Wendy Murphy could not believe the judge's order. She was serving as an attorney for the plaintiff in a Nebraska rape case, and the judge had just given her client a number of words she could not use in the courtroom — including the word "rape."
"The idea that a victim of violence in a criminal case cannot use the word ‘rape' is absurd," Murphy said.
Tuesday night, Murphy — an attorney specializing in representing crime victims, as well as a professor and occasional CNN commentator — participated in a panel discussion held in a half-full Salomon 001 on the role and the limits of speech within the courtroom. Few students were in the audience, which was mostly comprised of legal professionals, including Chief Justice Mary Lisi of the U.S. District Court in Rhode Island.
Titled "Judicial Privilege and Free Speech," the panel also included Robert O'Neil, director of the University of Virginia's Thomas Jefferson Center for the Protection of Free Expression, and moderator Ross Cheit, associate professor of political science and public policy.
Murphy recounted how she filed a motion against the state judge in federal court and was met with skepticism that her suit could have any standing. The federal judge hearing the case asked her why he should not throw her in jail for contempt, she said. A Nebraska state senator mockingly filed a lawsuit against God, arguing that if a rape victim can sue a judge, he could sue the Lord.
O'Neil said that the role of and stresses upon the court offered a fundamental paradox: While the courtroom is a "sacred" place, one that deserves special protections, the site of the room itself does not constrain judicial authority.
"It is only a physical space… the authority of a court transcends any physical locations," he said.
He recalled viewing a famous photograph of Judge Sarah Hughes administering the oath of office to Lyndon B. Johnson aboard Air Force One — a reminder that some things that happen under the authority of a judge do not take place in the courtrooms.
At the same time, O'Neil noted that certain limitations on courtroom speech on judges, attorneys, litigants and jurors do exist to facilitate the execution of justice and to protect the rights of all involved in the case.
O'Neil lamented the lack of legal scholarship on the issue, in particular on the subject of disruption and disturbance in the courtroom.
He cited one exception, Berner v. Delahanty, a case involving an attorney who wore a political button to a courtroom. The United States Court of Appeals ultimately found that "lawyers have no absolute right to wear (their political beliefs) on their sleeves" in the courtroom.
