Drop the F-Bomb in Court, Go to Jail for 6 Months

Free speech and courtroom decorum are two values that our legal system deems pretty important. Obviously, free speech is one of the basic liberties that our legal system was set up to protect. On the other hand, in order for a legal system to be effective, the general public must respect it, and a big part of that is courtroom decorum – observing appropriate standards of etiquette and humility while before a court, either as an attorney or a party.

It’s well-settled that judges have the power to summarily convict and punish anyone who displays contempt of court in the judge’s presence. Some have argued that the law governing contempt is so vague that it can be used to punish virtually anything which isn’t explicitly against the law, but happens to anger the judge. However, that’s not entirely the case. While contempt of court is different from other criminal convictions in that it rarely requires a trial (the judge personally witnessed the entire act of contempt, allowing him to make the necessary determinations of fact), like any other conviction, it can be appealed.

And through this process, appeals courts have greatly clarified, and somewhat limited, exactly what constitutes contempt of court. Generally, disregarding a direct, lawful court order counts as contempt, as does causing a disruption in the courtroom.

Obviously, for the rules against contempt to have any teeth, the law must prescribe punishments for their violation. However, considering the relatively minor harm caused by a single act of contempt, and the summary nature of the punishments, we must be very careful to make sure that the punishment fits the crime.

In one interesting recent case, a criminal defendant was sentenced to six months in federal prison for uttering a single profanity in a courtroom. Upon being sentenced for second-degree murder (he got 26 years, which makes this fight over another six months seem pretty insignificant), the defendant said, quite loudly, “F*** y’all.” Classy.

The judge summarily sentenced the defendant to 12 months in jail. The defendant appealed. The only concession he got was a reduction of the 12 month sentence to 6 months, since that’s generally recognized as the maximum sentence that can be handed down without a trial by jury. Still, six months for a single profanity seems pretty steep.

This is especially true when you consider the importance our legal system places on freedom of speech. The Supreme Court has specifically held that profanity, in itself, cannot be criminally punished. In one famous case, a young man walked into a courtroom wearing a jacket with “F*** The Draft” emblazoned on the back – a protest against the Vietnam War and, obviously, the draft.

He was charged and convicted with disturbing the peace, and the Supreme Court overturned his conviction, holding that a state cannot constitutionally make the mere display of a single expletive a crime.

It seems pretty hard to reconcile this well-settled constitutional doctrine with the court’s actions, besides saying that there’s something fundamentally different between contempt of court and disturbing the peace, or that when it comes to maintaining courtroom decorum, ordinary considerations of free speech don’t apply. Maybe this is the case.

In any event, a little practical information on how to avoid sharing this poor chap’s fate might be in order. If you’re in court, whether it’s about a traffic ticket, a family matter, or even criminal charges, it’s absolutely essential that you show the judge a measure of respect. I’ve made the point before, but when you’re in court, it’s generally a good idea to let your lawyer do the talking.

That’s not a 100% guarantee that there will be no problems. Lawyers are under an ethical obligation to zealously represent the interests of their clients. Generally, there’s no conflict between zealous advocacy and affording the court due respect. Occasionally, however, lawyers will cross a line, and get themselves into trouble.

Thankfully, if it’s your lawyer, and not you who says “F*** y’all,” the lawyer, and not the client, will be punished.

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