Recently, a litigant in a post-dissolution family law matter was found in contempt of court for a posting on Facebook. The litigant, James Weddigen, wrote that he had “recorded” his court hearing and encouraged those viewing his Facebook page to record their family law court hearings. Mr. Weddigen also explained how a non-attorney could bypass security in order to bring a recording device to court. Initially, the trial court, in finding him in contempt, was not imposing a sanction but indicated the contemnor could purge the contempt by telling people that it is wrong to record court proceedings. The contemnor refused and was fined $100 per day until he purged the contempt. He was also ordered to pay the attorney fees of his former wife that were related to the contempt. In re Marriage of Weddigen, No. 4-15-0044, 2015 WL 6504800, at *1 (Ill. App. Ct. 4th Dist. Oct. 28, 2015).
The appellate court reversed the finding of contempt related to the Facebook posting because the lower court failed to adhere to procedures required for a finding of indirect criminal contempt. Id. at *10. This case provides a vivid template for discussing the circumstances where a finding of contempt could be appropriate as well as the distinct and specific procedures applicable to criminal contempt.
In Weddigen, the trial court did not appreciate the difference between civil and criminal contempt and merged the two distinct varieties of contempt into a new, hybrid proceeding. Id. at *7. The difference between civil and criminal contempt is marked, and constitutional protections are mandatory in an indirect criminal contempt proceeding. Because Mr. Weddigen was not afforded his constitutional rights, the Fourth District Appellate Court unanimously vacated the finding of contempt. Id. at *8.
To put criminal contempt in perspective—and to sustain our notions of substantial justice and comply with the Constitution—an alleged felon is provided notice of the charges, a fair jury trial, an opportunity to confront witnesses, and protection against self-incrimination. Should these and similar constitutional protections be provided to alleged criminal contemnors where the conduct arises outside the court’s presence?
Contempt can be any conduct, verbal or non-verbal, that embarrasses or obstructs the court, derogates from the court’s authority or dignity, brings the administration of justice into disrepute, or constitutes disobedience of a court order. In Weddigen, the trial court ruled that the Facebook posting was made in order to “bring disorder and disruption to my and every courtroom in the state.” Id. at *2. For that reason, the court, however dismissive of the First Amendment to the U.S. Constitution, proceeded on its theory against Mr. Weddigen that the social media post might be contemptuous. Id at *10 (Steigmann, J., specially concurring).
The powers of a court to make a finding of contempt and punish litigants, spectators, and counsel stem from the common law. The Appellate Court reaffirmed this principle in Thomas v. Koe, 395 Ill. App. 3d 570 (4th Dist. 2009): “It is well established law that all courts have the inherent power to punish contempt; such power is essential to the maintenance of their authority and the administration of judicial powers.”