Here is how its origins were described in a 1983 law review article:
It was supposedly replaced in the U.S. by the 1st Amendment, saying the following:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Then, the U.S. Congress delegated rule-making authority in criminal cases to the U.S. Supreme Court, and the U.S. Supreme Court produced a Rule 42, containing the following clause:
"If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents."
Wait a minute - but, the U.S. Congress:
- had no authority to re-delegate to the U.S. Supreme Court its Article I legislative authority delegated to the U.S. Congress by the People of the United States;
- had no authority to make law to infringe freedom of speech, and thus could not re-delegate such a right to infringe.
And, the U.S. Supreme Court consistently rules in 1st Amendment cases that any content-based regulation of speech is subject to strict scrutiny.
But - a branch of the government, the U.S. Supreme Court, is allowed to make a rule making it a criminal contempt to criticize itself?
And this is in the supposedly democratic United States of America in the 21st century?
So, how will we make the powerful 3rd branch, the judicial branch, accountable if judges are involved in misconduct and corruption, if:
- they gave themselves a gift of absolute immunity for malicious and corrupt acts;
- they gave themselves a gift allowing them, as alleged victims of a crime of "criminal contempt of court", to
- initiate criminal proceedings against their critics;
- appoint prosecutors, private or public, those whose livelihood they completely and totally regulate through licensing; and
- adjudicate such crimes?
And, note that judicial corruption is now rampant, people who raise that issue are targeted and punished, no present political candidates - President Trump included - made eradication of judicial corruption as their campaign promise, and those who do criticize judges and do make eradication of judicial corruption their campaign pledge, are being prevented from practicing law for their efforts?
In 2013, the prominent constitutional scholar Eugene Volokh condemned criminal prosecution of a pro se litigant for criticizing a judge. Of course, in 2015, the same Eugene Volokh ducked at the opportunity to voice to the U.S. Supreme Court that professional prosecution of an attorney on the same grounds of reasonable criticism of a judge is unconstitutional - but everybody has their limits of courage, especially on a topic that may involve their own livelihood.
In view of tremendous powers of courts to take away life, liberty, property, children, ruin careers, make people destitute, people are afraid to speak out against court corruption.
Instead, we see crowds of journalists and commentators in the social media treating obviously corrupt judicial decisions as Gospel and shredding commentators who dare to raise the issue of such bias and corruption - as long as court corruption is targeting individuals that the crowds do not like.
Apparently, it is not prohibited, and it will not constitute criminal contempt to praise corrupt court decisions.
So, is the American public aware that its 1st Amendment is no more in the American courts?
That judges who swear to uphold it as the condition of taking the bench, gave themselves a carte blanche to put you in jail for exercising it - by criticizing their own misconduct?
And, where are the crowds, the petitions to fight this blatant violation of the 1st Amendment and freedom of speech? This rule by which American federal courts gave themselves the right to prosecute people for seditious libel, for criticism of the government?
But, silencing a discussion is, as Judith Koffler, author of the law review article I interlinked above, state, is an equivalent of claiming infallibility - that the judiciary is never wrong.
And, if we punish for criticism of a judge, it means that criticizing this particular branch of the government, that undertook to police criticism against itself, is "constructive treason".
Are we still in a democracy?
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