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Feb 23, 2010

Infomercial King Gets 30-Day Sentence for EMail Barrage

There is an update to this post.

(cross posted at the Citizen Media Law Project
According to infomercial pitchman Kevin Trudeau, there are numerous "truths"—natural cures to diseases and medical conditions, weight-loss plans, debt-relief strategies, and government grant programs—that "they" (the government, big business, and the mainstream media) don't want you to know about.

On February 11, a federal judge told Trudeau that he didn't want to know about how the author and pitch master had purportedly affected people's lives.  The judge held Trudeau in contempt after the judge's email account was flooded with hundreds of emails supporting Trudeau in response to a missive on Trudeau's web site.


On Feb. 17, the judge sentenced Trudeau to 30 days in jail, but suspended the sentence for 24 hours to allow Trudeau to appeal.  The following day, the 7th Circuit Court of Appeals extended the stay and granted Trudeau's emergency appeal.  The appeals court originally scheduled argument in the case for Feb. 23, but then extended the deadlines for submissions to March 8, after which it will determine if argument is necessary. FTC v. Trudeau, No. 10-1383 (7th Cir. order Feb. 19, 2010).

The FTC v.  Trudeau Saga

The judge, U.S. District Judge Robert Gettleman, is hearing a civil case brought by the Federal Trade Commission over Trudeau's weight loss book.  This is just the latest round in a long battle between the FTC and Trudeau.

In 2007, Gettleman ruled that Trudeau had used deceptive advertising to sell his book "The Weight Loss Cure 'They' Don't Want You to Know About," in violation of a 2004 consent decree with the FTC. Gettleman eventually imposed a $37.6 million fine and banned Trudeau from any infomercials for three years.

The Seventh Circuit Court of Appeals vacated and remanded, holding that the lower court did not adequately justify the fine, did not adequately explain how the fine would be distributed to customers, and that the three-year infomercial ban was improper because it did not allow Trudeau to return to TV after taking remedial action to comply with the 2004 consent order. FTC v. Trudeau, No. 08-4249, slip op. (7th Cir. Aug. 27, 2009).

At the current stage of the case, Judge Gettleman is reconsidering the penalties, in line with the appellate court's instructions.

"Kevin needs your voice"

On February 10, Trudeau posted to his website a message (since removed) with the headline "Kevin needs your voice," giving the judge's email address and asking supporters to tell Gettleman how Trudeau had improved their lives.  He repeated the request on his online radio program.

The judge's email account was flooded with what he characterized as "harassing, threatening and interfering" emails, which apparently overwhelmed his Blackberry. 

The next day, Judge Gettleman demanded that Trudeau appear in court.  The hearing was tellingly punctuated a bell sound on the judge's computer, each indicating a new email received. “I believe that this is a direct contempt of the Court,” Gettleman said at the hearing. Transcript, at 5. “It is an attempt to interfere with the processes of the Court and has, in fact, interfered with the processes of the Court.  It's going to require . . . a threat assessment."

Gettleman sits in the Northern District of Illinois, which is especially sensitive to threats after a disappointed litigant murdered a judge's husband and mother.

The same day as the hearing, Trudeau posted a new message stating that his previous request that supporters email Judge Gettleman was "a mistake."  "Please do not under any circumstances communicate with the court or Judge Gettleman," he said.

Contempt or Free Speech?

At the first hearing, Gettleman held Trudeau in contempt—which the judge characterized as "direct criminal contempt" under Fed. R. Civ. Pro. 42(b), Transcript, at 10, 17 —and ordered that he surrender his passport and pay $50,000 bond.

The rule cited by Judge Gettleman, Fed. R. Civ. Pro. 42(b), allows a judge to "summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies."  See also Cooke v. U.S., 267 U. S. 517, 534-35 (1925) (holding that summary punishment for contempt witnessed by judge does not violate due process).

And federal judges have broad discretion in imposing penalties, including fines and/or immediate imprisonment, for such contempt. See 18 U.S.C. § 401.

But were the emails from Trudeau's supporters actually "improper ex parte communication," as characterized by the judge? See Transcript, at 17.  And did they "obstruct[] the administration of justice," a required element of criminal contempt? See United States v. McGainey, 37 F.3d 682, 683 (D.C. Cir. 1994).

Or, as Trudeau claimed in his radio program on Feb. 16 (video), is the contempt ruling a violation of the First Amendment?
Last week on my radio broadcast I thought that I had the legal right to exercise my First Amendment constitutional rights of free speech. . . .  And on my broadcast last week I did something that I truly believe I have the legal right to do. I asked you, the listeners, to petition, or write, if you will, to the judge in the case I'm involved with the Federal Trade Commission. . . .  I thought that I had the legal right to tell you United States citizens and citizens around the world to exercise your constitutionally protected rights of free speech and your constitutionally protected right to petition government officials.
It is common practice for friends and supporters of a criminal defendant—and in some cases, the defendant's victims—to send judges letters prior to sentencing.  Such letters have played a role in the sentencing of Bernard Madoff (in which all the letters were from victims), Martha Stewart, and I. Lewis "Scooter" Libby.  Most of the "letters" in the Madoff case were actually sent as emails.

But the penalties being considered for Trudeau are civil, not criminal, penalties.  And the usual practice in criminal cases is for pre-sentencing letters to be submitted to the court through the attorneys.

Don't Piss Off the Judge

In his contempt finding, Gettleman expressed concern over how Trudeau obtained his email address, which he said is not public: even though the email address—which I won't reveal here—is online in a few places (including a 2005 ad to sell a Porsche), and can be found through a simple Google search. The court's website contains the phone numbers of Judge Gettleman's chambers, and an indirect method of contacting his staff in which the email address is not revealed. 

The bottom line is, Gettleman got upset, and it's not a good idea to piss off the judge. But would Gettleman have reacted the same way if Trudeau had urged his supporters to write via snail mail, or if the emails were sent to Trudeau's lawyers for eventual presentation to the judge? 

In this case, it seems to have been the medium that led to the contempt finding, not the message(s).

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