Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
A judge in Mississippi jailed a lawyer for criminal contempt of court for not saying the pledge of allegiance in his courtroom. He apparently rose and stood respectfully, but did not actually recite the pledge. And that was enough to see off the judge.
The order incarcerating him provides:BE IT REMEMBERED, this date, the Court having ordered all present in the courtroom to stand and recite the Pledge of Allegience, and having found that Danny Lampley, Attorney at Law, failed and refused to do so, finds said Danny Lampley to be in criminal contempt of court.
Someone needs to introduce this judge to West Virginia v. Barnette, which contains my favorite passage in the history of the court, written by the most eloquent justice in the history of the court, Justice Robert Jackson:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
See that part about officials high or petty? The judge is such an official. Obviously of the petty variety.
Politics
Comments
Funny, was he high?!, was my first thought.
Posted by: Abby Normal | October 7, 2010 11:07 AM
So my question is whether there's any possibility of a legal penalty for this judge's action. The cynic in me says there isn't.
Posted by: Physicalist | October 7, 2010 11:08 AM
The official in this case was probably high, and certainly petty.
Posted by: phantomreader42 | October 7, 2010 11:11 AM
I would think this is going to be a national story soon. Despite that the population at large would probably be split 50/50 on this, I would have to think that those involved in law would be pretty strongly against the judge.
Posted by: Odie | October 7, 2010 11:12 AM
Zilch. Judicial immunity is absolute.
Presumably, after a few years of litigation, the lawyer might get out of jail. I don't know whether an appeal might get the order stayed or even result in a permanent order from a higher court. I also don't know whether any action after the lawyer gets out of jail is even possible since the case would by then be moot.
Anyway, barring major expense on someone's part the judge is perfectly free to keep jailing anyone who doesn't do as ordered. The current instance provides a clear lesson that won't be lost on those appearing in that courtroom from now on, too, so the issue is unlikely to come up again.
Posted by: D. C. Sessions | October 7, 2010 11:25 AM
What kind of insane legal system would allow this?
Seriously, how can this happen?
Posted by: Janice in Toronto | October 7, 2010 11:34 AM
He's already out of jail. I don't think people ever stay in jail for years for contempt of court.
Posted by: Gretchen | October 7, 2010 11:35 AM
Physicalist: the state lege could probably impeach him. Needless to say, since no interns or cigars were involved, I'm not holding my breath.
Posted by: Raging Bee | October 7, 2010 11:37 AM
The judge probably does have immunity, but there has to be a statute under which the lawyer could be held in contempt. And I'm sure he can get released as soon as he files a habeas petition with the next highest court (or the presiding judge of the judicial district). And the judge will probably get smacked with at least a reprimand by the state bar for abuse of authority. I'm going to follow this story, and might post an update.
Posted by: peter irons | October 7, 2010 11:37 AM
Let me see if I understand this. A judge orders people in the courtroom to recite something, and can jail anyone who refuses? So...if the judge ordered everyone in the courtroom to recite Mary Had A Little Lamb and someone refused, that someone could end up in the slammer for contempt?
I'd like one day -- I'd even take twelve straight hours -- where I didn't have to be ashamed of something a government official has done.
Posted by: Ellie | October 7, 2010 11:53 AM
I know -- that was kind of the point. The case is now moot, so there's no prospect of any appeal and thus the judge is quite free to keep demanding that people in his courtroom say whatever he demands.
It's a power inherent in the judge's control of his courtroom. He could have fined the lawyer, but then the lawyer could have appealed to get the fine back. A stint in jail is history and the lawyer can't get it back.
Posted by: D. C. Sessions | October 7, 2010 11:54 AM
The judge in almost jailed Joe Pesci for contempt of court in "My Cousin Vinny" too. Judges have run amok!
And sorry but LOL at the guy who thought the lawyer would languish in jail for years for something like this.
As someone who has always refused to follow ceremony (e.g., not kneeling at church services) I'd feel proud of the gesture.
Posted by: NL | October 7, 2010 11:56 AM
Ed should have noted (from the blog link) that the lawyer was released after 5 hours in jail; of course, one minute would have been too long). Also, comments of the blod noted that the lawyer, Danny Lampley, has worked with the ACLU in school prayer cases, and that the judge, Talmadge Littlejohn, is a notorious racist; back in the '70s, he was a county prosecutor and was harshly scolded by federal courts for failing to pursue indictments against cops who shot and killed a black kid, essentially telling the grand jury to let the cops go. You could say, "Well, this is Mississippi, so what do you expect?" But this kind of outrageous behavior by prosecutors and judges happens all over the country, largely because they're shielded by immunity. Who was it who said, "Power corrupts, and absolute power corrupts absolutely." True then, true now.
Posted by: peter irons | October 7, 2010 12:00 PM
There usually is some judicial oversight in the state bar associations. All lawyers, including judges, are subject to discipline. A judge is given a good bit of latitude in his courtroom, but judicial tyranny is frowned upon. I can see him being reprimanded, at least.
I wonder if he has a history of this.
Posted by: Spanish Inquisitor | October 7, 2010 12:02 PM
It can happen. (ex-)Justice Roy Moore was removed from office for putting a 10-commandments monument in the court building.
Posted by: Dave Empey | October 7, 2010 12:02 PM
Judges like this always remind me of a scene from My Little Chickadee:
Posted by: Molly, NYC | October 7, 2010 12:05 PM
It would be justice I think, if the lawer could bill the judge at twice his normal hourly rate. Not that I think the law allows for that sort of thing. It's simply what strikes me as fair.
