Tag Archives: 1st amendment

Florida Man Incarcerated for Streaming Video of a Trial

jonathan-clyde-davis

Jonathan Clyde Davis

A man in North Florida was found in contempt of court last week and sentenced to 6 months in jail for posting a live stream of a trial on Facebook Live. Jonathan Davis was sentenced to 6 months in jail in Gainesville, which is the maximum possible sentence for contempt of court. Prosecutors indicated that witnesses were already reluctant to testify in the murder case that was going on, and that the streaming may have been a tactic to discourage participation.

However, there are several problems with this charge, primarily the First Amendment. People have a protected right to publish, and there’s nothing that would indicate that the courtroom had been closed. Generally open court is open court, and is not only open to the public, it is open to being recorded and being disseminated. (For that matter, all court proceedings are recorded). Apparently there is an administrative order that people must get permission to record or broadcast, but it is unclear if Mr. Davis knew about that order. There’s even an issue whether that order is Unconstitutional, though there is clearly an interest in the court in making sure cameras do not disrupt the proceedings.

At first blush this case is going to have difficulty holding muster on appeal. Apparently, he lied to the judge about what he was doing, and if the judge couched his conviction on that, he might be upheld. The Gainesville Sun spoke to UF Law professor Kenneth Nunn, who astutely points out that a Direct Contempt proceeding may not have even been appropriate since the Bailiff’s alerted the judge Mr. Davis’ activity. The fact that Mr. Davis was streaming is not itself inherently disruptive. One can appreciate why the court and the prosecutor are concerned, but the proceedings in open court are always public and subject to publication.

The State was still able to obtain a conviction on the second-degree murder charges.

It is not a Crime to Tell Off the Government

Michael Barbosa, of Connecticut, was traveling through Liberty , New York, when he got a ticket for speeding. He was upset about it, but decided to pay the ticket. He wrote out a check, and mailed it back to Liberty, and he wrote a message on the ticket: “FUCK YOUR SHITTY TOWN BITCHES”.

The officials of Liberty, New York, did not appreciate his sentiment, and refused to accept his payment. They set a court date, sent him a summons, and he had to return to Liberty to appear. Much to his suprise, when he did appear, he was arrested for aggravated harassment.

Sadly for the town of Liberty, we have a First Amendment, and criticism of the government is absolutely protected by that Constitutional provision. Criticism of the government, some might say, is kind of the point of the right to freedom of speech. What do I know? Oh, I know the law, and the judge agreed, dismissing the case. Because- Constitutionally protected expression.

Also Sadly for the town of Liberty… not only did they spend time, money and other resources on their misguided prosecution of the case, but they also got sued by Mr. Barbosa and the ACLU. And they lost, because they arrested and tried to prosecute a citizen for exercising his Constitutional right to criticize the government. And even more tax dollars were blown by town of Liberty.

While Mr. Barbosa certainly chose an inartful method of expressing his disapproval of the government’s actions, he was completely within his rights to do so. It’s a shame… and ultimately a waste of taxpayer money for this misguided and vindictive prosecution.

Link

MKA Blog Post Regarding Reporters in Courtroom being Subpoenaed

http://mkallenlaw.com/problems-presented-subpoenas-reporters-judge-tracy-hunter-trial/

Neptune Beach Considers Anti-Swearing Law

It’s still in planning stages, but worth noting: http://www.actionnewsjax.com/content/topstories/story/Neptune-Beach-wants-to-ban-cursing/zasVd7aK5k6h8icrkxyM-w.cspx

Teenager Arrested for Making a “Joke” Threat on Twitter to American Airlines

  • Things Not To Do: Don’t Joke about Airline Threats

A Dutch teen published a tweet to American Airlines that seemed to imply she was threatening to do something. AA quickly responded that authorities were being notified. The girl quickly responded that it was a joke, and then blamed her friend. Authorities responded quickly, and placed her under arrest.

First, there is a proof issue of who sent the tweet. The fact that it came from her account, or even her IP address, is not proof that she sent it. However, her first response was not to blame someone else, it was to say it was a joke, and only after she was “scared”. Oops.

Does this case have a First Amendment defense? The short answer is no, she is not in the United States, and therefore doesn’t have 1st Amendment protection. I have no idea what kind of speech protections the Netherlands may have. She probably would not be protected here, as courts generally do not extend 1st Amendment protection to true threats. That’s why Florida can charge a felony for threats posted to social media. The question is whether the initial tweet is a really a threat. It’s pretty vague, so she might be able to avoid conviction, depending on how the Dutch handle such cases.

