Colorado Case Law
PEOPLE v. ALEEM, 06SA90 (Colo. 1-8-2007) In Re: THE PEOPLE
OF THE STATE OF COLORADO, Plaintiff v. SHAREEF ALEEM,
Defendant. Case No. 06SA90. Supreme Court of Colorado.
January 8, 2007.
In Re People v. Aleem — Limited First Amendment
rights within a courtroom and procedural requirements for
contempt citations pursuant to C.R.C.P. 107.
The supreme court holds that a court may restrict speech
within a courtroom, a non-public forum for First Amendment
purposes, provided that the restriction is both reasonable
and viewpoint neutral. In this case, the Court holds that
the trial court’s order to petitioner, Shareef Aleem, to
remove a T-shirt containing a political symbol during his
criminal trial did not violate Aleem’s First Amendment
rights because the court’s order was reasonably based on
its duty to preserve the courtroom for the presentation of
evidence, and not to restrict the particular viewpoint
espoused by the petitioner.
The supreme court also holds that pursuant to C.R.C.P.
107(a)(2), a court may only hold a person in direct
contempt when the court has either given prior warning that
a person’s behavior, if repeated, will constitute contempt
and the contemnor persists in such behavior, or the
person’s conduct is “so extreme that no warning is
necessary.” Because in this case the court did not warn
Aleem that his conduct would be contemptuous if repeated
and Aleem’s conduct was not “so extreme that no warning was
necessary,” the Court holds that the trial court abused its
discretion when it held Aleem in direct contempt.
Consequently, the Court makes the rule to show cause
absolute and reverses the trial court’s contempt finding
and sentence.
Original Proceeding Pursuant to C.A.R. 21 Adams County
District Court, Case No. 05CR384 Honorable Katherine
Delgado, Judge.
RULE MADE ABSOLUTE EN BANC
John W. Suthers, Attorney General, Melody Mirbaba,
Assistant Attorney General, Denver, Colorado, Attorneys for
the Trial Court.
K. Mark Burton, Denver, Colorado, Attorney for Defendant.
Justice COATS, concurring in the judgment only.
Justice EID does not participate.
Justice BENDER delivered the Opinion of the Court.
I. Summary
In this original proceeding, we review the trial court’s
holding of Petitioner Shareef Aleem in criminal contempt
and its sentence to forty-five days in county jail.
Initially, the trial court held Aleem in contempt until he
removed his Stanley Tookie Williams T-shirt. Thereafter,
the court retracted its initial contempt by allowing Aleem
to wear this T-shirt for the remainder of that day of trial.
The court never warned that any of his other behavior at
trial placed him in danger of being held in direct
contempt. At the conclusion of the trial, the court ordered
Aleem to show cause why he should not be held in contempt
for failing to follow its order to remove his T-shirt. It
set the show cause hearing for several weeks later.
At this hearing, the court held Aleem in contempt, citing
his misbehavior as: (1) refusing to obey its order to
remove his T-shirt; (2) arriving thirty-seven minutes late
to court; (3) yelling and calling the court names such as
“demonocracy”; and (4) orchestrating his supporters to
stand and chant. The court allowed Aleem and his attorney
to speak but stated that it had already decided the issue of
contempt and that the only decision left was to determine
Aleem’s sentence. After pronouncing a sentence, the court
denied a stay of execution. Aleem petitioned this Court
under Rule 21 and we issued a rule to show cause and a stay
of the sentence. We now make the rule absolute.
Aleem argues that the trial court’s contempt finding and
sentence should be vacated. He argues that: (1) wearing the
Tookie Williams T-shirt is protected by the First Amendment
and thus, a defense to contempt; and (2) the trial court
abused its discretion when it held him in contempt for
refusing to remove his T-shirt and for his other behavior
at trial.
Although the T-shirt containing political expression is
protected speech, we hold that this type of speech is not
protected inside a courtroom. As the trial court stated,
the courtroom is a place for the presentation of evidence
and not for political expression. It is a non-public forum
for First Amendment purposes. A court has the authority to
restrict political speech within the courtroom to preserve
its purpose as a forum for adjudication of civil and
criminal disputes and to protect the parties’ rights to a
fair trial, and here, we conclude that the trial court’s
restriction on Aleem’s speech was both reasonable and
viewpoint neutral. Hence, the trial court’s order to Aleem
to remove his Tookie Williams T-shirt did not violate his
First Amendment rights.
Although we recognize that it was within the trial court’s
discretion to order Aleem to remove his Tookie Williams
T-shirt the trial court failed to follow appropriate
contempt procedures and therefore, we vacate the trial
court’s contempt finding. We hold that the court abused its
discretion when it held him in direct contempt for this and
other behavior. We conclude that the trial court (1) failed
to warn Aleem before holding him in direct contempt for
behavior that was not extreme under Colorado Rule of Civil
Procedure 107(a)(2) (2006); and (2) inconsistently ordered
Aleem to remove his Tookie Williams T-shirt and then
permitted him to wear it in front of the jury, such that it
nullified any justification for its initial order to remove
it.
Consequently, we make the rule to show cause absolute and
reverse the trial court’s contempt finding and sentence.
II. Reasons for Granting Writ
Aleem urges this Court to grant original jurisdiction
pursuant to Colorado Appellate Rule 21 (2006) because he
cannot pursue an adequate remedy through an appeal. He
contends it would be fundamentally unfair to require him to
serve his sentence without first having his judgment and
sentence reviewed. We agree.
This Court has the discretion to determine whether to
exercise original jurisdiction over a case pursuant to
C.A.R. 21. C.A.R. 21(a)(1); Fogani v. Young, 115 P.3d 1268,
1271 (Colo. 2005). Relief under C.A.R. 21 is extraordinary
and therefore limited in purpose and availability. C.A.R.
21(a)(1); People v. Dist. Court, 790 P.2d 332, 334 (Colo.
1990). We may only grant relief under C.A.R. 21 when the
trial court has exceeded its jurisdiction or to review a
serious abuse of discretion when appellate review would be
inadequate. C.A.R. 21(a)(1); People v. Miller, 25 P.3d
1230, 1231 (Colo. 2001).
Original jurisdiction is an appropriate means to review
contempt orders. Halaby, McCrea & Cross v. Hoffman, 831
P.2d 902, 906 (Colo. 1992); Losavio v. Dist. Court, 512
P.2d 266 (Colo. 1973). This Court has exercised
jurisdiction in a contempt case similar to the case at
hand. In Losavio, a district attorney was held in contempt
of court and sentenced to fifteen days in jail. Id. at 266.
He filed a writ of prohibition in this Court to prevent the
execution of the sentence and we issued a rule to show
cause ultimately vacating the contempt judgment. Id.
Original jurisdiction is appropriate when a petitioner
risks being further sanctioned for contempt if review is not
granted. Halaby, McCrea & Cross, 831 P.2d at 906 (citing
Losavio, 512 P.2d at 267). Original jurisdiction is
appropriate in this case because Aleem has been sentenced
to immediate incarceration stayed only upon our order. No
adequate remedy is otherwise available.
III. Facts and Proceedings Below
Aleem’s attire first became an issue on the second day of
trial when the prosecutor objected that it impermissibly
injected political issues into the trial. Aleem’s T-shirt
said “U.S. History 101” and had a picture of a white
overseer whipping a black slave. The court ordered Aleem to
remove the shirt to protect his and the People’s right to a
fair trial, stating that his T-shirt might improperly
influence the jury. Aleem complied with the court order and
changed his shirt.
The next day at trial, Aleem arrived thirty-seven minutes
late wearing a T-shirt saying “Redemption” and depicting
Stanley “Tookie” Williams, a black man who had been
executed in California shortly before Aleem’s trial. Upon
objection by the prosecution that the T-shirt impermissibly
introduced outside issues into the trial, the court ordered
Aleem to remove his T-shirt. Aleem refused, stating that he
wore the T-shirt for political reasons. After Aleem’s
fourth refusal to remove his shirt, the court held him in
contempt and ordered him into custody.
