A federal appeals judge from Indianapolis penned a 7th Circuit Court of Appeals decision today that touches on free speech,
judicial safety, and contempt proceedings that stem from a case against a well-known radio personality and infomercial salesman
who promotes natural cures and alternative medicine.
Judge John D. Tinder today authored the 16-page decision in Federal Trade Commission v. Kevin Trudeau, No. 10-1383,
which involves a line of litigation out of the Northern District of Illinois, Eastern Division.
Kevin Trudeau is best known for controversial infomercials promoting his products and books that tout alternative cures to
chronic conditions such as cancer, diabetes, multiple sclerosis, and AIDS. He’s been involved in multiple civil and
criminal cases ranging from fraud to larceny, and been fined repeatedly by the Federal Trade Commission for his widely criticized
The appeal stems from an FTC action that targeted the marketing of his book, "The Weight Loss Cure 'They' Don't
Want You to Know About." Allegations were that Trudeau violated a 2004 court order by deceptively claiming in his infomercials
that the book being advertised establishes a weight-loss protocol that is “easy” to follow.
Judge Robert W. Gettleman found Trudeau clearly misrepresented the content of his book and misled thousands of consumers.
The judge fined him $36.6 million – the amount consumers had paid in response to the deceptive ads – and barred
Trudeau from appearing in any infomercials for three years. Last year, the 7th Circuit upheld the civil contempt finding but
remanded the case for re-evaluation of the multi-million dollar damage amount and three-year infomercial ban.
That new civil contempt is what sparks this new appeal. Trudeau was arrested in February on criminal contempt charges after
he told his radio show listeners and asked followers on his website to e-mail Judge Gettleman on his behalf. The judge didn’t
know his e-mail address was publicly available, but learned that his adjunct professorship at Northwestern University Law
School meant it was listed on the school’s website. He received more than 300 e-mails within a 36-hour span, and some
were polite while others presented more concerning language. Judge Gettleman alerted the marshal for a threat assessment.
Once the judge realized what had sparked the e-mails, he called the attorneys and Trudeau to court the following morning
and ordered him to surrender his passport and pay a $50,000 bond, in addition to warning him that he could face future prison
time for interfering directly with the court process. A week later, the judge summarily found the radio show host guilty of
criminal contempt and sentenced him to 30 days in jail, and that’s what the 7th Circuit took up on appeal this time.
Trudeau argued his conduct wasn’t contemptuous or punishable under the criminal contempt statute of 18 U.S.C. §401,
and that it was protected under the First Amendment. Procedurally, he argues against Judge Gettleman’s use of a summary
judgment procedure to convict him of contempt and also challenges the sentence’s reasonableness.
Addressing the e-mails as grounds for contempt, the 7th Circuit panel found the District judge had to perform his own fact-finding
research to determine where those e-mails came from and that means summary disposition was improper, an abuse of discretion.
“Even if the external facts determined by the court are uncontested, we are loath to endorse a system where the only
way a defendant can avoid summary process is by denying these facts,” Judge Tinder wrote. “This would create a
real Fifth Amendment concern by essentially forcing the defendant to admit or deny incriminating behavior before determining
the process to which he is entitled.”
The urgency of the situation, as far as the judge’s safety concerns, is not sufficient to justify the use of summary
contempt power, Judge Tinder wrote. A nexus between the urgency of the situation and need for immediate punishment must exist,
and here the case record doesn’t include any suggestion that Trudeau’s summary punishment was necessary to restore
the court’s ability to resume its duties, the court found.
“This is not to say that there should be no consequence for Trudeau’s actions, only that absent a compelling
reason for summary disposition, Trudeau is entitled to the normal array of procedures under Rule 42(a),” the court wrote.
The panel vacated Trudeau’s sentence and the District Court’s finding, remanding it for further proceedings as
allowed by federal criminal procedure rules. If the judge chooses to continue with the criminal contempt proceedings and refers
the case to a prosecutor, then Circuit Rule 36 will apply to that criminal contempt charge only. The underlying civil contempt
litigation remains pending and isn’t affected by this opinion.