concurring in the result in part and dissenting in part:

This difficult case presents serious questions as to the professional duties of a lawyer in court, the First Amendment, the Sixth Amendment, and the breadth of a contempt order. I concur in part in the judgment, and write separately because of some difference in my perspective and analysis from that of my two brothers.

The Order Violated

To begin with, so far as I can see, Cyrus Zal was in violation only of the in limine word-ban of the municipal court. He did not present a necessity defense and after the municipal court ruled on January 19, 1991 that a mistake of fact defense was the equivalent of a necessity defense, he did not persist in presenting this defense. Eight times he used phrases that alluded to the abortion issue but were not on the list of forbidden words. I question whether these, indirect allusions to abortion fell within an order which, for criminal purposes, should be strictly construed. This language had not been made punishable. The municipal court chose to rule in terms of words. It could not extend its prohibition by analogy.

Zal did violate the word-ban thirteen times by using forbidden words. I focus on these thirteen instances where forbidden language was employed.

Zal’s Duty As Counsel

For any human being accused of an offense an explanation of why he or she acted is important. An act without purpose is a subhuman act. The first step in making a defense is to explain why the defendant did what he did. Our law takes a firm stand that a jury should not nullify the law out of sympathy for the motives of the defendants. See United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972). In a variety of cases, however, defense counsel will want to put matters to the jury that, strictly speaking, are irrelevant to the crime charged, but are essential to explaining the act done. In a variety of cases defense counsel have, therefore, put before the jury reasons and motives which could not, nor have been, a lawful defense. If a defendant is charged with first degree murder because he deliberately put to death another human being, it is not a defense in law that he did so to put a spouse or a child out of terrible suffering. Counsel, however, would not be performing as counsel if he or she did not proffer to the court the merciful motive that prompted the homicidal act.

Thus, for example, in two Florida cases counsel for the defense was permitted to examine the defendant and to bring out the defendant’s merciful motive even though mercy killing is not legal in Florida. Griffith v. Florida, 548 So.2d 244 (1989) (defendant killed his three-year old daughter after her head became caught in the footrest of a living room chair); Gilbert v. Florida, 487 So.2d 1185 (Fla.App. 4th Dist.1986) (defendant killed his wife who was suffering from osteoporosis and Alzheimer’s disease). Analogously, in California defense counsel brought out that the defendant had assisted an AIDS victim with suicide by strangulation because the defendant “was especially sensitive to the suffering associated with AIDS.” People v. Cleaves, 280 Cal.Rptr. 146 , 229 Cal.App.3d 367 (4th Dist.1991).

*934 As counsel for those accused of a crime, Zal had an obligation to them to present their defense and to present it not halfheartedly, not mechanically, but zealously. The duty of advocacy, the commands of our profession required no less. Zal, accordingly, had the right to bring out the reason for his clients’ actions. Even if the reason for the actions did not constitute a good defense under the applicable law, an explanation allowed the jury to see his clients not as monsters mindlessly invading the rights of other, but as human beings.

The forbidden words used by Zal attempted to explain his clients’ motivation and at the same time attempted to evoke the emotions that might be aroused if the jury were to perceive abortion as the killing of unborn children. But the clients of Zal were, as he concedes, not denied the opportunity to explain. Zal wanted to enlarge on their explanation. When Zal zealously enlarged upon this theme, he ran into the court’s order.

At that juncture Zal’s obligation to his clients had to yield to his obligation to the court. Fundamental as service to a client is, that service can never subvert a lawyer’s obligation to the court. Without a court, the lawyer is nothing. With the court, the lawyer is a cooperating part of the system our society has adopted as the best way of assuring justice to everyone.

If the municipal court had refused to allow Zal’s clients to explain themselves at all, we would confront a different case. In fact, the municipal court did allow each defendant one explanation of the action taken. Since the court struck that balance, it was not for Zal to seek a different balance of his own. Fidelity to law meant that he must obey. But that duty in California was, as will be shown below, conditional. The duty to obey existed only if the order was constitutional. I turn to a consideration of the order’s constitutionality-

The Constitutional Rights At Issue

The Clients’ Right To Trial By Jury. As counsel for the defendants, Zal had the right to assert his clients’ right to a trial by jury. Was this right violated by the in limine ban of certain words?

The use of the in limine order in criminal trials was infrequent until the 1960’s. See Colbert, “The Motion in Limine in Politically Sensitive Cases: Silencing the Defendant at Trial”, 39 Stan.L.Rev. 1271 at 1280 (1987). As the in limine motion became more popular with prosecutors, courts have found on occasion that exclusion of an entire defense was an invasion of the jury’s province, e.g., United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984). But the in limine motion was accepted in trials where the defense of necessity was found irrelevant. In such cases, the defendants sought in vain to introduce a political issue into their trial. The courts did not allow them to turn the trial into a political demonstration. United States v. Dorrell, 758 F.2d 427, 430 (9th Cir.1985) (necessity defense for anti-missile demonstration excluded); United States v. Seward, 687 F.2d 1270, 1276 (10th Cir.1982), cert. denied, 459 U.S. 1147 , 103 S.Ct. 789 , 74 L.Ed.2d 995 (1983) (necessity defense for antinuclear demonstration excluded).

