(dissenting).
In my opinion, the district court sought to exercise a contempt power which Congress has withdrawn from the judiciary if, indeed, it ever existed.
I think the district court correctly described the real reason why courts generally command or request those present to stand when a session commences or concludes. Rising is a traditional demonstration of respect “for the courts which are a part of our whole system of government within this country.” I share the district judge’s respect for that tradition; like so many facets of our manners, it serves a valid purpose in linking our past to our future. But if we recognize that tradition for what it *137is, we must also acknowledge that the sovereign’s power to require its free citizens to perform symbolic acts of respect for authority is not unlimited.1
This case does not raise the question whether any “rising requirement” at all is justified. For purposes of analysis, I assume that the requirement as applied to spectators, counsel, and court personnel is valid — either because the ceremonial act serves the function of marking the beginning and ending of sessions and focusing attention on what is about to transpire2 or, more logically in my view, because the tradition emphasizes the solemnity and majesty of the judicial process and thus increases the probability that witnesses will speak the truth and advocacy will be rational and not just emotional. The issue here is not whether these considerations adequately support a general command to rise; the issue is whether the defendant in a criminal trial must heed such a command.
It does not follow, as the district court assumed, that if any individual were permitted to disobey the command to rise, a crack would form in the judicial edifice which would ultimately cause the entire structure to crumble.3 The edifice rests on a stronger foundation than its ceremonies; the real respect of the citizenry for the judiciary is earned, not commanded. But even if individual exceptions to the general rising requirement were normally unacceptable,4 countervailing considerations of more fundamental importance must be considered when the command is directed at an individual on trial for his liberty.
Insofar as the rising custom serves the purpose of marking the beginning or the end of a session, or of reminding those present to be quiet and to pay attention, it matters not one whit whether the defendant also rises. He will certainly know that the proceedings are about to resume and, if ignored, his posture will not prevent that message from *138reaching those who are on their feet. The real question is whether his failure to perform the traditional symbolic gesture of respect for the court is such a distraction that the orderly conduct of the proceedings may be materially impaired. Unless the defendant’s action— or as in this case, his inaction- — constitutes a material “obstruction to the performance of judicial duty,” it is not punishable as criminal contempt.5 The question, then, is whether a defendant’s refusal to rise constitutes such an obstruction.
Two undesirable consequences may flow from a defendant’s apparent defiance of authority manifested by remaining seated while others stand: (1) the jury’s attitude toward the defendant may be prejudiced, and (2) the judge’s sensibilities may be offended. Neither of these consequences can be fairly characterized as a material “obstruction to the performance of official duty.”
The prejudice to the accused is unfortunate, but it is of his own making. The probability — perhaps inevitability —of that consequence eliminates the need for further punishment as a deterrent to repetition.6 Regardless of its impact on the minds of the jurors, a refusal to stand will not impair their ability to see or hear the proceedings. The functioning of the judicial process is not affected.
The impact on the sensibilities of the judge is somewhat different. He must do more than observe; he must preside effectively and be prepared to rule promptly and impartially on a variety of questions that arise as the trial progresses. An affront to the judge may indirectly affect the entire proceeding. Nevertheless, the Supreme Court has repeatedly cautioned judges to “be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” In re Little, 404 U.S. 553, 555, 92 S.Ct. 659, 660, 30 L.Ed.2d 708; Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 2 L.Ed.2d 589; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11.7 The relevant inquiry is not whether “a technical contempt at common law” has occurred, but rather, since “a judge of *139the United States is expected to be a man of ordinary firmness of character,” whether it tended “to prevent his performing his sworn duty.” 8 In this case the record plainly demonstrates that the effective and impartial performance of the trial judge’s sworn duty was not impaired in the slightest. The contention that an obstruction to the administration of justice resulted rests on a wholly different predicate.
