Court Hears Argument on Whether Spamming Judge Merits Contempt of Court Sentence

April 13, 2010 by David S. Seltzer

As a West Palm Beach cyber crime criminal defense attorney, I sometimes work in areas of the law where there’s little or no precedent, because the law has not yet caught up with technology and the way people use it. That may be the case in an appeal currently pending before the Seventh U.S. Circuit Court of Appeals in Chicago. Kevin Trudeau, an infomercial salesman famous for pitching alternative medicine, is appealing a contempt-of-court ruling by a federal judge who was annoyed that Trudeau asked the public to send the judge email in support of Trudeau. The judge received hundreds of messages, BusinessWeek reported April 8, and responded by holding Trudeau in contempt of court, sentencing him to 30 days in jail and a $50,000 fine. Trudeau appealed that ruling to the Seventh Circuit, which held oral arguments in the case April 7.

The appeal grows out of a Federal Trade Commission lawsuit alleging that Trudeau advertised his weight-loss book deceptively. Trudeau continued running the advertisements after a court order to stop them, prompting a fine from the court. In response, he asked his fans to send the judge email testifying that the weight-loss plan worked. The flood of responses froze the judge’s BlackBerry and prompted enough concern that federal marshals reviewed the messages for threats. Trudeau is out on bail while the case is resolved.

At the oral arguments before the Seventh Circuit, the judge was represented by a court-appointed attorney, Gary Feinerman. He argued that the contempt order was justified because a computer is part of a judge’s tools, just like a gavel. In this case, the actions took place in the judge’s “virtual presence,” and the judge was under attack online. He noted that some of the messages seemed threatening. Trudeau’s attorney, Kimball Anderson, argued that federal law says parties can be held in contempt only for actions that take place in a courtroom, with the judge as a witness, that affect the administration of justice. Anderson also argued that Trudeau didn’t realize he was doing anything wrong, and his followers didn’t shut down a server with their messages.

That last argument implies a comparison of the contempt order to a conviction for hacking, because shutting down a server is the result of one type of online attack. However, as a Miami-Dade cyber crime criminal defense lawyer, I don’t believe hacking is a useful analogy. A contempt of court order is not exactly a crime, but a sanction judges can order for parties who disrupt the case in a meaningful way. I think it’s unclear whether Trudeau did disrupt the case, although he certainly disrupted the judge’s life. I do believe it’s clear that he attempted to influence the judge, which could be considered a disruption -- but again, not one that took place in open court.

In the end, as with so many other legal issues, this issue may turn on the wording of the applicable federal law. If that’s the case, Congress should consider whether the law’s wording still achieves the law’s intended goal. State legislatures might also consider whether to update their own contempt of court statutes or rules. I am not sure whether this is the first test of whether contempt of court applies to online actions, but as a Fort Lauderdale cyber crime criminal defense attorney, I suspect it won’t be the last. The Internet is an important part of people’s lives, and the justice system needs to catch up quickly if it wants to avoid injustices.