Defendant Had No First Amendment Right to Turn Back on Judge and Make Disrespectful Comments, But Did Have A Right to Respond

A defendant in court did not have a First Amendment right to call a prosecutor overweight, tell the judge he did not respect him and turn his back to the judge, a Washington state appeals court has ruled. Instead, the appeals court determined that the judge could find the defendant in contempt of court.

Jonathan Dennington was in court on vehicle theft charges. Dennington’s counsel sought a motion to continue the case to conduct witness interviews. Dennington objected to the pushing back of his trial date. During discussion of this matter, Dennington said “she [the prosecutor] needs to lose weight somehow.”

The judge responded, “Let’s go. Sir, you need to watch your conduct in my courtroom. Come back here, Mr. Dennington.”

Dennington then insulted the court with the following statements:

“I don’t respect you. I don’t respect the court.”

“I don’t respect the liars that you entertain in your court.”

Dennington also turned his back on the judge, causing the judge to find him in contempt of court. Washington’s contempt of court statute provides for a fine of $500 and 30 days confinement in jail. Dennington later pleaded guilty to two counts of taking a motor vehicle without permission. He received his sentence, which included the time for the contempt finding.

Dennington appealed, arguing that the trial judge violated his First Amendment free-speech rights by holding him in contempt for expressing his opinion of the court and court proceedings. The Washington Court of Appeals rejected his First Amendment argument in its March 30, 2020 decision in State of Washington v. Dennington.

“It has long been recognized by the United States Supreme Court that an individual’s freedom of speech may be impaired through the exercise of the judicial contempt power when ‘the utterances in question are a serious and imminent threat to the administration of justice,’” the Washington appeals court wrote in quoting the high court in Craig v. Harney (1947).

The appeals court noted that Dennington turned his back on the judge and “explicitly denounced the court as untrustworthy in a busy courtroom, delaying the court’s consideration of other matters.” The appeals court determined that this was contempt.

While the appeals court determined that Dennington’s conduct constituted contempt, the appeals court noted that the trial judge did not give Dennington his right under state law “to speak in mitigation of the contempt.”

According to the appeals court, the judge should have provided Dennington with notice of the penalty he was facing for a summary contempt finding and, second, should have asked Dennington if he had anything to say in mitigation.

Thus, the appeals court affirmed the lower court’s finding of contempt but reversed the sanction and sent the case back down so the judge could give Dennington the opportunity to speak in mitigation.

David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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