Recognizing that both the prosecutor’s objection to the
Tookie Williams T-shirt and Aleem’s refusal to remove it
arise from its symbolic meaning, we must digress to explain
its significance.[fn1] The trial court’s answer to the
Order and Rule to Show Cause informs us regarding the
political debate surrounding Stanley Tookie Williams. It
states that it is common knowledge that Williams was
convicted of murder, sentenced to death, and executed only
a few months before Aleem’s trial. Further, it notes that
Williams received a great deal of media attention, was
well-known to the public, and spurred political debate
concerning the death penalty. Aleem argues that the image
of Tookie Williams accompanied by the word “redemption”
also has religious significance because redemption is a
religious term that means “to be free from the consequences
of sin.”
The court, Aleem, and Aleem’s attorney engaged in a long
colloquy which spanned twenty-five pages of the record
discussing the political meaning of this T-shirt and the
court’s reasons for ordering Aleem to remove it. The tone
of this discussion was one of escalating frustration. While
the court continually asserted its duty to maintain the
order and decorum of the courtroom, Aleem remained adamant
that he was being singled out for unfair treatment and that
he should be able to exercise his rights as a political
advocate.
During this discussion, Aleem argued that he was a
political activist and said he would not change the clothes
that he wears every day, stating that he did not feel that
he “should be forced to change [his] attire to [be in
court] and put on some monkey suit or something out of
character with who [he is].” Aleem then accused the court
of discriminating against his T-shirt’s particular message.
He said that the court would allow shirts advocating
mainstream political positions in the courtroom. He accused
the judge of hiding behind the podium and called the court
a “demonocracy.” As he was being taken into custody he
warned, “if anything happens to me in your custody . . . the
People will be held accountable for this” and “I know what
you devils is about.”
The court responded to Aleem’s arguments stating that a
courtroom is not a place for political activism, but for
the presentation of evidence. It informed Aleem that its
job is to protect his and the People’s right to a fair
trial and that it was within the court’s authority and
discretion to make sure that nothing interfered with the
integrity of the criminal process. The court stated that the
problem with the T-shirt was what it “potentially says to
the jury” because it could be an “improper influence on
[them].”
The court also explained that it would require others to
remove clothing with other political messages if the attire
was brought to its attention or the subject of an
objection. As an example the court stated that if the
prosecutor was wearing a tie with a political symbol on it,
“I’d say, you need to go change your tie.”
This colloquy was interrupted at one point when the court
ordered that Aleem be taken into custody. While Aleem was
in custody, the trial court discussed Aleem’s behavior with
his attorney, informing his attorney that it would not
tolerate any further political attire for the remainder of
the trial and asking Aleem’s attorney to communicate to
Aleem that the court did not want any additional “outbursts”
or “affront to the dignity of [the court].”
After taking a recess to give Aleem’s attorney an
opportunity to talk with Aleem in private, the court
brought Aleem back into the courtroom to continue with the
trial. Before the jury was brought in, the court gave Aleem
another opportunity to speak. Aleem apologized to the court
for his behavior stating that he did not mean to be
disrespectful to the court. However, he continued to assert
his right to wear this shirt in the courtroom.
The court stated that it respected Aleem’s position, but
repeated its reasons for keeping political statements out
of the courtroom. After much discussion, the court allowed
Aleem to wear his Tookie Williams T-shirt for the remainder
of the day, but warned him not to wear clothes bearing
political statements for the remainder of the trial.
When the court ordered removal of Aleem’s handcuffs, the
Deputy Sheriff asked whether that meant Aleem was
completely out of custody. Aleem also requested
clarification from the court as to whether he was still in
custody. When the court stated that it had found him in
contempt of court and that he remained in custody, Aleem
refused to have his handcuffs removed, stating that he
would rather “get it resolved now” or go back to jail than
sit in the courtroom under arrest.
The record does not indicate when, but before the jury was
returned to the courtroom, Aleem’s handcuffs were removed.
In the interest of continuing with the trial, the court
then issued Aleem an order to show cause why he should not
be held in contempt and set a hearing date following the
conclusion of trial.
At the show cause hearing, Aleem requested an evidentiary
hearing which the court denied. The court reasoned that no
hearing was required because it held Aleem in direct
contempt for behavior which occurred in its presence. The
court said the only reason it had delayed the show cause
hearing was to avoid further delay of the trial, not to
provide Aleem with the opportunity for an evidentiary
hearing. Throughout the hearing, the court implied that it
had already decided the issue of contempt and the purpose
of the show cause hearing was to determine Aleem’s
sentence:
All right, this matter comes before the Court upon the
Court’s finding that Mr. Aleem was in direct contempt of
the Court’s order that occurred during trial in this
matter. . . . I set [the matter] over for sentencing not
because he is entitled to a hearing but because of the
fact that the trial needed to be completed. . . .
[Aleem] willfully, intentionally disobeyed a Court order
and for that reason he was found in contempt. . . I found
you in contempt and today I am sentencing you to
forty-five days in the Adams County Jail.
The court cited Aleem’s “egregious” and “out of control”
behavior: his thirty-seven minute tardiness on the third
day of trial, wearing a political T-shirt that he knew
would be unacceptable from the court’s order the previous
day, willfully and intentionally disobeying the court’s
order to remove it, yelling at the court and calling the
court a “demonocracy” (which Aleem defined as “the rule of
devils and demons”), and encouraging his supporters to
stand and chant in the courtroom.[fn2] Aleem’s attorney
stated that he understood prior to the hearing that the
contemptuous behavior concerned Aleem’s T-shirt. The trial
court never warned Aleem during the trial that his
behavior, other than refusing to remove his T-shirt, placed
him at risk of being held in contempt.
After providing the basis for its contempt finding, the
court heard statements on Aleem’s behalf, including
arguments that Aleem’s shirt was a lawful expression of
free speech under the First Amendment. The court also
allowed Aleem to speak, at which time he apologized for his
behavior and further explained why wearing the Tookie
Williams shirt was important to him.
The trial court sentenced Aleem to forty-five days in
county jail and denied his motion to stay the execution of
his sentence.
IV. Analysis
We begin our analysis with a discussion of a trial court’s
inherent authority to control the courtroom. We then turn
to Aleem’s argument that the contempt and sentence should
be vacated because wearing a political T-shirt in the
courtroom is protected speech under the First Amendment. We
hold that his conduct was not constitutionally protected in
the courtroom because the courtroom is a non-public forum
for First Amendment purposes and the trial court’s
restriction on his speech was both reasonable and viewpoint
neutral.
Next, we address Aleem’s argument that the trial court
abused its discretion when it held him in contempt for
refusing to remove his T-shirt and for his other behavior
at trial. While we recognize that the trial court had the
discretion to hold Aleem in contempt for refusing to obey a
lawful court order, we hold that the trial court abused its
discretion on the facts of this case. First, the trial court
failed to warn Aleem before holding him in direct contempt
for his other behavior at trial, which we conclude was not
so extreme that no warning was needed under C.R.C.P.
107(a)(2). Second, the trial court abused its discretion by
acting inconsistently with regard to its order to Aleem to
remove his Tookie Williams T-shirt such that it nullified
the justification for making him remove it — to
preserve order in the courtroom.
Authority of the Court
Courts are charged with a duty to maintain order within the
courtroom and to insure a fair trial. Ryan v. Cronin, 553
P.2d 754, 755 (Colo. 1976) (citing then-existing ABA
Standards Relating to the Functions of the Trial Judge,
Standard 7.1). The ABA Standards suggest that a judge has a
duty to ensure that “every proceeding before him or her be
conducted with unhurried and quiet dignity and should aim to
establish such physical surroundings as are appropriate to
the administration of justice.” ABA Standards for Criminal
Justice: Special Functions of the Trial Judge, Standard
6-1.1 (3d ed. 2000). Although not binding precedent on this
Court, we often cite to the ABA Standards and find them
instructive in this case.
The judiciary has inherent authority to use all powers
reasonably required to protect the efficient function,
dignity, independence, and integrity of the court and
judicial process. Pena v. Dist. Court, 681 P.2d 953, 956
(Colo. 1984) (citations omitted). The power of contempt
falls within a court’s broad authority. Illinois v. Allen,
397 U.S. 337, 343-44 (1970); In re J.E.S., 817 P.2d 508,
511 (Colo. 1991). A court may hold a party in contempt for
any conduct which interferes with the court’s
administration of justice, is derogatory to the dignity of
the court, or tends to bring the judiciary into
disrespect. Losavio, 512 P.2d 266. Such conduct includes
disruptive behavior that interrupts judicial proceedings or
obstructs the administration of justice, and disobedience
of a court order. C.R.C.P. 107(a)(1).
