dissenting.
The majority opinion interweaves two separate but related arguments to support its conclusion that McMilian was not guilty of contempt. The first strand of argument is that “[t]he contempt judgment must fail here for want of inherent contempt authori*854ty. * * * The bare fact of the communication and its content do not permit the inference that some interference threatened the administration of justice.” The second strand of the argument is that such interference as there was must be subjugated to “the rights of persons to freely and even intemperately express their minds.” ' I disagree with both of those arguments.
I.
Criminal contempt is primarily designed for the self-protection of the courts and to arm judges with a weapon with which to resist obstructions to justice. Such obstructions may occur in a multitude of ways. One variety is described by Dobbs, Contempt of Court, 56 Cornell L.Rev. 183, 190 (1971) as follows: “Another kind of obstruction involves conduct that prejudices the fairness and procedural safeguards of the judicial process; for example, intimidation of judges or jurors. Such conduct is not necessarily a physical disruption of the trial, but neither judge nor jury can decide according to conscience, law, and fact if their decisions can be threatened by the abuse of those who disagree. * * * There are, of course, many ways in which a judicial proceeding might be improperly influenced, and contempt may be used to punish such influences even though they fall far short of intimidation.”
As illustrating the foregoing statement, Dobbs cites City of Macon v. Massey, 214 Ga. 589, 106 S.E.2d 23 (1958), in which a father called the judge in an effort to discuss the son’s case which was pending before the judge. The judge declined to discuss the case and terminated the conversation by hanging up. Thereupon the father went to the judge’s office for the purpose of forcing the judge to apologize. The Georgia Supreme Court held that the father had been guilty of two contempts, “first in undertaking to force the judge to discuss his son’s cases over the telephone, contrary to the advice and insistence of the judge; and second, in going to the judge’s office for the purpose of forcing the judge, by physical force or violence, to apologize.” In amplification of that ruling, the court held:
“The time has not yet arrived in Georgia when a person dissatisfied with the results of a judicial proceeding may with impunity require the judge to discuss the matter with him by telephone, in his office, or elsewhere, and thereafter, as a result of the refusal of the judge to discuss the case in a manner satisfactory to the complaining party, challenge the judge to engage in a physical encounter or brawl.
“ ‘What law confers on a suiter the right to converse about his case with a judge out of court? * * * The office of judge would be intolerable to the holder, and degrading to the state, were the incumbent subjected by law to personal and private approach, questioning and harassment at the will of anxious and discontented suitors * * *. If the judge had to scramble with a mob of suitors or others to reach the bench every morning, and then could punish none of them for the indignity which they had offered the law and public authority, because he had not succeeded in formally opening the court for the day’s business before he was insulted, he soon would become powerless to administer justice.’ Baker v. State of Georgia, 82 Ga. 776, 781-782, 9 S.E. 743, 745, 4 L.R.A. 128. See also Swafford v. Berrong, 84 Ga. 65,10 S.E. 593; Plunkett v. Hamilton, 136 Ga. 72, 70 S.E. 781, 35 L.R.A., N.S., 583.”
A somewhat similar situation arose in Freedman v. State, 176 Md. 511, 6 A.2d 249 (1939). There a prospective character witness wrote a letter to the judge on behalf of the defendant about to be tried in a criminal proceeding. The author of the letter was found guilty of contempt and that finding was affirmed as follows: “It follows from what has been said that although a letter be neither abusive nor threatening, it may, when written to a Judge concerning a case pending before him be contemptuous if designed to influence him in the decision of the case.”
The principle of the foregoing cases applies to the present situation. McMilian *855called the court for the purpose of talking to Judge Gant before whom his son’s probation revocation was pending. On his first call, the bailiff explained that it would be improper for McMilian to do so and that the proper course for him to follow was to talk to his son’s lawyer who would in turn do whatever was necessary or appropriate. Not satisfied with that, McMilian persisted with still a second telephone call in which he endeavored once again to break through in order to engage in an ex parte conversation with the judge about the pending case. As held in the cases above cited, that action by McMilian in and of itself constituted contempt.
That, however, was not all. The telephone calls, already acts of contempt, were severely aggravated by McMilian terminating his second conversation with the bailiff with the following lewd obscenity: “Tell Judge Gant that all judges are full of shit, and tell Judge Gant to stick it up his fucking ass.” The judge and the court staff personnel are entitled to protection against such vile insults. Subjection to such affront is disruptive to mental state and the court’s necessary clerical routine. Equally important, being subjected to such insults and profanities is disruptive to self-respect and the respect to which the court should be held in the eyes of the public. It is for these reasons that numerous cases have held insults to the judge or court personnel constitute acts of contempt.
So in State v. Sax, 139 N.J. Super. 157, 353 A.2d 113 (1976) a driver who had been fined by a municipal court remitted the fine to the clerk accompanied by a letter which concluded as follows: “Thank you and fuck you.” The writer was held in criminal contempt, and that adjudication was affirmed on appeal.
Similarly, one who wrote to the judge of a municipal court stating that he would not appear on a traffic charge because he would not receive a fair trial and would be the victim of a shakedown was held to be guilty of contempt in State v. Gussman, 34 N.J. Super. 408, 112 A.2d 565 (1955).
