In Carey, Warden v. Musladin, 549 U.S.70 (2006),the Supreme Court rejected an appeal by Mathew Musladin, who had argued that his Sixth Amendment right to a fair trial for the alleged murder of Tom Struder had been violated by a trial court’s decision to allow Struder’s family members to wear to court buttons bearing the victim’s picture. In so ruling, the Court overturned a decision of the Ninth Circuit Court of Appeals reversing the trial court’s decision on the buttons.

Writing for the Court, Justice Clarence Thomas rejected the appeals court’s conclusion that the trial court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Limiting the scope of such holdings to the holdings themselves, rather than to their dicta, Thomas observed that prior cases had dealt with governmental conduct rather than with private spectator conduct, so the case posed a new issue. Because no Court ruling applied to such private actions, the trial court decision “was not contrary to or an unreasonable application of clearly established federal law.”

In a concurring opinion, Justice John Paul Stevens questioned Thomas’s attempted distinction between actual rulings and the dicta supporting them. Of significance, Stevens separated himself from Justice David H. Souter’s concurrence by observing that “there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing process.”

Justice Anthony M. Kennedy’s concurrence pointed to the need for trials to be conducted “free from a coercive or intimidating atmosphere.” He saw no evidence of such coercion in this case, although he thought that courts needed to explore the issue and eventually formulate a clearer rule.

Souter thought that those who wore the buttons intended for them to elicit sympathy for the victim, but he found no evidence that the risk in this case had reached the “unacceptable” level. He observed that a majority of lower courts that examined the issue in other cases had let the convictions stand. He further thought the First Amendment issue needed clearer focus than it had been given in this case.

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