The Supreme Court recognizes the contempt power as
absolutely essential to the duties imposed upon the court.
Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 450
(1911). The dual purpose of the contempt power is to
vindicate the dignity and the authority of the court and to
preserve its viability. See Bd. of County Comm’rs v.
Nineteenth Judicial Dist., 895 P.2d 545, 548-49 (Colo.
1995); Thrap v. People, 558 P.2d 576, 578 (Colo. 1977).
There are limits, however, to the court’s contempt power.
It may not be used to protect the judge’s dignity. In re
Estate of Elliot, 993 P.2d 474, 478 (Colo. 2000). It must
be used with caution and self-restraint to vindicate the
rights of litigants and promote the administration of
justice. Id. Even so, we will only overturn a trial judge’s
finding of contempt upon a showing of an abuse of
discretion. Id.; People v. McGlotten, 134 P.3d 487, 491
(Colo.App. 2005). We now consider whether the court abused
its discretion by holding Aleem in contempt and sentencing
him to forty-five days in jail.
First Amendment
Aleem argues that the trial court abused its discretion by
holding him in contempt because his conduct was protected
by the First Amendment. Aleem claims that the statement
made by his Tookie Williams shirt is protected speech and
thus he was justified in disobeying the trial court’s order
to remove it. We hold that the trial court’s restriction of
his speech was consistent with the First Amendment because
a courtroom is a non-public forum for First Amendment
purposes and the court’s restriction of Aleem’s speech was
reasonable and viewpoint neutral.
We undertake a three-step inquiry to determine whether the
court’s restriction is permissible under the First
Amendment. Cornelius v. NAACP Legal Def. & Educ. Fund,
Inc., 473 U.S. 788, 797 (1985); Lewis v. Colo. Rockies
Baseball Club, 941 P.2d 266, 272-75 (Colo. 1977); Holliday
v. Reg’l Transp. Dist., 43 P.3d 676, 681-82 (Colo.App.
2001). First, we consider whether the government is
restricting protected speech and determine that wearing a
political T-shirt is protected speech. Cornelius, 473 U.S.
at 797; Lewis, 941 P.2d at 272. Next, we must determine
whether the courtroom is a public or non-public forum for
First Amendment purposes and hold that it is a non-public
forum. Cornelius, 473 U.S. at 797; Lewis, 941 P.2d at 272.
Finally, we decide whether the court’s restriction of
Aleem’s speech meets the standard for speech in a
non-public forum and hold that it does. Cornelius, 473 U.S.
at 797; Lewis, 941 P.2d at 275.
Wearing a Political T-shirt is Protected Speech
Aleem argues that his conduct was protected by the First
Amendment. We agree in part. Wearing buttons or symbolic
clothing is expressive First Amendment activity. Bd. of
Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569,
574-75 (1987) (characterizing the wearing of a button or
T-shirt as speech); Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 508 (1969) (recognizing that wearing
black arm bands encompasses a primary First Amendment
right).
Aleem’s act of wearing the Tookie William T-shirt to make a
political statement falls within this protected category of
speech. The image of Tookie Williams accompanied by the
word “redemption” has several expressive meanings. Aleem’s
shirt contains a symbol that has various meanings to
different people.[fn3] Aleem argues that he was wearing the
shirt for political and religious reasons. He notes that
“redemption” carries the connotation of overcoming prior
sin. The trial court, however, stated that it was concerned
about allowing a political message into the courtroom.
Hence, the T-shirt’s political message was the basis of the
court’s restriction.
Because the court is a state actor, the government
restricted his speech. Shelley v. Kraemer, 334 U.S. 1, 14
(1948); People v. Garberding, 787 P.2d 154, 156 (Colo.
1990). Hence, Aleem’s T-shirt is protected speech and we
must turn to the second step of the Cornelius analysis.
The Courtroom is a Non-public Forum
Although the status of a courtroom for purposes of the
First Amendment is a question of first impression in this
Court, we conclude, as have many other courts, that a
courtroom is a non-public forum.
To determine the level of First Amendment protection given
to speech on government property, courts examine the nature
of the forum. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 44 (1983); Lewis, 941 P.2d at 272. The
Supreme Court has defined three types of fora: the
traditional public forum, the governmentally designated
public forum, and the non-public forum. Perry, 460 U.S. at
45-46; Lewis, 941 P.2d at 272. The type of forum where the
speech occurs dictates the standard of review that applies
to determine whether the government’s restriction on that
speech is permissible. Perry, 460 U.S. at 44; Lewis, 941
P.2d at 272. Speech in non-public fora receives lesser
protection than speech in public or designated public fora.
Perry, 460 U.S. at 46; Lewis, 941 P.2d at 272-73.
A non-public forum is a public place that is not a forum
for public communication, either by tradition or by
designation. Perry, 460 U.S. at 46; Lewis, 941 P.2d at 273.
The defining feature of a non-public forum is that it has
never been designated for indiscriminate expressive
activity by the general public. See U.S. Postal Serv. v.
Council of Greenburgh, 453 U.S. 114, 128-29 (1981). The
mere use of a non-public forum for communicative purposes
does not necessarily make it a designated public forum. See
id.
A designated public forum is created when the government
opens a non-public forum for use by the public for assembly
and speech. Cornelius, 473 U.S at 802. The Supreme Court
has held, “[w]e will not find that a public forum has been
created in the face of clear evidence of a contrary intent,
nor will we infer that the government intended to create a
public forum when the nature of the property is
inconsistent with expressive activity.” Id. at 803.
By contrast, public fora “have immemorially been held in
trust for the use of the public, and . . . have been used
for purposes of assembly, communicating thought between
citizens, and discussing public questions.” Perry, 460 U.S.
at 45 (quoting Hague v. Comm. for Indus. Org., 307 U.S.
496, 515 (1939)). Traditional public fora typically include
streets, sidewalks, and parks. United States v. Grace, 461
U.S. 171, 177 (1983); Lewis, 941 P.2d at 272; Holliday, 43
P.3d at 682.
Courts that have considered the issue have held that
courthouses, especially courtrooms, are non-public fora.
E.g., Grace, 461 U.S. at 178 (implying that the Supreme
Court building and its grounds other than public sidewalks
are non-public fora); Huminski v. Corsones, 396 F.3d 53,
90-91 (2d. Cir. 2005) (holding that courthouses and
courtrooms are non-public fora); Mezibov v. Allen, 411 F.3d
712, 718 (6th Cir. 2005) (holding that courtrooms are
non-public fora); Berner v. Delahanty, 129 F.3d 20, 26 (1st
Cir. 1997) (holding that a courthouse, especially a
courtroom, is a non-public forum).
We agree with these decisions and conclude that a courtroom
is a non-public forum for First Amendment purposes. A
courtroom is for the adjudication of civil and criminal
disputes. Berner, 129 F.3d at 26; Huminiski, 396 F.3d at
91. To fulfill this purpose, courtrooms demand intense
concentration on important matters. Berner, 129 F.3d at 28.
Hence, the disruption created by expressive activity within
a courtroom weighs heavily against the conclusion that a
courtroom is a public forum. See Cornelius, 473 U.S. at
804. Further, courts have not granted general public access
to the courtroom for expressive use. Grace, 461 U.S. at
178; Huminski, 396 F.3d at 90-91. The mere fact that the
public is admitted to the courtroom does not render it a
public forum. Grace, 461 U.S. at 178.
The Court’s Restriction is Reasonable and Viewpoint
Neutral
Having determined that the courtroom is a non-public forum
for First Amendment purposes, we now consider whether the
court’s restriction on Aleem’s speech was proper. Speech in
a non-public forum is subject to greater restriction than
speech in public or designated public fora. Speech in a
non-public forum can be restricted if two conditions are
met: (1) the restrictions are reasonable and (2) the
government is not suppressing the expression merely because
the public official opposes the speaker’s viewpoint. Perry,
460 U.S. at 46.
The Court’s Restriction Was Reasonable
We find that the court’s restriction of Aleem’s political
expression was reasonable because of the courtroom’s narrow
purpose and the court’s duty to protect the parties’ rights
to a fair trial.
