(dissenting) :
I must respectfully dissent.
In its arrival at the discharge of the defendants in this case, the majority flies in the face of precedent, undermines statutory law required for the administration of a voluntary tax system, *661and in its reversal of the contempt charges, impairs the administration of justice.
Although the reversal of the tax conviction is thinly veiled in the guise of an improper definition of “false or fraudulent,” it is in fact nothing more nor less than a ruling that a Vietnam War protester may not be required to be punished for a willful refusal to pay withholding taxes on account of a political belief. The real extent of the ruling is revealed by the dismissal of the indictment, rather than ordering a new trial under proper instructions, because says the majority, “A claim of ‘3 billion,’ on the other hand, could deceive no one. It is purely symbolic, the attached letter aside.”
The statute of which Lyle Snider was convicted, 26 U.S.C. § 7205, creates merely a misdemeanor, and'straining to give it other than its literal meaning in this case is doing a distinct disservice to the purpose for which the statute was enacted: to enforce the requirement of payment of withholding taxes in the United States. See United States v. Bishop, 412 U.S. 346, 359, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973).
As has been noted from time to time by the courts and as a matter of general knowledge, our system of collecting revenue is largely voluntary, and a statute making the willful refusal to abide by the voluntary collection system a misdemeanor certainly is within the power of Congress. As Bishop notes, § 7205 is merely one of a series of statutes providing penalties suitable to the varying degrees of delinquency under the income tax laws, p. 359, of 412 U.S., 93 S.Ct. 2008. The suggestion of the majority that the taxing system of the United States is not voluntary by its taking into account in its reasoning the power of the IRS to treat Snider’s claim of exemption as “constituting no information,” and its suggestion that adequate civil remedies were available for the collection of the tax, flies in the face of the words of Mr. Chief Justice Warren, in Flora v. United States, 362 U.S. 145, 176, 80 S.Ct. 630, 647, 4 L.Ed.2d 623 (1960): “Our system of taxation is based upon voluntary assessment and payment, not upon distraint.”
The statement in the opinion of the majority that the case was tried on the theory that “the government need only prove that Snider’s claim was untrue and was relieved of any obligation to show that the statement was deceptive or that it was made with an intention to deceive,” is refuted by the record, for the district judge, I contend properly, instructed the jury:
“A statement, including a statement in a claim or document, is ‘false’ if it was untrue when made, and was then known to be untrue by the person making it, or causing it to be made. “A statement, or claim, or document is ‘fraudulent’ if it was falsely made, or caused to be made, with the intent to deceive.”
The first place to go for the construction of a statute would seem to be to the statute itself. “ . . . [T]he other omissions which the statute denounces in the same sentence . . . aid in ascertaining the meaning as respects the offense here charged.” United States v. Murdock, 290 U.S. 389, 395, 54 S.Ct. 223, 226, 78 L.Ed. 381 (1933). 26 U.S.C. § 7205 provides, in the same sentence, following the clause concerning the supplying of false or fraudulent information: “or who willfully fails to supply information thereunder which would require an increase in the tax to be withheld.”
This last quoted clause of the statute, which has been given no weight by the majority in its opinion, itself states the proper construction.
The Ninth Circuit, in United States v. Smith, 487 F.2d 329, 330 (1973), a case on facts which are indistinguishable from those here, has articulated the proper rule to apply in this case which is consistent with that part of § 7205 just quoted above:
“In a misdemeanor prosecution, however, the government need not prove *662fraud, loss of revenue, or reliance by the government. The offense is made out when a person required by law to complete and file a W-4 intentionally uses the form to supply false information. [Citation omitted] “Our system of self-assessment and concurrent payment of taxes as income is earned cannot survive if every taxpayer is permitted to formulate his own rules. Misdemeanor penalties were provided by Congress with the knowledge that for certain types of forbidden behavior, even though criminal conduct is not present, a mild deterrent and the certainty of punishment are vital to the system. The defendants are free to express their political discontent in other ways. When they elected to defy the tax laws, they assumed the burden of the penalties provided by those laws.”
In arriving at the same result, the Third Circuit, in United States v. Malinowski, 472 F.2d 850, 857 (1973), specifically rejected the symbolic speech argument adopted by the majority here:
“Thus posited, appellant’s First Amendment argument is but a suggestion that a member of society can be absolved of the responsibility for obeying a given law of the community, state, or nation if he can prove a sincere, abiding, and good faith objection to the direct or indirect object of that law. Such a position represents a feeble effort to emasculate basic principles of civil disobedience, and, simply stated, is invalid. Here, the actor wants the best of both worlds; to disobey, yet to be absolved of punishment for disobedience.”
