Clearly Established Federal Law on Buttons in a Courtroom

Carey v. Musladin

In this case family members of the victim wore buttons with the victim’s picture during the trial while they occupied the first few rows of the spectators’ gallery. The question here is whether the lower court “unreasonably applied clearly established Federal law, as determined by the Supreme Court of the United States” in its ruling that, the Supreme Court having set out the test to determine whether a given courtroom practice creates “inherent prejudice” and thereby denies the defendant a fair trial, the court below was not at liberty to apply a different test.

In Williams the state forced the defendant to stand trial in prison garb. In Flynn the state positioned state troopers in the row immediately behind the defendant. The former was held to present “an unacceptable risk [of] impermissible factors coming into play” (Flynn) without furthering an “essential state” policy or interest; the latter was not.

This state-interest prong suggests that the test is not applicable to private action, and therefore using an alternative test is not an unreasonable application of clearly established federal law.

Justice Stevens writes separately to object to a comment that he has seen repeated, arguing that “the statutory phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States’ refers to ‘the holdings, as opposed to the dicta, of [the] Court’s decisions as of the time of the relevant state-court decision.” He also states that, in his opinion, “there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to the spectators in a courtroom who engage in actual or symbolic speech to express a point of view about an ongoing proceeding.”

Justice Kennedy argues that there would be relief under the Antiterrorism and Effective Death Penalty Act even in the absence of a ruling by the Supreme Court, and calls for a rule on this particular subject.

Justice Souter sees no serious question that the Flynn standard reaches the behavior of spectators, nor that the buttons in question here raise a risk of improper considerations. He concludes that the risk is not unacceptable because (a) most courts considering the issue have upheld the convictions (which seems to go to reasonableness as an objective-relativistic concept), and (b) to avoid the question of the spectators’ possible First Amendment interest in expression.