Courtrooms serve a very specific purpose as fora designated
for the adjudication of civil and criminal matters. Berner,
129 F.3d at 26; Huminski, 396 F.3d at 91. Courtrooms must
be neutral, politically impartial environments dedicated to
fairness and equal treatment of the litigants. Berner, 129
F.3d at 27; People v. Pennisi, 563 N.Y.S.2d 612, 615
(N.Y.App.Div. 1990). To this end, the court has an
obligation to maintain courtroom decorum. See Thrap, 558
P.2d at 577-78.
The issue we must decide is whether a court’s restriction
of political speech is reasonable in carrying out its duty
and purpose. As a general matter, the reasonableness of a
restriction must be determined in light of the purposes of
the forum and all of the surrounding circumstances.
Cornelius, 473 U.S. at 809; Huminski, 396 F.3d at 92.
While we have not squarely addressed a court’s ability to
restrict political speech in the courtroom, we have implied
that courts have authority to limit the speech of trial
participants. In Ryan, we considered a case involving a
trial court’s contempt order against a defendant for
refusing to remove a political button. 553 P.2d at 755.
Although we did not analyze the First Amendment implications
of the court’s order because the issue was not before us,
we implied that the trial court had the authority to
maintain order within the courtroom by restricting a
defendant’s attempt to communicate to the jury with his
button.[fn4] Id.
Other jurisdictions, however, have explicitly allowed
restrictions on participants’ as well as spectators’ speech
in the courtroom. Some jurisdictions have permitted trial
courts to restrict political expression within the
courtroom because it interferes with the courtroom’s
purpose. In Berner, the First Circuit held that a court did
not violate a lawyer’s First Amendment rights by ordering
him to remove a button advocating a particular stance on a
ballot initiative. 129 F.3d at 27. The First Circuit
concluded that the attorney’s political expression
interfered with the purpose of the courtroom by
“tarnish[ing] the veneer of political imperviousness that
ideally should cloak a courtroom, especially when the
partisan sentiments are completely unrelated to the court’s
business.” Id. The court reasoned that allowing this
political expression would undermine the neutrality of the
courtroom by suggesting political partiality or favoritism
by the court. Id. at 26-27.
Other jurisdictions have held that symbolic clothing or
paraphernalia is disruptive to the courtroom’s intended
purpose to be scrupulously dedicated to the appearance of
justice and fairness. One court stated:
[T]he wearing of noticeable or obtrusive, expressive or
symbolic clothing, uniforms, and/or accessories, including
ribbons, ties, armbands, buttons, flowers, etc., or other
carrying of certain tangible objects such as signs,
flags, dolls, pictures, distinctive books, etc., whether
utilized as illustrations of concern, etc., for or against
persons, issues, or causes can constitute conduct
disruptive to the courtroom environment, which environment
must be scrupulously dedicated to the appearance as well
as the reality of fairness and equal treatment.
Pennisi, 563 N.Y.S.2d at 616.
The court’s duty to protect the People’s and defendant’s
rights to a fair trial provides another basis for the
court’s restriction. Courts have recognized the need to
restrict speech to avoid impermissible influences on the
jury that may compromise a defendant’s right to a fair
trial. See, e.g., Carey v. Musladin, 127 S. Ct. 649, 653-54
(2006) (holding that while some lower courts have held that
spectator speech infringes upon a defendant’s right to a
fair trial, federal law regarding the potentially
prejudicial effect of spectators’ courtroom conduct is not
clearly established); Norris v. Risley, 918 F.2d 828,
831-33 (9th Cir. 1990) (holding that the trial court’s
restriction of spectators’ wearing of buttons reading
“Women Against Rape” during a rape trial was proper under
the First Amendment because it presented an unacceptable
risk of impermissible outside influence to the jury).
A defendant’s clothing may impact his right to a fair
trial. Estelle v. Williams, 425 U.S. 501, 504-05 (1976);
Eaddy v. People, 174 P.2d 717, 718-19 (Colo. 1946). In
order to preserve the right to a fair trial, defendants may
not be brought before a jury handcuffed and shackled to
avoid interference with the jury’s fair and just decision
of the question of non-guilt. Estelle, 425 U.S. at 504. The
fact that a defendant, by his own conduct, jeopardizes his
right to a fair trial is of little consequence. United
States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969).
Because determining the actual impact a particular practice
has on the judgment of jurors is difficult, it is
unnecessary that jurors indicate that their ability to be
impartial has been affected. See Irvin v. Dowd, 366 U.S.
717, 723 (1961); In re Stone, 703 P.2d 1319, 1322
(Colo.App. 1985). Whether a political message creates a
noticeable disruption in the courtroom is not determinative
because it is at the very least distracting. Berner, 129
F.3d at 28.
We conclude that on balance the court’s obligation to
maintain courtroom decorum and ensure parties’ rights to a
fair trial outweighs trial participants’ and spectators’
First Amendment rights to express political views. Hence, a
court’s restriction of political views within the courtroom
will generally be reasonable.
Here, the trial court’s order that Aleem remove his Tookie
Williams T-shirt was reasonable because the shirt contained
several political messages that had the potential to
interfere with the courtroom’s purpose and impact the
parties’ rights to a fair trial by affecting the jurors’
ability to be impartial. Because it was the defendant,
Aleem, who wore the shirt, the potential for distraction
and prejudice was especially high.
One of the court’s purposes in ordering Aleem to remove the
shirt was to maintain courtroom decorum. The trial court,
like the trial court in Berner that required the removal of
a political button, acted to preserve the courtroom for its
intended purpose: a trial of criminal charges. The court
informed Aleem that it would not allow him to be a
political activist within the courtroom, repeatedly stating
that the courtroom is a place for the presentation of
evidence, not for political activism.
The trial court also acted reasonably in restricting
Aleem’s political speech because it sought to preserve the
parties’ rights to a fair trial. The court recognized that
a defendant’s clothing may affect his right to a fair
trial, as we held in Eaddy. The court stated that it
ordered Aleem to remove his T-shirt to ensure that the jury
was not improperly influenced by extraneous information, in
this case the political statement made by his shirt.
Aleem argues that the court’s order to remove his T-shirt
was not justified by any possible distraction or prejudice
to the parties because no evidence in the record indicates
that the jury was prejudicially influenced by his shirt. We
disagree, because as the Berner court held, actual evidence
of jury disruption is not necessary where the speech at
issue is at least distracting. It was reasonable for the
trial court to conclude that Aleem’s T-shirt was, at the
very least, distracting because of its politically charged
content. We therefore conclude that the court’s restriction
of Aleem’s speech was reasonable.
The Court’s Restriction Was Viewpoint Neutral
Next, we address whether the court’s restriction was
viewpoint neutral and conclude that it was.
While content discrimination is allowed in non-public fora
because the limited purposes of such fora justify
government restriction of the subject matter of speech and
the speaker’s identity, the government violates the First
Amendment when it makes restrictions based on the point of
view espoused by the speaker. Rosenburger v. Rector &
Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995);
Cornelius, 473 U.S. at 806; Perry, 460 U.S. at 48-49.
Content or subject matter discrimination occurs when a
state regulates speech based on its topic or subject matter
irrespective of the viewpoint expressed by the speaker. See
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
811-12 (2000) (holding that a law which regulated only
sexual speech was a subject matter restriction); Carey v.
Brown, 447 U.S. 455, 461-62 (1980) (stating that a law that
only allowed picketing on the subject of labor was subject
matter discrimination).
Viewpoint discrimination occurs when the government
restricts speech based upon the position advocated by the
speech. Perry, 460 U.S. at 46. As such, viewpoint
discrimination is a more egregious form of content
discrimination because the government controls the dialogue
or different viewpoints about a particular subject matter.
See Rosenburger, 515 U.S. at 829; Mesa v. White, 197 F.3d
1041, 1047 (10th Cir. 1999). In a non-public forum,
viewpoint discrimination differs from content
discrimination because the government can restrict the
general subject matter of speech (content discrimination)
without engaging in viewpoint discrimination. Courts have
held that viewpoint discrimination occurs when the
government chooses among similarly situated speakers to
advance or suppress a specific point of view merely because
the public official opposes that view. Lamb’s Chapel v.