Indeed, this circuit, in United States v. Moylan, 417 F.2d 1002, 1008 (1969), in an opinion by Judge Sobeloff, has likewise rejected the proposition that moral disapproval of a policy of the United States is legal justification for a breach of a statute:
“Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey the law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.”
The dismissal of the charge instead of reversing .for a new trial indicates beyond doubt that the majority has rejected the Moylan reasoning and established the precedent that political beliefs furnish sufficient legal justification not only for committing crime but also for not paying taxes. To neither of these propositions may I concur.
Although thousands of perfectly well intentioned persons doubtless believe with all sincerity that the Second Amendment’s protection of the right to bear arms is violated by the Gun Law, e. g., 18 U.S.C. Appendix § 1201 et seq., such a contention would be frivolous as a factual, as contrasted to a legal, defense to a charge of its violation, and the defense here that the defendant did not have to comply with the Internal Revenue statutes is no less lacking in merit. A detailing of other examples which come to mind would add nothing to the thought, and it will suffice to say that while a jury has the right to disregard the law and discharge a defendant, a court may not. Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343 (1895). Is the law to say that because of a firmly held good faith belief about a political question any person is to be excused as a matter of law of a violation of statute? I think not.
The majority, then, as opposed to the jury, gives no credence to Snider’s own admission on the witness stand as to what he was doing:
“Again I didn’t feel, nor did my wife, that we could say that we were doing *663all we could to maintain a consistent witness for peace and opposition to war if we did not file — if we continued to pay our taxes. In other words, we either had to say, ‘Well, no, I’m not doing all I could,’ or we had to say, ‘ “No, I can’t pay my taxes’.”
I submit the majority’s reversal of the contempt convictions of the Sniders also does not rest on either sound precedent or policy.
The majority holds that a failure to stand in the courtroom after a direction by the bailiff, the marshal, and by the presiding judge may not subject the person failing to stand to contempt of court for it is “not misbehavior within the meaning of 18 U.S.C. § 401 and does not constitute criminal contempt of the court.” The majority reasons “The rising requirement seems to us not essential to the functioning of the court; as such, the failure to rise does not constitute a material obstruction. If the failure to rise distracts others, provokes a reaction on their part, or even causes ‘a failure to become silent or focus attention on the business before the court’ . we think the fault may better be resolved by compelling silence and attention rather than by coercing a gesture of respect.” I particularly note the majority states it does not hold that the failure of the Sniders to stand is excused on religious grounds as the defendants themselves claimed.
During the two-day trial, Snider failed to stand after being admonished by the bailiff, the marshal, or the court, any or all of them, on 16 separate occasions. His wife was similarly admonished on one occasion. The situation was quite different from that normally encountered in criminal trials. The trial attracted much local interest, and the interior of the courtroom was packed, while crowds of people milled about the courthouse, and Snider’s supporters outside passed out leaflets extolling his virtues to spectators and passersby. The finding of the majority that the Sniders did not make the trial a forum for the expression of their political or religious beliefs is contradicted in the record. The district court noted that a leaflet, entitled “Snider’s War Tax Resistance Result of a Strong Faith in God,” had been taken from a member of another jury panel, and that Snider’s supporters had “clogged the corriders, sat down on the floors, sat around in a circle right outside the jury room and right outside the main entrances to this courtroom. . ” Snider, his wife, and seven spectators remained seated when the court took its initial recess on the first day of trial. Snider was then counseled as to the purpose of the rule and advised that it was a disruptive, distracting factor for him to disobey the order of the bailiff and the subsequent order of the court to stand. Snider was told that he could at anytime purge himself of the contempt, but he chose not to.
In this setting, at the conclusion of the trial, the district judge heard the contempt charges against Mr. and Mrs. Snider and summarized his findings as follows:
“The transcript which will be attached hereto and made a part hereof reflects that the Court warned the defendant, Lyle B. Snider, that his actions constituted direct contempt, and initially advised the defendant that it was a disruptive, distracting factor for the defendant to disobey the order of the bailiff and the subsequent order of the Court to stand. Also, at the close of the first day of the trial, the Court admonished the defendant that each contemptuous act was a separate offense, and also that it was a continuing offense, and that the defendant could at any time purge himself of the contempt.
“The Court finds as a fact that the conduct of Lyle B. Snider heretofore set forth was disrespectful and contemptuous to the Court, and was calculated to disrupt the order and decorum of the Court. Forcing the extra burden on the Court of interrupting the trial to repeatedly admonish and warn the defendant about his disruptive and distracting behavior served to *664obstruct the administration of justice while the Court was in actual session. The Court, therefore, finds that such conduct constitutes criminal contempt committed in the actual presence of the Court.