Posted by: Abby Normal | October 7, 2010 12:19 PM
Then what on earth was "Presumably, after a few years of litigation, the lawyer might get out of jail" supposed to mean?
Posted by: Gretchen | October 7, 2010 12:33 PM
Why does this judge hate our freedoms?
Posted by: Fastlane | October 7, 2010 12:42 PM
How can these guys even become judges. Very disturbing.
Kriss
Posted by: krissthesexyatheist | October 7, 2010 12:58 PM
D. C. Sessions: Judicial immunity is absolute.
Almost. Hypothetically, a judge can be impeached by the state House and tried by state Senate (or for federal judges, US House and Senate); usually with same maximum penalty as the federal. Mississippi's constitution looks typical on this. Even more hypothetically, if an offense was bad enough to get someone impeached, one might try to argue in court that the impeachment conviction breaches immunity for conduct in any of the charges; IAmNotALawyer don't know if it's ever been attempted, but would expect it's untested since impeachment is quite rare.
On the other hand, political chance of impeachment conviction for THIS kind of offense in Mississippi? Zilch. Nada. Bupkiss. Ranges all the way from slim to fat.
So, all that is rather moot.
Posted by: abb3w | October 7, 2010 1:08 PM
Posted by: Foggg | October 7, 2010 1:19 PM
There is some more interesitng info here:
http://nmisscommentor.com/
about Judge littlejohn.
He's a bit of a loose cannon.
Posted by: Chilidog | October 7, 2010 1:47 PM
@15 Dave: I believe Roy Moore was removed for failure to comply with the federal court order to remove the commandments monument. The sculpture had sat in the rotunda for months with nary a peep from the judicial tenure commission.
Posted by: TGAP Dad | October 7, 2010 1:51 PM
Beatty Chadwick was continued to be held in contempt because he continued to defy a court order to reveal where he hid his assets. Basically, he was will to spend the rest of his life in jail to spite his ex-wife.
Posted by: Ace of Sevens | October 7, 2010 2:10 PM
I once saw part of a movie set in the 50s where a kid sang the Internationale in class rather than recite the pledge of allegiance as a protest over how his parents were persecuted in the McCarthy witch hunts.
Posted by: Paen | October 7, 2010 2:21 PM
That the most recourse available is to get out of jail, and the cost would be years of litigation (because that's how long it takes for appellate cases in the USA.)
Posted by: D. C. Sessions | October 7, 2010 3:56 PM
As a Southerner, I can attest to the strong positive correlation between being named "Talmadge" and being a racist.
Posted by: Dwimr | October 7, 2010 4:03 PM
Ace of Sevens "Beatty Chadwick was continued to be held in contempt because he continued to defy a court order to reveal where he hid his assets. Basically, he was will to spend the rest of his life in jail to spite his ex-wife."
To be fair, you never met his ex.
Posted by: Modusoperandi | October 7, 2010 7:14 PM
Have you ever been to Mississippi? Those otherwise fixed constitutional stars do not shine in Mississippi. Most of Mississippi accepted civil rights for blacks and women only provisionally. Pending act 2 of the war of Northern aggression.
Posted by: Art | October 7, 2010 7:45 PM
This is a perfect example of why absolute Judicial immunity is a terrible thing. What the judge did here was criminal, and he really should be charged with false imprisonment, but that will not happen.
Posted by: G.Shelley | October 7, 2010 7:54 PM
It turns out that although the lawyer was released after five hours, it was only temporary, so that he could make a hearing on another case. After the hearing, he was rebooked.
Posted by: W. Kevin Vicklund | October 7, 2010 8:43 PM
It is well within the bounds of a person's First Amendment rights to NOT say the Pledge. (West Virginia Board of Education v. Barnette in 1943 AND Minersville School District v. Gobitis in 1940, both heard by the SCOTUS)
Posted by: WMDKitty | October 8, 2010 2:48 AM
"What kind of insane legal system would allow this?
Seriously, how can this happen?"
"Let me see if I understand this. A judge orders people in the courtroom to recite something, and can jail anyone who refuses? So...if the judge ordered everyone in the courtroom to recite Mary Had A Little Lamb and someone refused, that someone could end up in the slammer for contempt?"
Pretty much.
Legal counsel are servants of the Court and as such are subject to quite extensive control by the court.
There are a good many things that are legal and constitutionally protected that could be regarded as contempt of court: swearing, making obscene gestures; showing up in a t-shirt and jeans; wearing your hair in a foot-high purple mohawk; praying loudly during proceeding.
IF, the judge has the legal authority to require people to recite the pledge and the lawyer disobeys a direct direction from the judge to do so then it does potentially constitute contempt.
Of course, even if the judge does have that legal authority, it's still a stupid thing to do.
Pause too and consider the impact of this on the lawyer's client whose case has probably been delayed as a result and who the jury may punish for what they see as the misbehaviour of the lawyer or our of sheer pique at the delay.
Posted by: Ian Gould | October 8, 2010 3:03 AM
Consider the gross violation of Constitutional rights of this judge. He should be suspended from the bench immediately pending action by the state bar association and judicial tenure commission.
Posted by: Engineer-Poet | October 8, 2010 3:54 AM
er, violation of Constitutional rights BY this judge.
(c'mon, you m-fing blog software, let me post the correction already!)
Posted by: Engineer-Poet | October 8, 2010 3:56 AM
From the clarion ledger article:
"Littlejohn is unopposed for re-election on the Nov. 2 judicial election ballot. That’s a pity."
Any takers? I mean, if Mr Lampley can't stand.
Posted by: eddie | October 10, 2010 3:10 PM