Note 956 — AMENDMENT 14 (continued 4)

Justice Douglas, with Justice Black concurring, dissented on the ground that even if "such elements of misbehavior as expression, manner of speaking, bearing, and attitude * * * [had] a contemptuous flavor. * * * freedom of speech should [not] be so readily sacrificed in a courtroom." Stressing that the trial judge penalized Fisher only for his forbidden comment and not for his behavior, and that it took a ruling of the Texas appellate court to settle the issue whether such comment was improper under Texas practice, Justice Douglas concluded that the record suggests only that "the judge picked a quarrel with this lawyer and used his high position to wreak vengeance." There having been no substantial obstruction of the trial, Justice Murphy believed that the trial judge's use of his power was inconsistent with due process; whereas Justice Rutledge, in dissenting, contended "there can be no due process in trial in the absence of calm judgment and action, untinged with anger, from the bench."—Ibid. 165-166, 167, 169.