Ctr. Moriches Union Free Sch. Dist., 508 U.S 384, 393-94
(1993); Perry, 460 U.S. at 46. For example, a state engages
in viewpoint discrimination when it permits pro-death
penalty speech, but restricts anti-death penalty speech.
The challenge for courts when reviewing the state’s
restriction of speech in a non-public forum is to
distinguish between what constitutes permissible content
discrimination based on subject matter as opposed to
impermissible viewpoint discrimination. Sammartano v. First
Judicial Dist. Court, 303 F.3d 959, 970 (9th Cir. 2002);
Grossbaum v. Indianapolis-Marion County Bldg. Auth., 100
F.3d 1287, 1298 (7th Cir. 1996). Because the line between
content and viewpoint discrimination is difficult to
discern, courts must carefully scrutinize any content-based
discrimination. Grossbaum, 100 F.3d at 1298. While we have
never defined the analysis courts should employ to make
this distinction, we find the Ninth Circuit’s reasoning in
Sammartano helpful.
Sammartano sets forth two considerations that guide us to
determine whether a particular restriction is based on the
subject matter or viewpoint. Sammartano, 303 F.3d at
970-71. First, we must be sure that the restriction is of
the appropriate level of generality — that the
court’s restriction is of a subject and not the viewpoint of
that subject. Id. at 971-72. For example, a restriction
targeting “all bikers” wearing clothing indicating their
affiliation with biker groups is not an appropriate subject
matter restriction because it is too narrow. Id. It targets
the viewpoint of those wearing clothing indicating an
affiliation with some organization or point of view. Id. In
Lamb’s Chapel, the Supreme Court held that a state’s
restriction discriminated on the basis of viewpoint when
the state allowed the presentation of all views pertaining
to a particular issue except for those dealing with the
subject matter from a religious perspective. 508 U.S. at
393-94.
The court’s motivations are important to this analysis.
Sammartano, 303 F.3d at 971; Grossbaum, 100 F.3d at 1298. If
there is reason to regulate a certain expression —
for example there is a record of past incidents of violence
or disorder specifically linked to certain clothing
— then a narrower subject matter restriction may be
permissible because the reason for this restriction is not
merely that the public official opposes the view.
Sammartano, 303 F.3d at 972.
Second, courts must evaluate the expression and determine
whether it is truly incompatible with the forum. If the
expression is incompatible, then the restriction is more
likely to be permissible. Sammartano, 303 F.3d at 971
(citing Cornelius, 473 U.S. at 806). Again, the court’s
motivations can be determinative. If the court intends to
restrict the particular message rather than to protect the
purpose of the forum, then the restriction constitutes
viewpoint discrimination. Id.; Perry, 460 U.S. at 49
(upholding a provision of a public school collective
bargaining agreement which granted preferential access to
the interschool mail system in part because “[t]here is . .
. no indication that the school board intended to
discourage one viewpoint and advance another”). The
government’s intent matters even if the restriction itself
is facially viewpoint neutral. Cornelius, 473 U.S. at 812.
To determine this intent, in addition to considering the
stated purpose for the restriction we also consider the
court’s application of the restriction to determine whether
the restriction is a pretext for viewpoint discrimination.
Mesa, 197 F.3d at 1048; Holliday, 43 P.3d at 683-84.
Turning to the facts of this case, when the trial court
ordered Aleem to remove his Tookie Williams T-shirt, it did
so to prevent the jury from reading the message on his
T-shirt. Applying the Sammartano analysis, we conclude that
the court’s restriction was viewpoint neutral.
Under the first Sammartano consideration of whether the
restriction is a general one, we note that the court
ordered Aleem to remove the T-shirt because it contained
“political speech.” Political speech is the broad category
of speech being restricted. The court at no time referred
to a specific subset of political speech, such as a
statement about the death penalty or the meaning of
redemption. Neither did the court say nor imply that its
order to remove the T-shirt was based on any statement or
political message contained on the T-shirt. Hence, we
conclude that the restriction was of a general subject
matter. See Cornelius, 473 U.S. 788 (upholding an exclusion
of political speech from a non-public forum).
Addressing the second consideration under Sammartano, we
consider whether the trial court was seeking to protect the
purpose of the forum — in this case the purpose of
the courtroom to adjudicate disputes and provide a forum
for fair trials — by ordering this restriction. We
conclude that it was.
When the court ordered Aleem to remove his Tookie Williams
T-shirt, it stated that he was not allowed to wear it
because the courtroom is not a place for political
activism, but a forum for the presentation of evidence. The
court said it would restrict any political speech with a
similar order. However, the court apparently allowed jurors
to wear clothing with various levels of political content,
including a Hustler hat, a Bob Marley T-shirt, and a NASCAR
T-shirt.
When conducting the reasonableness analysis we concluded
that a trial court may reasonably determine that political
speech is inconsistent with the purpose of the courtroom.
Therefore, on its face this restriction appears viewpoint
neutral because the stated purpose of the court’s order is
to protect the purpose of the forum, not to restrict the
particular message contained by the T-shirt. The more
difficult issue, however, is whether the court’s
inconsistent application of this restriction reveals
discrimination against Aleem’s specific viewpoint.
Aleem argues that the court’s restriction was not viewpoint
neutral because it did not order the removal of political
clothing worn by jurors including a Hustler hat, a Bob
Marley shirt, and a NASCAR shirt. Aleem argues that these
items also contain political messages. He notes that Bob
Marley was a reggae musician and a political figure in
Jamaica also associated with the Rastafarian religion and
Black Nationalism. Aleem also argues that NASCAR followers
are generally considered Southern, white conservatives. He
did not address the possible political message made by the
Hustler hat, and therefore we do not speculate as to its
political implications.
We recognize that Bob Marley was a political figure whose
image constitutes expressive speech similar to that of
Tookie Williams.[fn5] Nothing in the record, however,
indicates that the court intentionally restricted the
Tookie Williams T-shirt but did not order a similar
restriction of the juror’s Bob Marley T-shirt because it
disfavored the political message made by Tookie Williams.
Our review of the record indicates that the court did not
oppose the viewpoint the Tookie Williams T-shirt presented.
The court neither stated nor implied a specific concern
with the message contained in Aleem’s T-shirt. In the
court’s words, it “certainly respected [Aleem’s] position.”
When Aleem asked the court about other examples of
political speech, the court stated that it would give the
same order if another participant’s clothing contained
political speech and this fact was brought to its attention
by objection. The court explained to Aleem that if the
prosecutor had worn a tie with a political symbol on it that
it would have ordered him to remove it.
Aleem did not object to either the juror’s Bob Marley
T-shirt or the juror’s NASCAR T-shirt during trial. We
acknowledge that our review of whether the court’s
restriction was viewpoint neutral might be impacted had
there been some indication that the trial court was aware
that jurors were wearing T-shirts containing political
speech similar to that of the Tookie Williams T-shirt and
did not order their removal, but such is not the case.
Unlike Aleem’s T-shirt, which was brought to the court’s
attention by the prosecutor’s objection, there were no
objections raised concerning the juror’s T-shirts. We have
no evidence that the court was aware of the presence of
these T-shirts in the courtroom, and, if so, whether it
knew of their political significance.
Hence, based on a full review of the record we conclude
that the court acted within its discretion consistent with
its responsibility to preserve the purpose of the courtroom
when it ordered Aleem to remove his Tookie Williams
T-shirt, after concluding that the political speech brought
to its attention might improperly influence the jury. Courts
are given broad discretion to protect the court’s function
and purpose. The court’s order to remove the T-shirt was
consistent with the purpose of the courtroom as a forum for
the presentation of evidence and the court’s duty to ensure
Aleem’s and the People’s right to a fair trial. Thus, we
conclude that this order was viewpoint neutral.
Having concluded that the trial court’s order to Aleem to
remove his T-shirt did not violate his First Amendment
rights, we turn to whether the trial court abused its
discretion when it held Aleem in contempt and sentenced him
to forty-five days in jail.
The Trial Court’s Contempt Findings
A court’s discretionary power to hold parties in contempt
is necessarily broad because of the contempt power’s broad
purpose of ensuring that the court’s functions remain
unimpeded. Mainland v. People, 139 P.2d 366, 367 (Colo.
1943). More specifically, the purpose of the contempt power
is to maintain the dignity and authority of the court and
to preserve its functionality. Bd. of County Comm’rs, 895
P.2d at 548-49; Thrap, 558 P.2d at 577. C.R.C.P. 107 limits
the court’s contempt power by defining the type of behavior
that courts may punish with contempt sanctions. Behavior
subject to contempt sanctions is disorderly or disruptive
behavior and disobedience of any lawful order of the court.
C.R.C.P. 107(a)(1). Hence, to determine whether the trial
court here abused its discretion, we undertake a fact-based
analysis which considers the particular circumstances
presented here.
Initially, we consider the context in which Aleem’s
behavior occurred. All of Aleem’s allegedly contemptuous
behavior arose from the trial court’s initial order to
remove his T-shirt depicting Tookie Williams. When Aleem
refused to remove his shirt, the court engaged in an
extensive dialogue regarding the validity of the court’s
order with Aleem and his attorney that spans twenty-five
pages of the trial transcript. The tone of this discussion
was passionate on both sides, with Aleem expressing the
reasons why he did not want to take off his shirt and the
court responding with its justification and explanation why
it was important for him to do so. The transcript reveals
mounting frustration on both sides. The court attempted to
be sensitive to Aleem’s position by allowing him to speak
his views, but eventually lost patience because of the
delay the discussion was causing and his insistence on
expressing his political views. We summarize this portion
of the record.
After Aleem defied the court’s order to remove his shirt
four times, the court held him in contempt and ordered him
into custody.[fn6] Just before his removal from the
courtroom, Aleem accused the judge of hiding behind the
podium, called the court a “demonocracy,” and warned that
the People would be held accountable if anything happened
to him in custody, saying, “I know what you devils is
about.” While Aleem was in custody, the trial court
discussed Aleem’s behavior with his attorney, informing him
that the court would not tolerate any further political
attire for the remainder of the trial, and asking Aleem’s
attorney to explain to him that the court did not want any
additional “outbursts” or “affront to the dignity of [the
court].”
Aleem apologized when he returned to the courtroom. He
explained that he refused the court’s order to remove his
Tookie Williams T-shirt because he is a political activist,
that he wears that type of shirt every day, and that he did
not feel that he should have to change his attire to appear
before the court by “put[ting] on some monkey suit or
something out of character with who I am.” The court then
told him that it respected his position, but that it was
under a duty to control the courtroom and to ensure the
integrity of the process so that all parties achieve a fair
trial.
The court then allowed him to wear the shirt for the rest
of the day at trial. When Aleem asked about the status of
his contempt sanctions, the court told him that it had
found him in contempt and issued a show cause order to
appear on the contempt charge, setting the hearing for
after the conclusion of the trial.
At the show cause hearing, the court reaffirmed that it had
already decided the contempt issue at trial and sentenced
Aleem to forty-five days in jail. The court did not give
Aleem an opportunity to contest the contempt, but instead
told him that whether he was in direct contempt had already
been determined. As a result, it is unclear whether this
was really a show cause hearing or merely a sentencing
hearing. Adding to the confusion, the court noted that
Aleem’s conduct at trial was “egregious” and “out of
control,” and besides wearing an inappropriate political
T-shirt, included arriving late to trial, yelling at the
court and calling it “demonocracy,” and orchestrating his
supporters to stand and chant. It is unclear from the
record whether the behavior besides his refusal to remove
his Tookie Williams T-shirt provided additional bases for
the court’s contempt holding, or whether the court
considered this other behavior as justification for
enhancing Aleem’s sentence. Notably, Aleem’s attorney
stated that he understood prior to the hearing that Aleem
was being held in contempt only for refusing to remove his
T-shirt.
We now turn to C.R.C.P. 107 to determine whether the trial
court abused its discretion.
The Warning Requirement
In cases of direct contempt, our rules of civil procedure
require the trial court to warn a person to stop disruptive
behavior unless that person’s conduct is “so extreme that
no warning is necessary.” C.R.C.P. 107(a)(2). Hence, absent
a prior warning, a court may hold a person in direct
contempt for “extreme” behavior, or for behavior “that has
been repeated despite the court’s warning to desist.” Id.
We cannot overstate the importance of this warning for
behavior that is not so extreme as to be clearly
contemptuous.[fn7] A court’s failure to warn a person
before holding him in contempt for conduct that is not
extreme acts as a complete defense to the contempt charge.
Unless the conduct is extreme, unwarned behavior is, by
definition, not contemptuous under C.R.C.P. 107(a)(2).
Likewise, if a person stops non-extreme misconduct after
the court’s warning, then there can be no finding of direct
contempt under C.R.C.P. 107(a)(2).
C.R.C.P. 107 was amended in 1995 to require a prior warning
for all but extreme conduct. It appears from a letter from
Richard W. Laugeson, Chairman of the Supreme Court Civil
Rules Committee, that the purpose of this amendment was to
bring the rule into conformity with Colorado case law
requiring a prior warning, including People v. Ellis, 540
P.2d 1082, 1083-84 (Colo. 1975). Letter from Richard W.
Laugesen, Chairmain, Supreme Court Civil Rules Committee,
to Howard M. Kirshbaum, Justice, Supreme Court of Colorado
(Nov. 15, 1994) (on file with the Colorado Supreme Court).
The warning requirement in C.R.C.P. 107 is consistent with
The ABA Standards for Criminal Justice, which also require
a warning. ABA Standards for Criminal Justice: Special
Functions of the Trial Judge, supra, Standard 6-4.3. The
ABA Standards for Criminal Justice aptly summarize the
purposes of a prior warning. First, a warning may be
effective to stop further disruption and is thus preferable
to contempt sanctions when misbehavior initially arises.
Id. at Commentary to Standard 6-4.3. Second, a warning
assures the court and public that further misconduct will
be considered willfully contemptuous and deserving of
punishment. Id.
Because we have not previously considered what kind of
conduct might qualify as “extreme” under C.R.C.P. 107, such
that no prior warning is needed, cases predating the 1995
amendment to C.R.C.P. 107 are instructive here. In two
cases, contempt findings were reversed where trial courts
failed to warn contemnors about behavior that can be
classified as less than “extreme.” Ellis, 540 P.2d at
1083-84 (where a criminal defendant answered the court’s
questions in a manner that “offended the trial judge”);
Hill v. Boatright, 890 P.2d 180, 187 (Colo.App. 1994)
(where an attorney disagreed with the court’s
interpretation of an ethical rule by saying, “Sir, it does
not”), rev’d in part on other grounds, Boatright v. Derr,
919 P.2d 221 (Colo. 1996).
On the other hand the court of appeals upheld a trial
court’s finding of direct contempt without a prior warning
under C.R.C.P. 107 for conduct that it found so extreme
that no warning was necessary. People v. Holmes, 967 P.2d
192, 194 (Colo.App. 1998). In Holmes, an attorney, who was
also a criminal defendant at the time, directed an “obscene
comment” toward the prosecutor by calling the court’s offer
to continue his hearing “protracted bullshit.” Id. at 193.
The court considered the fact that the contemnor was an
attorney and thus “under a duty to conduct himself with
civility in court proceedings.” Id. at 194.
We find cases from other jurisdictions helpful in
determining the level of misbehavior that requires a prior
warning. Other courts have drawn the line by requiring a
warning for “borderline conduct” that the contemnor may not
be aware is contumacious. United States v. Thoreen, 653
F.2d 1332, 1341 (9th Cir. 1981); United States v. Seale,
461 F.2d 345, 366 (7th Cir. 1972).[fn8] We find
particularly persuasive other jurisdictions’ consideration
of the status of the contemnor, reasoning that a party to a
proceeding is held to a lesser standard of awareness of
what constitutes proper conduct in the courtroom than an
attorney. E.g., Thoreen, 653 F.2d at 1341 (reasoning that
an attorney who had years of trial experience should have
been aware of the widespread custom of only allowing
attorneys and parties to sit at the counsel table, such
that no warning was necessary before holding him in
contempt for violating this custom). See also Seale, 461
F.2d at 366 (defining conduct constituting misbehavior to
support a contempt conviction as “conduct inappropriate to
the particular role of the actor, be he judge, juror,
party, witness, counsel or spectator”).
