Fuld, Stanley H.

English

St. John's University School of Law

St. John's Law Review Volume 44 Number 4 Volume 44, April 1970, Number 4 Article 1 December 2012 The Right to Dissent: Protest in the Courtroom Stanley H. Fuld Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Fuld, Stanley H. (1970) "The Right to Dissent: Protest in the Courtroom," St. John's Law Review: Vol. 44 : No. 4 , Article 1. Available at: https://scholarship.law.stjohns.edu/lawreview/vol44/iss4/1 This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWVOLUME 44 APRIL 1970 NUMBER 4THE RIGHT TO DISSENT: PROTESTIN THE COURTROOMtSTANLEY H. FULD*I very much appreciate the high honor you have done me. Indeed,it is a source of particular pleasure that this great urban Universityhas chosen to award me its Doctor of Laws degree in this historicallysignificant centennial year.You undoubtedly recall that Emperor Charles V granted theIsland of Malta to the Knights of St. John in the 16th century and thatthey then adopted the title of the Knights of Malta. With this historicalbit in mind, I would tell you a story, probably apocryphal, about theearly days of St. John's University. An applicant for admission, whenasked why he was so eager to attend St. John's, replied that he had reada great deal about the University and had always possessed a strongdesire to visit Malta. Today, of course, it is highly unlikely that anyonewould be unaware of St. John's location, for the University has areputation not only in this State but throughout the country forscholastic achievement -and, if I may say so, on the athletic field aswell.It is sufficient, I think, in speaking of the University's accomplish-ments over the past century, simply to say that they have been signifi-cant and that its School of Law has contributed greatly to thoseaccomplishments. Your Law School has a history, a record of achieve-ment, of which all associated with it must be very proud. Its graduatesinclude those who have gone on to become leading members of the barand captains of industry and business as well as those who, in largenumbers, have devoted themselves to the public service as legislatorsand judges. In fact, it is interesting to note, there are 84 St. John'salumni who are now serving as judges on courts throughout the State.I shall speak to you briefly of a matter about which many havetThis address by Chief Judge FuId was given on March 21, 1970 at St. John'sUniversity School of Law upon receiving the Doctor of Laws degree.* Chief Judge of the State of New York.ST. JOHN'S LAW REVIEWwritten and more have talked - the right to dissent. Although I realizethat little can be added to what has already been said, the subject isparticularly timely today when dissent and protest, assuming a newguise, have invaded the courtroom.The decade just concluded has witnessed a procession of events,separate but related, dramatically posing the question whether oursociety, which has traditionally relied on legislative and judicial pro-cesses as the media for change, can accommodate to the concept of civildisobedience as a means to a desired end. Thus, there have been civilrights marches, anti-war protests, draft card burnings, university sit-ins- some of which are legal, indeed, constitutionally protected, activ-ities, while others are deliberate violations of law designed to dramatizeopposition to authority or even to compel a change in policy with thethreat of disruption. Taken together, these highly publicized forms ofprotest have produced an atmosphere in which even issues which wereonce debated calmly have taken on explosive dimensions. It is true, ofcourse, that there have been other manifestations of unrest in ourhistory, but I venture to say that neither in scope nor in intensity didthose occurrences prepare us for the confrontations and social cata-clysms of the present day.Underlying such phenomena, both past and present, has been theelement of protest: protest against racial discrimination and social andeconomic maladjustment, protest against governmental policy, protestagainst educational programs and university authority and protestagainst our entire political system. From Henry Thoreau, who refusedto pay a poll tax because it would support a state government com-mitted to enforcement of the Fugitive Slave Law' to Martin LutherKing, who saw injustice anywhere as "a threat to justice everywhere," 2to the present day, public protest has served as a major vehicle for theexpression of dissent.In point of fact the right to publicly proclaim one's dissent is trulypart of our heritage. It is an integral aspect of the freedom of thought andexpression which is basic to our democratic system of government, andit must be preserved, protected and cherished. But a protest which goesbeyond the expression of dissent or disagreement -whose object iscoercion rather than persuasion -cannot be justified. Just as theviolent suppression of legitimate dissent is wrong and intolerable, sotoo it is equally wrong and intolerable for the expression of dissent totake the form of violence or incitement to violence, of interference1 H. THORFAU, ON CiviL DISOBEDIENCE 229 (New Am. Library ed. 1960).2 King, Letter from Birmingham City Jail, NEw LUEAD, April 22, 1968, at 3.[VOL. 44:591THE RIGHT TO DISSENTwith the rights of others. Simply put, there is no room for dissent whichviolates the rule of law. Such dissent not only transcends the bounds ofconstitutionally protected individual liberty but, since its aim is todestroy the rights of others, it represents a repudiation of the veryprinciple of individual liberty on which it is purportedly premised. Inthe words of Judge Learned Hand, liberty is not license. As he de-clared:it is not freedom to do as one likes. That is the denial of liberty,and leads straight to its overthrow. A society in which men recog-nize no check upon their freedom soon becomes a society wherefreedom is the possession of only a savage few ....Because of this, those who are interested in the preservation ofour liberties and of our democratic system must, of necessity, be con-cerned about the disruptive and obstructive tactics which a few unrulydefendants have recently employed in our courtrooms. Although iso-lated instances of such behavior may not really pose a threat to theadministration of justice today, continued resort to those tactics on anysubstantial scale could seriously hamper the operation of our courts andthereby frustrate the vital purpose they serve. In very fact, our lawsand the judicial system stand as the bulwarks of our liberties. It hasbeen aptly said that a capable and fair judicial system is, indeed, "[t]heonly real alternative which a democracy has to violent dissent andarmed revolution."4If anything is clear, it is that we cannot countenance the substitu-tion of deliberately fomented disorder and calculated disruption oforder, dignity and respect for the law and the courts which administerthe law. The attainment of evenhanded justice and fairness demandsthat the judicial process be conducted in a calm and dispassionateatmosphere. As the late President Kennedy declared in September of1962 - though in a somewhat different context -our nation is founded on the principle that observance of the lawis the eternal safeguard of liberty and defiance of the law is thesurest road to tyranny .... in a government of laws and not ofmen, no man... and no mob, however unruly or boisterous, isentitled to defy a court of law. If this country should ever reach thepoint where any man or group of men ... could long deny thecommands of our court and our Constitution, then no law wouldstand free from doubt, no judge would be sure of his writ and nocitizen would be safe from his neighbors. 58 L. HAND, T Spnrr OF LiERTY 190 (1960).4 1970 CATALOr OF Tin NATONAL CoLI.n oF STAT TRIAL JuDGES 7 (1970).5 N.Y. Times, Oct. 1, 1962, at 22, col. 6.1970]ST. JOHN'S LAW REVIEWNo grievance, however meritorious, which dissenters and protesterson trial may have, can possibly justify the degeneration of courtroomproceedings "into a chaos of deliberate insults and purposeful disrup-tion."" Nor can there be any warrant for their attempted use of thecourtroom as a forum for propaganda or for the expression of views,political or otherwise, which have no relevance whatsoever to the mat-ters in issue before the court. Defendants who very properly insist upontheir right to a fair trial do themselves and the cause they espouse, aswell as the administration of justice, a disservice by resorting to dis-orderly and contemptuous behavior deliberately intended to render thejudicial process ineffectual.There are numerous important constitutional safeguards whichour courts scrupulously enforce for the protection of a defendant'srights. They are designed to assure a fair trial for every defendant,regardless of who he is or the views he holds. These safeguards arerarely disregarded at the trial level, but, if they are, there are appellatecourts to which recourse may be had and corrections effected. In brief,our judicial system is one which rests on reason and on the concept offairness for all, and it does not lie within the competence of any person,dissenter or non-dissenter, layman or lawyer, to destroy that tried andtested system, whatever may be his political motivation or how deephis antipathy to the existing social order.I am hopeful - despite predictions to the contrary - that appro-priate restraining influence will be exercised by counsel and that anylawyer who is faithful to his oath and