Back in January, I wrote about the strange world of “rights” we were entering, in which the First Amendment, the quintessential American right that ensures the protection of all the others, was losing its power as the sword of the people, instead being fashioned into the shield of the powerful:

Don’t believe all that hooey about the Roberts Court being principled because they are protective of First Amendment rights. They’re not, not unless a corporation is the one “speaking” and the “speech” is for profit, or unless the speech poses no threat to corporate interests, like dog-crushing videos or homophobic protests of soldiers’ funerals. Peacefully protest Wall Street and you’ll be pepper-sprayed in the face, with free speech rights that are ambiguous at best and rights against police violence almost impossible to enforce.

The Orwellian world in which socially-useful speech results in criminal convictions or indefinite detention while villainy and corporate manipulation is protected stretches down to our trial courts. While we’re supposedly on a free-speech kick, with the Supreme Court recently affirming the right to lie about winning the Congressional Medal of Honor for profit and advancement, an underage sexual assault victim faced a contempt petition for taking to Twitter and saying her assailants were offered a plea bargain that was “a slap on the wrist.”

Savannah Dietrich, a 17 year old high school student in Louisville, Kentucky, was sexually assaulted by two of her peers, who apparently saw her unconscious at a party and so assaulted her, took pictures, and forwarded them around to their friends. Luck struck the perpetrators thrice, however, first in committing their crimes before turning 18, second in the prosecutor not electing to try them as adults, and third in the prosecutor offering them a plea bargain that was, apparently, quite limited in its proposed punishment.

Under Kentucky law, all juvenile court proceedings are confidential (KRS 610.340) and closed to the public (KRS 610.070), with an exception for certain people connected to the case including the victim. Details are thin on this point, but, as the Courier-Journal cites Savannah, at the hearing in which the plea bargain was offered, the judge “admonished everyone involved not to speak to anyone about what had happened in the court or about the crime in general.”  Afterwards, Savannah — apparently with a full understanding of the potential consequences, noting that the court could “lock me up,” and after reviewing the confidentiality statutes herself — tweeted the perpetrators’ names, and said that she felt the plea bargain offered nothing more than a slap on the wrist.  

The perpetrators’ lawyers, in a fit of poor judgment they no doubt regretted soon thereafter, filed for contempt charges against her — apparently claiming that even naming the perpetrators who assaulted her violated the court order — thereby prompting the Streisand effect and widespread circulation of the perpetrators’ names and faces outside of any court control and any right to relief.  Here’s a post on Daily Kos with their names listed as tags, a living memorial to their crimes. In a few years, their records will be expunged, and on the first page of Google will still be stories about them assaulting and humiliating a girl while she slept.

Eugene Volokh concluded that Savannah most certainly has a First Amendment right to talk about the crime itself, but nonetheless would have run into the collateral bar rule for violating the court order, unless the order was “transparently invalid.” Scott Greenfield questioned what jurisdiction the court has to punish her, an observer, at all. Then the lawyers for the defendants withdrew the petition entirely, complaining endlessly about their own poor judgment:

“What could contempt do now?” Mejia said in an interview, adding that the boys’ names have already been circulated far beyond the original tweet. “Seems like a rather useless exercise doesn’t it?” … [T]he “whole purpose was to protect her privacy and confidentially and my client and his family and the conduct and actions of juveniles, people under the age of 18.”

Mejia was obviously angry with Dietrich’s actions, saying his client’s “privacy has been trampled. He’s accused of things he didn’t do. Anybody who looks at (the postings online) believes things about this kid that are false, but there is nothing I can do about that.”

If he considers public knowledge that they plead guilty to sexual assault akin to having their privacy “trampled,” I wonder what he’d call being sexually assaulted and then having pictures of the assault passed around.

But the issue raised by the contempt petition is still worth considering: can a victim who was present for a closed criminal hearing talk publicly about their feelings? Personally, I see no way a sexual assault victim can be precluded from discussing what happens to the case in which he or she is the complaining witness, even if the perpetrators are minors, because I believe the perpetrators’ rights and the purpose for the confidentiality (the Kentucky Supreme Court has previously affirmed that the purpose of that confidentiality is to aid rehabilitation) must give way to her free speech rights. There’s ample case law affirming state power to keep the media out of juvenile courts, though not much case law on the constitutionality of gag orders limiting people closely tied to the case — but the little bit out there generally finds the gag order to be unconstitutional. See, e.g., In Re: TT, 779 NW 2d 602, 614–621 (Neb. Ct. of App. 2009)(noting strict standards applicable to gag orders limiting parties even in juvenile cases, and finding one such order unconstitutional). If In Re: TT is correct, then there’s no way the court in Dietrich case went through enough steps to impose the gag order and ensure it was narrowly-tailored.

That said, I don’t think we need to get there yet: I think Savannah read the confidentiality statute correctly, and so tweeted only the names of the perpetrators, which she unquestionably had a right to do (Butterworth v. Smith, 494 U.S. 624, 631-632 (1990)), and her personal feeling about the plea bargain offered, which does not disclose what actually transpired in court. A gag order precludes parties and witnesses from discussing what transpired in court; it does not erase the event from history, nor preclude people from revealing their feelings about the proceedings.

But the appalling part to me is how, in this day in age, the Westboro Baptist Church can confidently harass the grieving family members of those who died in the Aurora shootings, cowards nationwide can confidently lie about their military decorations to obtain employment and be elected to office, you can buy a video of a dog getting stomped to death on the Internet, and the Koch brothers can funnel millions into deceptive political advertising confident that they are protected by the First Amendment, but the moment an under-age sexual assault victim attempting to comply with the law complains publicly about what the public officials are doing in her case — an issue of undeniable public importance — then suddenly there’s a problem, and it’s time for her to sweat under the gun wondering if she had free speech rights or not.

Had it not been for the Internet backlash, she’d be still wondering.