The “obstruction” consisted of nothing more than the colloquies which ensued when the court unsuccessfully sought to persuade the defendant to rise. But that obstruction was the consequence — as I view the issue — of the judge’s erroneous interpretation of the law, rather than of the disrespectful conduct itself. As I read the applicable statute, and the opinions construing it, it is the misbehavior itself — rather than the judge’s attempts to punish or prevent it — that must obstruct the proceedings.9 Congress has provided:
“A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
“(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; . . . .” 18 U.S.C. § 401. (Emphasis added)
Even though federal judges once had broader contempt powers than now authorized by Congress, it is well settled that those powers may properly be, and have been, limited by statute. Ex parte Robinson, 86 U.S. 505, 510-511, 19 Wall. 505, 22 L.Ed. 205; Nye v. United States, 313 U.S. 33, 47-48, 53, 61 S.Ct. 810, 85 L.Ed. 1172. Those powers were first narrowed by Act of Congress in 1831, 4 Stat. 487, and again in 1948, 62 Stat. 701. Even prior to those statutory limitations, however, the contempt power had been described as, “perhaps, nearest akin to despotic power of any power existing under our form of government.” State ex rel. Attorney General v. Circuit Court, 97 Wis. 1, 8, 72 N.W. 193, 194 (1897), and the Supreme Court, quoting from its early opinion in Anderson v. Dunn, 19 U.S. 204, 6 Wheat. 204, 5 L.Ed. 242 (1821), has “marked the limits of contempt authority in general as being ‘the least possible power adequate to the end proposed.’ Id. at 231. And see In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30.” In re Oliver, 333 U.S. 257, 274, 68 S.Ct. 499, 508, 92 L.Ed. 682. Construing the statute in its present form, the Supreme Court stated that “Congress has limited the summary contempt power vested in courts to the least possible power adequate to prevent actual obstruction of justice.” In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 1292, 8 L.Ed.2d 434. Unquestionably, judges must strictly construe their power to punish misbehavior which obstructs the administration of justice.
If this power is strictly construed, I have no doubt that a defendant in a criminal trial may refuse to participate in the rising ceremony. He is the only *140person in the courtroom who is not present as a matter of choice. It is one thing to require those who have elected to participate in, or to observe, the judicial process to conform to its manners as a condition of attendance. It is quite another to compel an unwilling participant to perform a symbolic gesture of respect.10 The court’s unquestioned power to command him to be present and to prevent misbehavior which will impair the orderly conduct of the trial does not, in my opinion, encompass any power to make the defendant stand when court convenes or adjourns.
My appraisal of the issue is unaffected by the defendant’s motivation for his singular conduct. If his misbehavior was contemptuous within the meaning of the statute, I agree that it could not be excused by a religious or other conscientious motivation. Conversely, although I share the trial judge’s appraisal of the reasons for “the rising requirement,” he plainly exceeded his powers by insisting not merely that defendant must rise but also that he must do so with a particular state of mind.11 Valid rules of conduct must be obeyed. But a citizen’s respect is his to give or to withhold according to the dictates of his own conscience. Since the defendant was not present in court by choice, I do not believe he could legitimately be forced to profess a respect he did not feel.
. It is also unaffected by a judge’s evaluation of the desirability of the ritual. As the Supreme Court reminded us in the compulsory flag salute case:
“Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 634, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628.
. See United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969).
. The district judge stated:
“If we allow one little crack to come within that edifice, ultimately it can topple, and as far as I am concerned, I am going to do everything I can to protect that for the benefit and the protection of all of the people of this great country of ours, . ” Tr. 486.
Consider, however, the contrary expression by the Supreme Court, albeit in a different context:
“Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-642, 63 S.Ct. 1178, 1187.
. The judicial process routinely copes with individual deviations from normal practice. At arraignment, the mute defendant is treated as though he had spoken; at trial, the witness who refuses to swear may affirm. Even with respect to the rising requirement, the court agrees that it would be a “logical absurdity” to force every spectator in the back row to stand. See majority opinion at page 133.
. “An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest.” Ex parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 339, 63 L.Ed. 656.
