5.17​Contempt for Criticism of the Court and First Amendment Protections

Criticisms of courts have resulted in contempt proceedings against the speaker or writer. Pennekamp v Florida, 328 US 331, 347 (1946); In re Contempt of Dudzinski, 257 Mich App 96 (2003). While criticism of the court can be contemptuous; courts must consider the person’s First Amendment right to freedom of expression. See US Const Am I; Const 1963, art 1, § 5.³⁸ “Courts must have power to protect the interests of prisoners and litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases. Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” Pennekamp, 328 US at 347.

A.​Freedom of Speech

“The United States Supreme Court has explained that ‘the right of free speech is not absolute at all times and under all circumstances,’ and that certain well-defined and narrowly limited classes of speech are preventable and punishable.” Dudzinski, 257 Mich App at 100, quoting Chaplinsky v New Hampshire, 315 US.568, 571-572 (1942). “Every citizen lawfully present in a public place has the right to engage in expressive activity and such activity may generally not be restricted on the basis of its content, but may be restricted if the manner of expression is basically incompatible with the normal activity of the particular place at the particular time.” Dudzinski, 257 Mich App at 100. “Speech or expression that is restricted because of the content of the message it conveys is subject to the most exacting scrutiny.” Id. at 100-101. “In order to restrict speech on the basis of its content, the state must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. at 101.

Michigan courts have recognized that it is a proper exercise of the rights of free speech and press to criticize the courts. In re Gilliland, 284 Mich 604, 610-612 (1938). “Criticism of the courts within limits should not be discouraged and it is a proper exercise of the rights of free speech and press.” Id. at 610. “Such criticism should not subject the critic to contempt proceedings unless it tends to impede or disturb the administration of justice.” Id. at 610-611. “The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men [and women] of fortitude, able to thrive on a hardy climate.” Dudzinski, 257 Mich App at 101.

However, the state does have a compelling interest in protecting a criminal defendant’s right to a fair trial under the Sixth Amendment of the United States Constitution, and “[w]here fair trial rights are at a significant risk, the First Amendment rights of trial spectators must be curtailed.” Dudzinski, 257 Mich App at 101. Further, “[i]t is the right and duty of a conscientious court to protect its good name, when the offending statements may impede or disturb the proper functioning of the court, and the fact that judges are apt to overlook transgressions of this character does not excuse or justify contemptuous utterances.” In re Gilliland, 284 Mich at 611.

B.​Determining Whether Criticism Is Contumacious

The critic should not be subject to contempt proceedings unless the criticism “tends to impede or disturb the administration of justice.” Dudzinski, 257 Mich App at 101-102. See also Pennekamp, 328 US at 336 (discussing the balancing test for reviewing courts to apply when determining whether speech constitutes an imminent threat to the administration of justice). Factors to consider when determining whether speech impedes or disturbs the administration of justice include whether a jury has been exposed to the criticism, whether the speaker is actively disrupting the proceedings, and the size of the group of speakers. Dudzinski, 257 Mich App at 106.

Comments about the court that are inaccurate, false, or “‘even vicious’” should not be punished with the contempt power if the comments do not affect pending litigation. In re Turner, 21 Mich App 40 (1969), quoting Pennekamp, 328 US at 346. Note, however, that false comments about court proceedings may be contumacious. See MCL 600.1701(l).³⁹ There must be “an immediate peril of undue influence or coercion upon pending litigation” before the contempt power may be used to punish public criticism of the court. Turner, 21 Mich App at 56.

C.​Caselaw

The trial court did not err by finding the respondent in contempt of court for his repeated remarks characterizing ongoing court proceedings and the court as “crooked.” In re

The trial court did not err by holding the defendant in contempt for his speech where the defendant, who was an observer in the courtroom, “raised his fist in the air and began shouting[]” in front of the judge while the subjects of the court proceeding were being led out of the courtroom. In re Contempt of Warriner, 113 Mich App 549, 550-551, 555 (1982), remanded 417 M⁴⁰

The trial court erred in ordering the defendant to remove his shirt or leave the courtroom where the defendant was wearing a shirt that read “Kourts Kops Krooks” because the statement on the defendant’s shirt “was constitutionally protected political speech that did not constitute an imminent threat to the administration of justice[.]” Dudzinski, 257 Mich App at 100, 107 (noting that “[a] trial court may not impinge on the First Amendment rights of a courtroom observer on the basis of a mere offense to its sensibilities or those of one of the parties”). After reviewing similar cases from other jurisdictions, the Court concluded that the defendant’s behavior did not present a serious and imminent threat to the fair administration of justice because the defendant was “sitting in the courtroom quietly and was not disturbing the proceedings,” was not in a large group (there were only two other people wearing the same or similar shirts), and, “[m]ost importantly,” he was “a spectator at a pretrial hearing when the jury was not present.” Id. at 106-107. The Court noted that the statement on the defendant’s shirt related to the issues in the underlying case,⁴¹ and the trial court ordered the defendant “to leave the courtroom because of the specific content of the shirt rather than the fact that the shirt contained a political message.” Id. at 106. “Because the trial court restricted the content of [the defendant’s] expression, it needed a substantial or compelling governmental interest for doing so.” Id. (finding no substantial or compelling government interest in this case).

The trial court’s contempt ruling did not violate the defendant’s right to free speech under the First Amendment where his “actions and remarks tended to disturb the administration of justice.” People v Kammeraad, 307 Mich App 98, 149 (2014). In Kammeraad, the defendant appeared at his sentencing hearing “undressed from the hip area up[,]” interrupted defense counsel when counsel answered a question posed by the court, and used his time to make a statement to argue that he was “not the defendant” and to state that the court engaged in criminal actions. Id. at 148. The defendant’s behavior at the sentencing hearing was a continuation of similar behavior throughout his trial. Id. In upholding the trial court’s decision to find the defendant in contempt of court and determining no First Amendment violation occurred, the Court stated:

“Defendant’s conduct during sentencing was disorderly, contemptuous, and insolent, directly tending to impair the respect due the court and reflecting the culmination of disorderly, contemptuous, insolent, and disrespectful behavior, MCL 600.1701(a), all of which was directly witnessed by the court firsthand. The circuit court had been remarkably patient with defendant throughout the course of the judicial proceedings, and defendant’s continued defiant conduct compelled the court’s contempt response in order to restore some order to the courtroom and to ensure some level of respect for the proceedings.” Kammeraad, 307 Mich App at 148-149.