Don’t joke about threats or terrorism. That kind of action with consideration of consequences is why we treat juveniles differently than adults, but it’s bad news. #thingsnottodo

Woman Who Flipped the Bird to a Judge Earning Redemption

Penelope Soto at First Appearance

Penelope Soto at First Appearance

Penelope Soto went viral a few weeks ago, when she flipped off a judge at first appearance and got held in contempt. I discussed why the judge was allowed to do that, but how several things went awry that denied Ms. Soto her due process. Her contempt sentence was subsequently set aside, and she appeared before a different judge for status yesterday, and was congratulated for the progress she was making. None of the stories I’ve seen have identified her attorney or attorneys, but they should be commended for their representation. They got the judge to set aside the contempt, and have gotten her into drug counseling which seems to be helping her out.

Don’t Flip Off Your Judge : Things Not to Do

Penelope Soto at First Appearance

Penelope Soto at First Appearance

Don’t cuss out a judge, either, as a Miami woman found out yesterday at her First Appearance / bond hearing. After 18 year-old Penelope Soto’s cavalier demeanor caused the judge to refuse to allow her out on supervised release, she responded to the $5,000 bond with an “adios” that the judge apparently found sarcastic. He called her back up and doubled her bond. Oops. Except then she makes the greater mistake of flipping him the bird and shouting the “F” word at him. Double oops. Judge Jorge Rodriguez-Chomat found her in direct criminal contempt, and sentenced her to 30 days in jail on the spot.

I missed this when it went around yesterday, but I want to add my 2 (or 3) cents on it. First, the judge was correct to hold her in contempt. It happened directly in front of him, so it was properly handled as a summary proceeding for direct contempt. He could have given her up to 6 months in jail upon a finding of guilt.

HOWEVER, he should have given her an opportunity to “show cause” why she should not have been held in contempt. Before a judge can hold someone in contempt, he has a duty under the Criminal Procedure Rules to inform them of the accusation, and to allow them a chance to show cause why she shouldn’t be held in contempt. I don’t think anyone would argue that his bare question, “Did you say F***,” is sufficient to meet this statutory requirement. Additionally, she should have been given the opportunity to present excusing or mitigating circumstances. By failing to follow the procedure, the judge violated her rights. Two wrongs do not make a right.

Secondly, Ms. Soto certainly appeared under the influence of whatever substance she had imbibed before getting arrested: probably the Xanax for which she is facing criminal charges. Also, such intoxication would be an excusing or mitigating factor that she should have had the opportunity to present.

Thirdly, someone on Facebook posed a question whether the judge properly increased her bond. Short answer: no. There are specific statutory considerations that a judge is to consider when setting bond. Those factors were considered when he set the bond at $5,000. The fact that she said adios when he finished dealing with her case, even though she said it sarcastically, did not give him legal grounds to increase that bond. He certainly did not make any findings on the record to justify such an increase. Rubbing him the wrong way does not lawfully allow him to raise her bond after it has been set. That said, her response to his illegal bond increase was not lawful either. Her wrong did no right his wrong.

Finally, it occurred to me that the are First Amendment ramifications. Can someone be held in contempt for speech, especially when that speech is directed at a government official? I was curious enough to do some research, and Florida Courts have found that profane language in court can be punished as criminal contempt if the statements insult the judge or degrade the dignity of the court. See Martinez v. State, 339 So.2d 1133 (Fla. 2nd DCA 1976). Apparently they would consider such statements an exception to the First Amendment, akin to fighting words. Merely shouting an expletive is probably not enough, without some intent to obstruct the administration of justice, which is highly unlikely since she was not even in the courtroom, walking away from a video camera. Judge Altenbernd of the Second District Court of Appeal wrote an extremely thoughtful and detailed opinion on a case with very similar facts to this one, Woods v. State, 987 So.2d 669 (Fla. 2nd DCA 2007). It’s worth a read if this blog entry intrigued you, as are most of Judge Altenbernd’s written opinions.

Ed: This entry ended up being quite the novel. When I started writing it, I initially wrote that the judge was correct. However, as my curiosity grew, I am convinced that this case would not hold up to appellate scrutiny (either the contempt or the bond increase) due the violation of Ms. Soto’s procedural rights, and I’m not sure that it would hold up even if the proper procedures were followed in light of a close analysis of the facts. This likely won’t help Ms. Soto, who will have exceptional trouble selling her jewelry (like Rick Ross, as she described it), in time to get a lawyer and take action on the case before her sentence is already served.

http://www.nbc-2.com/story/20973545/bad-idea-flipping-off-your-judge