From Ms. Dietrich’s perspective, her facts were simple. She was sexually assaulted by two boys, who then shared pictures of the assault. The incident caused the 17-year old embarrassment and concern—she cried herself to sleep for months and could not go out in public. She reported the incident to the police, looking for justice against her assailants. The defendants, who are minors, were charged and the prosecution entered into a plea bargain with them. At a recent juvenile-court hearing, Judge Dee McDonald reportedly gave a blanket instruction to those involved not to discuss the court proceedings or the underlying crime in general. The two have not yet been sentenced. Ms. Dietrich, already upset because she felt that the plea was too lenient on the defendants, was suddenly not permitted to speak about what had happened to her. She felt there was only one thing she could do.
Defiantly, she took to the twitter-sphere and outed the defendants by name. That Twitter account is now closed; however, it is reported that she tweeted: “I’m not protecting anyone that made my life a living Hell;” “Protect rapist is more important than getting justice for the victim in Louisville;” and “There you go, lock me up.” It has also been reported that Ms. Dietrich stated on Facebook that she wished she hadn’t reported the incident in the first place.
Ms. Dietrich also spoke to the local paper, The Courier-Journal, giving them her story above and telling them she would go to jail for her rights. The Courier-Journal did not publish the names of the defendants.
By tweeting the names, she made herself subject to a contempt of court ruling, with penalties up to $500 and 180 days in jail. After the defendants filed a motion for contempt, The Courier-Journal and Ms. Dietrich filed motions arguing that Ms. Dietrich has a First Amendment right to speak about her case and to a public hearing on the contempt charge. A petition to dismiss the contempt charge on change.org has received around 100,000 signatures. Yesterday the defendants’ attorneys withdrew that motion. They cited the futility of the attempt to protect the defendants’ privacy rights in light of the proverbial cat-being-out-of-the-bag rather than public pressure.
Where the government punishes the dissemination of accurate information that is obtained legally when the government cites privacy as the government interest in the restraint, the Supreme Court has generally ruled in favor of the media. For example, in 1979 the Supreme Court struck down a West Virginia statute that made it a crime to publish the name of a juvenile offender without the approval of the juvenile court.* However, these cases are fact-specific. Perhaps most interesting of all potential distinctions in this scenario is the social media aspect, which gives it the peculiarity and discomfort of having the potential defendant as the victim herself.
The withdrawal leaves unanswered the question whether the court here would find that the balances weigh in favor of Ms. Dietrich’s First Amendment rights and principles of open justice over the court’s interest in protecting the privacy rights of these juvenile criminal defendants. It also leaves open questions about Ms. Dietrich’s chosen course of violating the gag order rather than appeals through legal channels to challenge it as over-broad. In the end, the result may have come out the same.
*The 1979 case is Smith v Daily Mail Publishing Co., 443 U.S. 97 (1979).