Turning to this case, the record reveals that the trial
court warned Aleem that it would hold him in contempt if he
did not remove his Tookie Williams T-shirt, but, in
contrast, it did not warn him that his other behavior at
trial was potentially contemptuous.[fn9] At the show cause
hearing, the trial cited Aleem not only for refusing to
remove his T-shirt, but also for arriving late to
trial,[fn10] and for yelling at the court and calling it a
“demonocracy.” Thus, by applying C.R.C.P. 107(a)(2), this
conduct is not contemptuous unless it is so extreme that no
warning was needed. Hence, we determine whether this
behavior was sufficiently “extreme” to excuse the warning
requirement.
First, we note that under the context in which it occurred
here, yelling at the court and calling it a “demonocracy”
is borderline conduct for which a prior warning is
required. When considered in isolation, such name-calling
very well may be contemptuous conduct for which direct
contempt sanctions are appropriate. In this case, however,
Aleem’s comment occurred in the context of the court’s
extended colloquy regarding the validity of and the reason
for its order to remove his Tookie Williams T-shirt. We
find this behavior distinguishable from the extreme conduct
found in Holmes because “demonocracy,” unlike calling a
court order “protracted bullshit,” is not an obscenity, and
because unlike the contemnor in Holmes, Aleem is not an
attorney. Instead, Aleem is a criminal defendant and a
self-described political activist. As a non-attorney, Aleem
may be accustomed to a certain type of expression, and as
such, he is not held to a standard consistent with
familiarity with the legal setting. Aleem’s status as a
non-attorney, when combined with the particular
circumstances of the lengthy dialogue in which the court
and Aleem engaged as to why his T-shirt should be removed,
weighs against finding his conduct to be so extreme that no
warning was needed before holding him in contempt.
We note that the purposes of giving a warning might have
been served had Aleem been properly warned. Such a warning
might have avoided continued disruptions and continued
disrespect of the court. Of course, such a warning would
have put him on notice that further misconduct would be
considered willfully contemptuous and deserve punishment.
For example, if the court had warned Aleem when he called
the court a “demonocracy,” it could have held him in
contempt under C.R.C.P. 107(a)(2) when he later said, “I
know what you devils is about.” Hence, prior to being held
in contempt for yelling and calling the court a
“demonocracy” and using the word “devils” to describe the
system, Aleem should have been given a warning that this
behavior was unacceptable and that, if repeated, would
constitute contempt of court and be punishable by contempt
sanctions. Absent this required warning and under the
circumstances presented, we hold that Aleem’s behavior was
not contemptuous.
The Trial Court’s Inconsistency in Handling Aleem’s Tookie
Williams T-shirt
Initially, the trial court followed the proper procedure
required under C.R.C.P. 107(a)(2) to hold Aleem in direct
contempt during the trial for refusing to remove his Tookie
Williams T-shirt after giving repeated warnings that his
failure to do so would result in contempt. At that point,
the court’s direct contempt finding, coupled with either
punitive or remedial sanctions, would have been justified to
preserve the purpose of the court proceedings to prevent
the introduction of impermissible influences to the jury,
and to vindicate the dignity and authority of the court
after Aleem’s refusal to obey its order. See C.R.C.P.
107(a)(4) (defining punitive sanctions for contempt as
punishment for conduct that is found to be offensive to the
authority and dignity of the court); C.R.C.P. 107(a)(5)
(defining remedial sanctions as those imposed to force
compliance with a lawful order).
The trial court’s actions with regard to Aleem’s T-shirt,
however, were inconsistent with either the purpose of
punitive or remedial sanctions. After exercising its
discretion to order Aleem to remove his T-shirt and to hold
him in direct contempt for refusing to do so, the court
retracted these discretionary orders and allowed Aleem to
wear the shirt for the rest of that day. The court
undermined its initial discretionary decision that the
shirt was potentially disruptive to the jury when it
nevertheless exercised its discretion to allow him to wear
it in front of the jury. Then, at the subsequent show cause
hearing, the court treated the hearing as a mere sentencing
hearing when it sentenced Aleem to forty-five days in jail.
When the trial court retracted its contempt finding and
allowed Aleem to wear his shirt in front of the jury, it
nullified any remedial or punitive justification for making
him remove his shirt. If the court’s initial purpose was
remedial, then sanctioning Aleem after the trial for
refusing to remove his T-shirt served no legitimate purpose
because there was no immediate need to restore courtroom
order at the show cause hearing. Likewise, if the court’s
purpose for sanctioning Aleem at trial was punitive, then
allowing him to wear the shirt at trial undermined this
purpose. The retraction of the contempt order followed by a
finding of punitive contempt after the fact for conduct
that the court expressly allowed appears fundamentally
unfair.
We note that the trial court had other options for dealing
with Aleem’s disobedience besides holding him in contempt.
A court’s duty to invoke the contempt power with caution
and self-restraint, Elliot, 993 P.2d at 478, includes a
duty to consider less drastic alternatives to contempt
sanctions. In re Chaplain, 621 F.2d at 1276. Such
alternatives include removing a defendant from the courtroom
until he promises to conduct himself properly or binding
and gagging him. Allen, 397 U.S. at 343-44. If the court
wanted to continue with the trial instead of deciding the
contempt issue when it arose, either of these options would
have been more suitable solutions than allowing him to wear
the offending shirt anyway and then punishing him for it
later. Hence, we conclude that the trial court, through its
inconsistent actions, abused its discretion by sanctioning
Aleem for refusing to remove his Tookie Williams T-shirt.
We hold that the trial court abused its discretion by
holding Aleem in direct contempt by (1) failing to warn
Aleem before holding him in direct contempt for behavior
that was not extreme under C.R.C.P. 107(a)(2); and (2) by
inconsistently ordering Aleem to remove his Tookie Williams
T-shirt and then permitting him to wear it in front of the
jury, such that it nullified any justification for its
initial order to remove it.
V. Conclusion
We make the rule to show cause absolute and reverse the
court’s contempt finding and sentence.
[fn1] In its answer to the Rule to Show Cause, the trial
court alleges that messages presented by this shirt are
derived from the man that Tookie Williams was. According to
the Petition for Executive Clemency on Behalf of Stanley
Tookie Williams submitted to the governor of California
prior to his execution, after being sentenced to death and
placed on death row, Tookie Williams, a founder and leader
of the Crips gang, openly renounced his prior life and
spoke of the futility of gang violence. Petition for
Executive Clemency on Behalf of Stanley Tookie Williams at
1 (Nov. 8, 2005),
http://www.cm-p.com/pdf/executiveclemency.pdf. Williams
dedicated the remainder of his life on death row to openly
condemning gang violence by warning others — gang
members, at risk youth, and educators — of the
errors of the path he followed and by writing books,
including children’s books on the dangers of gang violence.
Id. at 6. He was nominated for a Nobel Peace Prize and
Nobel Prize in Literature based on his anti-gang work. Id.
at 8.
[fn2] The record certified to us does not include the
portion of the trial transcript where this incident
occurred, and so we do not consider whether this behavior
provided a basis for the trial court’s contempt finding.
[fn3] The Petition for Clemency on behalf of Tookie Williams
describes the complexity of the message of Tookie Williams.
Petition for Executive Clemency on Behalf of Stanley Tookie
Williams, supra. To many his image is symbolic of the
political debate surrounding the death penalty; prosecutors
may view it as anti-death penalty advocacy, while death
penalty abolitionists may see it as an image of the
continued injustice dealt by the death penalty. However,
the symbolism of Tookie Williams’ image is not limited to
political argument for or against the death penalty. Id. at
1-2. Many members of the black community view Tookie
Williams as a hero because his advocacy for a life of
redemption and condemnation of gang violence has saved many
children from pursuing that path and convinced those
already involved with gangs to seek their own personal
redemption. Id. at 3-4. Further, many teachers and law
enforcement officials view his image and work as a
much-needed tool to reach out to young children or gang
members and discuss the harsh realities that accompany a
life of violence from the perspective of a man they
respect. Id. at 5,7.
[fn4] The only issue before this Court was whether the
district court had jurisdiction to review the contempt
order. Id.
[fn5] Because we find that the Bob Marley T-shirt includes a
political message, we need not address the more subtle and
difficult question of whether NASCAR is a political symbol.
[fn6] It is unclear from the record whether the trial court
intended at this point for the contempt sanctions to be
punitive — to punish Aleem for disobeying a court
order — or remedial — to compel Aleem’s
compliance with the court’s order to remove his shirt. See
C.R.C.P. 107(a)(4) (defining punitive sanctions for
contempt as punishment for conduct that is found to be
offensive to the authority and dignity of the court);
C.R.C.P. 107(a)(5) (defining remedial sanctions for
contempt as sanctions imposed to force compliance with a
lawful order).
[fn7] Although Colorado is one of only a few jurisdictions
that requires a prior warning by rule or statute, federal
courts and many other state courts recognize the importance
of warning a person before making a finding of direct
contempt. See, e.g., In re Chaplain, 621 F.2d 1272, 1276
(4th Cir. 1980) (holding that advance warning must be given
to a possibly unaware contemnor that a contempt conviction
may ultimately result from his repeated conduct); United
States v. Abascal, 509 F.2d 752, 755 (9th Cir. 1975)
(recognizing that under some circumstances, a warning is
necessary before a court may impose sanctions for criminal
contempt); United States v. Schiffer, 351 F.2d 91, 95 (6th
Cir. 1965) (recognizing that prior warnings are generally
desirable); Boysaw v. Superior Court, 999 P.2d 748, 752
(Cal. 2000) (requiring a prior warning unless the conduct
is outrageous and immediately recognizable as an act of
contempt); In re Herkenhoff, 931 P.2d 1382, 1385 (N.M.
1997) (requiring a prior warning where the conduct is not
“flagrant”); Weaver v. Superior Court, 572 P.2d 425, 428
(Alaska 1977) (requiring a prior warning before a court may
hold a person in direct criminal contempt).
[fn8] For example, the Second Circuit held that a warning is
required “where a reasonable person would not know that the
court considered his conduct contemptuous.” In re Pilsbury,
866 F.2d 22, 27 (2d Cir. 1989). In so holding, the Second
Circuit overturned a contempt conviction where a trial
court failed to warn an attorney before holding her in
contempt for proceeding with “exaggerated slowness” after
being ordered to leave the courtroom and asking if the
judge’s comments were on the record. Id. at 26-27.
The Fourth Circuit likewise reasoned that a warning is
required before a possibly unaware contemnor is held in
contempt for a “last straw” repetition of conduct. In re
Chaplain, 621 F.2d at 1276. The conduct at issue in that
case included a pro se defendant continually interrupting
the judge, refusing to sit down at the judge’s direction,
badgering witnesses, evading questions from the bench, and
“refus[ing] to observe even minimal requirements of common
civility.” Id. at 1274. The Fourth Circuit upheld the
contempt conviction, reasoning that the court adequately
warned the contemnor that further interruptions would
result in contempt. Id. at 1277.
[fn9] At most, the court warned Aleem’s attorney, outside
Aleem’s presence, about his behavior. We need not decide
whether this indirect warning complies with C.R.C.P.
107(a)(2) because all of Aleem’s contemptuous behavior
cited by the trial court at the show cause hearing preceded
the court’s discussion with Aleem’s attorney.
[fn10] While Aleem’s tardiness occurred in front of the
court, circumstances outside of court led to this behavior.
Contemnors are entitled to an evidentiary hearing when
circumstances outside of the presence of the court may
constitute a lawful justification for a contemnor’s
contemptuous behavior in court. See People v. Lucero, 584
P.2d 1208, 1212-13 (Colo. 1978); People v. Ganatta, 622 P.2d
107, 109 (Colo.App. 1980). Because the trial court did not
give Aleem an evidentiary hearing on this issue, this
cannot be a proper ground for holding Aleem in direct
contempt.
JUSTICE COATS, concurring in the judgment only.
While I agree that the trial court’s contempt order must be
vacated, I do not join the majority opinion.
Whether summary contempt at trial might have been justified
under the circumstances of this case or not, the trial
court simply failed to summarily hold the defendant in
contempt for the conduct which it ultimately sanctioned
with incarceration; and it clearly violated the dictates of
procedural due process by citing the defendant at a later
time, without affording him notice or an opportunity to
defend. Because the majority effectively acknowledges as
much, I consider wholly gratuitous its exploration of the
complex relationship between contempt powers and First
Amendment guarantees, as well as its attempt at severely
restricting the type of conduct summarily punishable as
contemptuous. Perhaps most importantly, however, I object to
the majority’s unspoken (but unmistakable) presumption,
which flatly conflicts with the prior jurisprudence of this
court, that rule 107 of the Colorado Rules of Civil
Procedure circumscribes the inherent contempt powers of the
criminal courts of this jurisdiction.
The power to punish conduct that obstructs the
administration of justice or tends to bring the court into
disrepute is an inherent and indispensable power of the
court. People v. Barron, 677 P.2d 1370, 1372 (Colo. 1984);
Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892). Rule 107
of the rules of civil procedure prescribes a procedure for
punishing contemptuous conduct, which generally complies
with due process. See People v. Lucero, 196 Colo. 276, 584
P.2d 1208 (1978). Whether or not the rule also
circumscribes the inherent powers of those courts to which
the civil rules apply, we have made clear that it does not
limit the powers of criminal courts. See Barron, 677 P.2d
at 1372-74; see also id. at 1374-76 (Neighbors, J.,
dissenting) (“I would put an end to the uncertainty and
hold that C.R.C.P. 107 provides the exclusive means of
punishing criminal contempt under the presently existing
statutes and rules. . . .”).
Both rule and case law recognize the validity of summary
contempt orders under limited circumstances. Because
summary proceedings inherently conflict with fundamental
precepts of due process, however, they have been sanctioned
(except in the most unique of circumstances) only in
circumstances of immediate necessity. See Taylor v. Hayes,
418 U.S. 488 (1974). Rather than finding it necessary to
maintain order or force compliance with any particular
court order by summary contempt, the trial court below,
after lengthily disputing with the defendant, ultimately
acquiesced in the defendant’s refusal to remove the shirt
in question and permitted him to remain in the courtroom
while wearing it. Despite initially placing him in custody
and having him removed from the courtroom, the trial court
relented at that point, released the defendant from
restraint, and merely ordered him to show cause, after
trial, why he should not be held in contempt. Not only did
the trial court ultimately cite the defendant for refusing
to remove his shirt, but also for other unwarned behavior
it considered offensive, all without notice or an
opportunity to defend.
That being the case, nothing more was required of this
court in the exercise of its original jurisdiction than to
vacate the trial court’s order for failing to meet minimal
standards of due process. Whether, or to what extent, a
criminal defendant’s First Amendment rights might further
limit the ability of a court to maintain decorum and exact
compliance with its orders through summary proceedings need
not be resolved in this case. Similarly, where unnecessary
to the resolution of any pending controversy, as here, I
consider it extremely ill-advised to attempt an exclusive
definition of conduct subject, without specific warning, to
sanction as contemptuous. We have long emphasized that the
notion of due process must remain flexible enough, in this
context as in others, to account for a wide variety of
circumstances and competing interests. See, e.g., Barron,
677 P.2d at 1373 (quoting Austin v. City & County of
Denver, 156 Colo. 180, 184, 397 P.2d 743, 746 (1964)).
As I have noted elsewhere and in other contexts, see,
e.g., Medina v. People, 114 P.3d 845, 861 (Colo. 2005)
(Coats, J., concurring in judgment); Colo. Ground Water
Comm’n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d
62, 81 (Colo. 2003) (Coats, J., concurring in part and
dissenting in part), I consider it important not to confuse
an authoring judge’s summarization and interpretation of
broad legal doctrines with the court’s creation of law
through the resolution of actual cases and controversies.
Because I fear the distinction is not easily made by lower
courts busily attempting to decipher and apply our
holdings, and because I have become convinced that the mind
is less sharply focused when the outcome of the litigation
is not dependent upon the court’s opinions, I am loath to
opine more broadly than necessary to give context to the
judgment resolving the case. I therefore do not join what I
consider to be the majority’s wide-ranging dicta concerning
the contempt power.
Instead, I concur only in the judgment of the court.