged a violation of trial court protocol, and most likely not criminal behavior."

And suppose the husband were urging criminal behavior? "[Steigmann found that] speech cannot be restricted, even in imminent danger situations, unless 'the evil apprehended is relatively serious,'" DiFilippo wrote. "The conduct urged here was nowhere close to inciting the level of lawlessness appropriate." Steigmann's concurrence called the purge order "'compelled speech,' reminiscent of" that demanded by totalitarian regimes.

Steigmann "reminds the trial courts, and practitioners…that government cannot compel or restrict speech without due process and without compelling justification," DiFilippo wrote. "The opinion…looks to Brandenbug v. Ohio, 395 U.S. 444, 447 (1969), where the Supreme Court held that 'the government may not prohibit speech because it increases the chance an unlawful act will be committed at some indefinite future time.'" DiFilippo noted Steigmann's observation that "Illinois cases, the opinion continues, have held that…freedom of speech should not be impaired through the exercise of the court's contempt power unless there is a 'serious and imminent threat to the administration of justice.'"

As DiFilippo points out, social media posting remains perilous for litigants even when they enjoy First Amendment protection. "While the First Amendment may protect speech (or in this matter, protect a party from compelled speech), [it] does not protect [parties] from having their statements [on social media] used against [them] in the court's determination of credibility, fitness, or other relevant considerations."