The obstruction must, of course, be “material.” United States v. Seale, 461 F.2d 345, 369 (7th Cir. 1972).
. Presumably, as was true in this case, counsel will advise the defendant of the reasons why his interests will be served by standing; the manifest wisdom, of that advice makes it unlikely that the issue presented to us will arise very often.
. As we stated in United States v. Seale, 461 F.2d 345, 369 n. 45 (7th Cir. 1972):
“In Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11, . . the Supreme Court rejected the notion that protection of the judge’s personal dignity was a permissible exercise of the contempt power. Four years later in Brown v. United States, 356 U.S. 148, 153, 78 S.Ct. 622, 2 L.Ed.2d 589, . , the Court cautioned trial judges ‘against confusing offenses to their sensibilities with obstruction to the administration of justice.’ See also In re Michael, [326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30]; Ex parte Hudgings, [249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656]; and In re McConnell, [370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434], Astutely, Professor Dobbs observed in his article on contempt — Dobbs, [Contempt of Court: A Survey, 56 Corn. L.Rev. 183] at 208:
“ ‘Where nothing more than disrespect or discourtesy is involved, however, the dangers of abuse of contempt power may outweigh the benefits of using that power. The readiness of some judges to find contempt in perfectly respectful conduct, and readiness of others to induce it by behavior on the bench, suggest these dangers of abuse. Finally, it should be emphasized that mere personal insult or irritating conduct should not readily be accepted as contempt. The nature of the trial as an honest human effort to reach a just result must be *139preserved and enhanced, and no person by his conduct should create an atmosphere that makes this impossible. But personal discourtesy or insult is on an altogether more trivial plane, and a certain amount of that should be tolerated when it falls short of interfering with the nature of the trial.’ ”
. “But a judge of the United States is expected to be a man of ordinary firmness of character, and I find it impossible to believe that such a judge could have found in anything that was printed even a tendency to prevent his performing his sworn duty. I am not considering whether there was a technical contempt at common law but whether what was done falls within the words of an act intended and admitted to limit the power of the courts.” Toledo Newspaper Co. v. United States, 247 U.S. 402 at 424, 38 S.Ct. 560 at 565, 62 L.Ed. 1186 (Mr. Justice Holmes dissenting).
. Unlike the contemptuous conduct reviewed in Illinois v. Allen, for example, there was no risk that the defendant’s refusal to rise might destroy any “semblance of ordei in the court” or “make *140a shambles of the criminal judicial process.” See United States ex rel. Allen v. Illinois, 413 F.2d 232, 235 (7th Cir. 1969) (Circuit Judge Hastings dissenting), reversed, Allen v. Illinois, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353. Nor is this a case in which the defendant “went limp and as the court addressed him lay prostrate on the floor.” Comstock v. United States, 419 F.2d 1128, 1131 (9th Cir. 1969).
. The point may be illustrated by suggesting that an English court might disbar a bareheaded barrister, but presumably could not imprison a defendant who refused to wear a powdered wig. On the other hand, this example may merely invite close scrutiny of the adequacy of the justification for a ceremony which may be a composite of ritual and function. Does the fact that a practice “can reasonably be thought to contribute to the functioning of the court” really provide an adequate justification for a rule enforceable by summary imprisonment? See United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7th Cir. 1969). The precise issue presented here does not require a reexamination of the Malone holding, but the fact that a completely consistent application of Malone would admittedly lead to a “logical absurdity” raises more doubts in my mind about the Malone rule itself than about its application to a defendant or an unobtrusive spectator.
. After the defendant expressed a willingness to stand to show his respect for the judge as a human being, the judge insisted that such conduct would be inadequate, stating, in part: “Now if you will agree to stand, not to me as an individual, but as to the courts, then we will have no problems.” See the colloquies quoted at pages 129-131 of Judge Cummings’ opinion. The defect in the judge’s analysis is explained by an excerpt from Mr. Justice Frankfurter’s dissent in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 655, 63 S.Ct. 1178, 1193, 87 L.Ed. 1628:
“Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws.