Blogging Litigants and the Courts
Dr. Linda Sue Cheek is charged with over 150 counts of distributing pain medications such as oxycodone, methadone, and morphine without having a valid drug license from the DEA. She is scheduled to go on trial in Roanoke, Virginia this morning.
Since her indictment back in May of last year, Dr. Cheek has maintained a steady commentary about her case on her blog. Her comments have included things like: she has been unable to practice medicine due to government collusion; that she and other pain management physicians are being treated by the federal authorities like Colombian drug lords; and that her trial will be "the beginning of the end of government persecution for doctors treating pain."
These comments were deemed sufficiently vitriolic by the local U.S. Attorney, a gag order was sought last week on the basis that Dr. Cheek's posts could pollute the jury pool. U.S. District Judge Glen Conrad declined to enjoin Dr. Cheek's speech, stating that her First Amendment right to free speech is not suspended because she is on trial. We here at the Law Blogger could not agree more.
In the family court matter, Daniel Brewington of Indiana has been blogging about his custody case for some time. Like Dr. Cheek's blog, Brewington does not mince words but rather, takes the direct approach.
Brewington's 2007 divorce proceeding turned ugly early on, resulting in a court-ordered parenting evaluation performed under seal by a clinical psychologist. The psychologist concluded that, due to the communication breakdown between the parties, sole physical custody should be awarded to Mother.
Dan Brewington took great offense and began to send the psychologist correspondence demanding that he withdraw from the Brewington's divorce case, retract his custody evaluation and report, and that he turn over his entire file to the Father.
When none of his demands were met, Brewington next filed a complaint with the psychologist's state licensing body and started a blog which contained posts about his case, and his deep disappointment with the psychologist. Father also posted on other websites, frequently referring to the psychologist as a "very dangerous man who abuses his power."
Although some of Brewington's conduct was allegedly criminal, his case is noteworthy to the extent of examining his right to free speech in the context of family court litigation. After Father lost custody of his child in the Indiana family court, he was prosecuted and convicted in a separate proceeding on two counts of "intimidation", attempted obstruction of justice, and perjury.
In the criminal case against Brewington, he was alleged to have characterized the family court judge on his blog as corrupt, unethical, and engaged in illegal behavior. He also repeatedly referred to the judge as a child abuser.
Brewington was sentenced to 5-years in prison for his deeds. The 44-page opinion of the Indiana Court of Appeals affirming his conviction and sentence has drew the attention, and criticism, of First Amendment scholars.
The problem that Brewington's case illustrates is that one can be imprisoned in Indiana for what one says, or blogs, so long as the speech is perceived as a "threat". The First Amendment scholars have issued a call to action, led by UCLA Law Professor Eugene Volokh.
Both cases also point to the multi-faceted threats to free speech that surface again and again in our post-modern, Big Data culture. You would think that by now, here in America, speech is protected. As these cases demonstrate, guess again.
We here at the Law Blogger promise to be ever vigilant relative to such threats, reporting them as we see them arise. Now get out there and express your bad-ass self!