So also in In re Jenkinson, 93 N.J.Eq. 545, 118 A. 240 (1922) a party wrote a letter to a court clerk saying: “I would have knocked your head off your shoulders, if you had been within reach at any time since I received this letter of yours; * * * don’t you ever write me in such style again, until you are more sure of your facts.” This communication was held to be a direct criminal contempt.
In the case In re R. W. Woolley, 74 Ky. (11 Bush) 95 (1875) it was held to be contempt for a lawyer to file a motion for rehearing containing offensive language directed toward the members of the court. The Kentucky Court in passing referred to the judiciary having “the power to preserve its independence and equality by protecting itself against insults and indignities. The right of self-preservation is an inherent right in the courts.”
And in Saunders v. State, 319 So.2d 118 (Fla.Dist.Ct.App.1975), a witness was found in contempt for refusing to testify. In the course of the colloquy between the judge and the witness out of the presence of the jury, the witness responded to the question of whether he intended to answer by saying, “Hell no. * * * I’m not answering a damn one of the questions.” After the trial court declared the witness to be in contempt and as the witness was leaving the courtroom, he called the judge a “Son-of-a-bitch.” The Florida Court of Appeals held that the witness was within his constitutional rights in refusing to answer interrogation, but that he was guilty of contempt by his use of profanity addressed to the court.
Somewhat similar is this case of In re Little, 404 U.S. 554, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972). In that case the defendant in a criminal case found himself under the necessity to handle his own defense and argue his case at the close of the evidence. In his summation the defendant stated that the court was biased and prejudiced and that the defendant was a political prisoner. The trial judge adjudged the defendant in contempt for those statements. After the contempt adjudication and as the defendant *856was being removed from the courtroom, he spoke out and called the judge “a mother fucker.” The Supreme Court held that the statements made in the summation could not be held to be contempt. With respect to the epitaph addressed to the trial judge as the prisoner was being led away, the Supreme Court majority opinion states: “This language in a courtroom is, of course, reprehensible and cannot be tolerated. But this was not relied upon by either the District Court or the Superior Court for the conviction and sentence and the State defends the conviction in this Court without any reference to it. We therefore also lay it aside for the purpose of our decision.” However, Chief Justice Burger and Justice Rehnquist in a concurring opinion made it clear that they considered the profanity to be contemptuous and the concurring opinion states that “The North Carolina court is, of course, free to promptly summon this petitioner before it and * * * issue process requiring him to show cause why he should not be held in contempt for the conduct and utterances following the contempt adjudication.”
See also Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925).
II.
The majority opinion lays its heaviest emphasis upon the principle of freedom of speech and the “clear and present danger” concept which has been developed in connection therewith. All of the cases cited by the majority opinion have to do with that concept and deal with the problem of the extent to which free speech can be curtailed in the interest of protecting orderly judicial administration. In each of those cases cited by the majority, the alleged contemner had made a real and substantial effort to discuss some issue of public concern. It was that discussion of ideas with which the court in each ease was concerned. So, for example, in Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962) the opinion states that certiorari had been granted to consider the scope of constitutional protection which should be given to persons when “publication of their thoughts and opinions is alleged to be in conflict with the fair administration of justice. . . . ” Similarly in Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947) the opinion quoting from Pennekamp says: “Freedom of discussion should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice.” All of these “clear and present danger” cases announce in common a balancing test under which the interest of free speech must be weighed against the interests of unimpeded operation of the court processes. This balancing test is explicitly stated in Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978), as follows:
“Properly applied, the [clear and present danger] test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression.”
In the present case, unlike the alleged contemners in the cases cited by the majority opinion, McMilian made no effort to discuss any issue of general public interest. Indeed, his utterance was not an attempted exercise of free speech at all — rather it was a naked insult in vulgar, gutter language with no pretence of any intellectual content. In the balancing process said by the United States Supreme Court to be required, there is simply nothing to be put in the scales here on the side of free speech for McMilian.
This very issue was thoroughly considered in State v. Gussman, supra, where the con-temner relied upon the same United States Supreme Court decisions as the majority does in this case. The New Jersey Court summed up the matter as follows:
“[W]e must inspect the public and individual interests involved in the argument. The Bridges, Pennekamp and Craig cases were concerned with a very different matter from what we have here. There the court was concerned with comment
*857by the public press, save that in the Bridges case there was also a threat of a strike, made by Bridges through a telegram to the person to whom he had the constitutional right to petition. There quite plainly the court was dealing with the great public interest in leaving truth to ‘the competition of the market.’ Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (Holmes, J., 1919). As Milton (Areopagitica 51, Hales ed. 1917) put it in his ringing words:
‘And though all the windes of doctrin were let loose to play upon the earth so Truth be in the field, we do injuriously by licencing and prohibiting to mis-doubt her strength. Let her and Falsehood grapple * * *.’
The rule is that all speech is to be protected, cf. Adams Theatre Co. v. Keenan, 12 N.J. 267, 277, 96 A.2d 519 (1953), save as some exception can justify itself. Here we have a public interest in maintaining a sufficient respect for the courts, at any event so that the very defendant served with a ticket may not, in place of an appearance on the return day, turn on the court and flout it to itself — and with gross accusations, insolence and, in a way, defiance. This is not a case that excites society’s interest in truth and individual liberties.”
See also, State v. Sax, supra, which rejects the identical free speech argument.
In my view, McMilian was properly adjudged in contempt of court, and he should be remanded to custody to serve the ten day sentence imposed by the trial court. I respectfully dissent from the majority opinion which holds to the contrary.