* * * * -X- -X-“Attached hereto and made a part of this order will be the transcript of the pertinent parts of the proceedings, reflecting the imposition of the extra burden on the Court of explaining the traditions of the Court and personally ordering her compliance with the rules of the Court.
“The Court finds as a fact that the conduct of Sue T. Snider heretofore set forth was disrespectful and contemptuous to the Court, and was calculated to disrupt the order and decorum of the Court. By her actions, which necessitated explanation of, and personal requests by the Court for compliance with, the rules of the Court, Mrs. Snider served to obstruct the administration of justice while the Court was in actual session. The Court therefore finds that such conduct constitutes criminal contempt committed in the actual presence of the Court.”
Yet, the majority has ignored these findings and has declined to say that the district court abused its discretion, but, instead, holds that discretion to punish the Sniders’ conduct never did exist in the first instance, apparently because it disagrees with the findings of fact of the district judge that the behavior of the Sniders was disrupting and distracting and obstructed the administration of justice.
I am in disagreement with the majority as it holds that the custom from time beyond memory of rising upon the opening of each session of the court may not be punished by contempt, and do not agree with the dictum that such conduct may be excused on the ground either of symbolic speech or of religious preference. Such a ruling simply adds another crack in Mr. Jefferson’s wall. “Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State’.” Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947). I am of opinion the Sniders had no more business regulating affairs in the courthouse than the judge would have had regulating affairs in the meeting house.
Directing the dismissal of the contempt charge places this circuit in conflict on the merits with two others. See In re Chase, 468 F.2d 128 (7th Cir. 1972); United States v. Malone, 412 F. 2d 848 (7th Cir. 1969); and Comstock v. United States, 419 F.2d 1128 (9th Cir. 1969). The opinion is also in conflict with Chase as to its procedural dictum as it is with Sacher, supra. Each of those cases involved summary contempt proceedings under FRCrP 42 where sentencing on the contempt charge was delayed until after the immediate proceedings, just as we find it here, and I disagree with the dictum of the majority that full notice and hearing was required. The conduct of the Sniders took place in the presence of the court and jury during the actual trial, and the implied requirement of the majority that the judge must either punish the offenders on the spot, and perhaps declare a mistrial, see Sacher, p. 10 of 343 U.S., 72 S.Ct. 451, or forfeit his power to summarily punish for contempt, I conceive to be an impermissible hamstringing of the inherent power of any court to maintain orderly proceedings.1 Jus*665tice is badly served by encouraging a flagrant and deliberate disregard of the lawful order of a judge in his _ own courtroom. Each person, whether he be litigant, lawyer or spectator, so long as he is in a courtroom, may be required to yield the expression of so much of his beliefs as not to interfere with the administration of justice. It is not possible in this land of ordered liberty for all of the thousand beliefs to be expressed on each occasion. The expression by word or deed of the private convictions of the Sniders, although they may be deeply held, should yield, during the trial, to the imperative need of the community in having an established forum in which controversies between man and man and citizen and sovereign may be decided in a calm, detached, neutral atmosphere.
The district judge to his everlasting credit was a model of decorum, dignity, and propriety throughout what could only have been a most unsettling experience. He endured the repeated disregard of his orders with the patience of Job. I can find no reason in law, fact, or policy for reversing the judgments of contempt.
I may not, as my brothers do, cast aside countless generations of tradition and establish the rule in this circuit that the opening of court need not be accompanied by the rising of those in attendance. “Everyone rise,” of course, is now removed from the lexicon of the bailiff, for no order of any court should be made unless it is to be obeyed. Such could only lead to a further degradation of the courts.
I find one small solace in the opinion. Since it is not based upon federal constitutional grounds, it need have no effect upon the various States in the Circuit.
It follows that I would affirm the convictions, both as to the tax and contempt charges.
ORDER
CRAVEN, Circuit Judge.The court having been polled on the suggestion of one member for rehearing en bane and a majority of the active members voting against it, the suggestion fails. Judge Russell and Judge Field join Judge Widener in voting for rehearing en bane for the reasons stated in Judge Widener’s dissenting opinion and for the reasons advanced by Judge Field in the attached separate statement.
. “We hold that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial *665require that he defer judgment until its completion he may do so without extinguishing his power.” Sacher v. United States, 343 U.S. 1, 11, 72 S.Ct. 451, 456, 96 L.Bd. 717 (1952).