the canons of professional re-sponsibility will be able to persuade his client to desist from unrulyand objectionable conduct and rely, instead, on reasoned appeal tothose who must pass upon his cause - the trial judge and jury in thefirst instance and, in the event of a conviction, the appellate courts.Surely, a reasonably intelligent defendant, no matter how disenchantedwith our way of life or with our political system, must, if properlyadvised, realize that it is to his own best interests that the trial be leftin the hands of counsel so that his defense may be most clearly andstrongly presented.Let us suppose, though, that some incidents of disorderly andobstructionist tactics continue. What is to be done? Although thereare no ready answers, many and varied suggestions have been advancedas to how to deal with the problem. All of them deserve to be exploredbut, in appraising their worth and endeavoring to find an appropriatesolution, we must be mindful that some raise constitutional questions.6 N.Y. Times, Feb. 17, 1970, at 42, col. 2.[VOL. 44:591THE RIGHT TO DISSENTWe must remember, too, that under our system of justice a fair trialcannot be waived and that we must protect the defendant against in-justice despite his own efforts to render justice difficult to achieve. Wemust be careful, therefore, not to adopt measures which would them-selves offend against constitutional guarantees and threaten the in-tegrity and dignity of the judicial process as well. In other words, excessmust be answered not by excess but by reason and a due regard for theconstitutional compact which binds us all. Moreover, not only must wedo our utmost to assure that our judicial and political processes areresponsive to the needs of our times, but we must also seek out the causesfor the disaffection upon which those who challenge our system of gov-ernment and justice batten. We have, to be sure, made some progressin the past years in this direction but much more remains to be doneto convince all of our citizens that they have a stake in this society.But, nonetheless, one thing is clear. Defendants cannot be allowedto turn court proceedings into a shambles. Order and decorum theremust be if there is to be a meaningful trial. The issue is joined betweenthe rule of law and anarchy. Needless to say, as one thoughtful legalphilosopher -Professor Harry W. Jones of Columbia Law School -has put it, we cannot allow violence or anarchy toundermine the structure of ordered liberty that men of law havebuilt and maintained for the many centuries .... [P]rivate indi-viduals and private groups [may not] choose the laws they willobey as they choose the shirts they buy, liking this one and reject-ing the next. For then, as the contagion spreads, there is no law.And where there is no law, there is no liberty. And where there isno liberty, the people perish.7Before bringing these remarks to a close, may I tell you that, inorder to insure the single end we all desire, I am asking the PresidingJustices of the several Appellate Divisions -my fellow members ofthe Administrative Board -to join with me in a joint effort to devisesolutions to the challenge of calculated disruption of courtroom pro-ceedings with which we have been confronted. Mindful of constitu-tional obligations, we shall seek to establish guidelines which willassure a fair trial, courtroom decorum and the continued viability ofthe judicial process."7 H. JoNEs, THE EFFICACY OF LAW 102 (1968).00 [Ed. note.] On March 31, 1970, ten days after Chief Judge Fuld delivered his ad-dress, the Supreme Court, in Illinois v. Allen, 397 U.S. 337 (1970), forcefully sought to re-solve the problems created by obstreperous defendants. While recognizing that the sixthamendment grants an accused the right to be confronted with witnesses against him, theCourt held this privilege may be lost by a defendant's misconduct.[A] defendant can lose his right to be present at trial if, after he has been warned1970]596 ST. JOHN'S LAW REVIEWby the judge that he will be removed if he continues his disruptive behavior, henevertheless insists on conducting himself in a manner so disorderly, disruptive,and disrespectful of the court that his trial cannot be carried on with him in thecourtroom.Id. at 337.As alternatives to banishing the unruly defendant, the judge may utilize the tradi-tional weapon of criminal contempt, or keep the defendant under control by binding andgagging him. Hopefully, judicious use of these methods will alleviate the untenablesituation created by consciously disruptive defendants.

The Right to Dissent: Protest in the Courtroom

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The Right to Dissent: Protest in the Courtroom

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