____________________

BENCH MEMORANDUM
____________________

MATTER—Direct Criminal Contempt; Profanity in Court

AUTHOR—Hon. William H. Burgess, III
DATE—May 23, 2018
____________________

Few things are as disruptive of the tranquility and orderliness of court proceedings as
profane outbursts featuring vulgar, indecent, coarse, irreverent, blasphemous, or obscene
language. Every profane utterance made in a courtroom is not, however, automatically
contemptuous, nor is profanity an essential ingredient to conviction for contemptuous statements.
Rather, challenged statements must be viewed in the context in which they are made and if it
appears that they are insulting to the judge or that they degrade the dignity of the court they may
be deemed contemptuous.1 The court should, however, take into consideration the contemptuous
conduct and all of the surrounding circumstances before imposing sentence.

Where, for example, a defendant undergoing sentencing responds to a statement made by

presiding judge with the comment that the statement is “a bunch of bull shit,” that defendant is
properly subject to being found in direct criminal contempt.2 Where, however, such a statement
is immediately followed by an apology, remorse, and explanation, greater leniency in sentencing
for the contempt is in order.3

Mumbled profanities in a language other than English may form the basis for direct
criminal contempt, even if the foreign language is not literally understood by the court.4

An uninterrupted stream of profanities can be a proper basis for a finding of direct

criminal contempt.5 A defendant may be lawfully charged and convicted of multiple counts of
contempt for multiple use of profanity during the course of a single proceeding if the basis of
each contempt is sufficiently distinct, e.g., a defendant’s expression of obscenity directed at the
court from at or near the doorway of the courtroom, and the act of repeating the obscenity when

1
Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976), decision approved, 346 So. 2d 68 (Fla. 1977).

2
Martinez v. State, 339 So. 2d 1133 (Fla. 2d DCA 1976), decision approved, 346 So. 2d 68 (Fla. 1977).

3
Twine v. State, 188 So. 3d 44 (Fla. 3d DCA 2016) (contempt sentence of 180 days was lawful but excessive for defendant
who, after being denied pretrial relief responded by stating “This is a bunch of bullshit” but immediately apologized, showed remorse,
and explained the reasons for his outburst).

4
Michaels v. Loftus, 139 So. 3d 324 (Fla. 3d DCA 2014) (mumbled Romanian obscenities).

5
Swain v. State, 226 So. 3d 250 (Fla. 4th DCA 2017).
the defendant is brought into the courtroom to answer for the first contempt.6 A single outburst,
interrupted only by the court injecting itself long enough to inform the defendant that the
defendant has committed yet another act of contempt should, for this reason, be punished as a
single act of direct criminal contempt.7

A single word expletive heard by the judge is not sufficient, however, for a summary
finding of direct criminal contempt.8 An insult uttered under the breath and not heard by the
judge is not a basis for a finding of contempt.9 Loud profane statements made outside of the
courtroom do not constitute direct criminal contempt where the words are not directed at the
judge or the proceedings the judge is presiding over, and there is no evidence that the alleged
contemnor was aware of a judicial proceeding going on behind closed doors or that he or she
intended to disrupt any judicial proceeding.10

6
Williams v. State, 222 So. 3d 596 (Fla. 4th DCA 2017).

7
Butler v. State, 330 So. 2d 244 (Fla. 2d DCA 1976).

8
See, Woods v. State, 987 So. 2d 669 (Fla. 2d DCA 2007) (defendant’s spontaneous utterance of the single word “shit” in
apparent frustration while leaving a closed-circuit courtroom facility inside a county jail was rude and disrespectful but not necessarily
directed at the judge); Payne v. State, 486 So. 2d 74 (Fla. 4th DCA 1986) (trial court could not find defendant in direct criminal
contempt where court heard only one word expletive and not statements heard by two witnesses); Davila v. State, 100 So. 3d 262
(Fla. 3d DCA 2012) (defendant’s utterance of short profanity upon learning that his trial date was reset did not support finding of
direct criminal contempt where court did not hear the utterance, the proceedings were not interrupted, and the profanity did not hinder
the administration of justice).

9
Woodie v. Campbell, 960 So. 2d 877 (Fla. 1st DCA 2007) (court did not hear obscenity mumbled under defendant’s breath
and utterance did not interrupt or hinder the orderly functions of the court).

10
Bryant v. State, 851 So. 2d 823 (Fla. 2d DCA 2003).

Direct Criminal Contempt; Profanity in Court

2 Hon. William H. Burgess, III (March 23, 2018)