A critic of these cases has argued that granting the prosecutor’s in limine motion in politically sensitive cases “suppresses evidence concerning governmental policy that is essential to the cultivation of an informed citizen.” Colbert, “The Motion In Limine” at 1326. The criticism is not without force, but of course other forums exist in which such information can be presented. The precedents now stand in such a way that a court of this circuit cannot conclude that a right to trial by jury is denied by the grant of such a motion.

Zal’s Own Right To Free Speech. Could Zal exercise during trial a First Amendment right that was independent of' his clients’ First Amendment right to free speech? Judge Trott answers this question with a sweeping dictum, No. But we have already held that “attorneys and other trial participants do not lose their constitutional rights at the courthouse door.” Levine v. U.S. District Ct. for the C. Dist. of Cal., 764 F.2d 590, 595 (9th Cir.1985). It would be ironic if the Constitution failed to pro *935 tect its professional defenders — the lawyers — in the very forum dedicated to the Constitution’s doctrine. But when Zal used the forbidden words to ask the question of witnesses, he was unquestionably functioning on his clients’ behalf. He was not exercising his own First Amendment right. His speech was used for his clients. It is fair to measure his rights by theirs.

Zal’s Clients’ Right to Free Speech. The principal Supreme Court precedent dealing with speech by an advocate during a criminal trial is Sacher v. United States, 343 U.S. 1 , 72 S.Ct. 451 , 96 L.Ed. 717 (1952), a case where the conduct of counsel was obstructive to the point of being an attempt to bring the trial to a halt. The lawyers said and did whatever “could contribute to make impossible an orderly and speedy discharge of the case.” Id. at 3-4, 72 S.Ct. at 452-53 .

In contrast to this censurable speech and conduct, a pro se defendant referred to himself as a political prisoner and the presiding judge as a M— F-. The Supreme Court reversed this litigant’s conviction of contempt, saying, “ ‘The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.’ ” In re Little, 404 U.S. 553 , 92 S.Ct. 659 , 30 L.Ed.2d 708 (1972), quoting Craig v. Harney, 331 U.S. 367, 376 , 67 S.Ct. 1249, 1255 , 91 L.Ed. 1546 (1947). The test of imminent imperilling of the administration of justice was applied in Eaton v. City of Tulsa, 415 U.S. 697, 698 , 94 S.Ct. 1228, 1229 , 39 L.Ed.2d 693 (1974), which reversed the petitioner’s contempt citation for calling his alleged assailant “a chicken shit” during cross-examination.

These holdings provide broad latitude for the use of language during a trial. They protect abusive and even obscene language in no way connected to the substance of a litigant’s case. A fortiori, they indicate that the First Amendment protects vigorous speech closely connected with the case being litigated.

The majority, however, set as the standard for Zal’s First Amendment rights in court the recent teaching of Gentile v. State Bar of Nevada, - U.S. -, 111 S.Ct. 2720 , 115 L.Ed.2d 888 (1991). In doing so, the majority necessarily relies on dicta, for Gentile concerned out-of-court statements by an attorney, not advocacy in a trial. Nonetheless, dicta of the Supreme Court have a weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold. We should not blandly shrug them off because they were not a holding. The Court’s dicta the majority quotes are these:

The Court then cited Sacher as precedent.

The dicta do not address a judicial system where it is perfectly lawful for an attorney to ignore an order of the court if the attorney believes it unconstitutional and can successfully show that it is. Sacher itself dealt with appropriate conduct for lawyers in a federal court. In that forum, “if the ruling is adverse, it is not counsel’s right to resist it,” Sacher, 343 U.S. at 9 , 72 S.Ct. at 455 . California has a different judicial system. Under California law, a contempt citation is void if it is based on an unconstitutional court order. In re Berry, 68 Cal.2d 137 , 65 Cal.Rptr. 273, 280 , 436 P.2d 273, 280 (1968) (an unconstitutional order “is issued in excess of jurisdiction and cannot sustain a contempt judgment based upon its violation”); In re Misener, 38 Cal.3d 543, 558 , 213 Cal.Rptr. 569 , 698 P.2d 637 (1985) (“an order of contempt cannot stand if the underlying order is invalid.”); In re Blaze, 271 Cal.App.2d 210 , 76 Cal.Rptr. 551 (1969). Under California procedure, if the attorney is willing to take the risk, he can ignore the void order and be vindicated. See Glen v. Hongisto, 438 F.Supp. 10 (N.D.Cal.1977). In such a system, the dicta of Gentile are not *936 a complete guide to the attorney’s right to free speech.

Every governmental regulation of speech must be ‘‘justified without reference to the content of the regulated speech.” Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 , 104 S.Ct. 3065, 3069 , 82 L.Ed.2d 221 (1984) (emphasis original). The justification for prohibiting outbursts in court by jurors, witnesses, or spectators is obvious: an outburst would disrupt the trial. The regulation of lawyers’ speech presents a problem that requires much finer analysis when the intent of the lawyer speaking is to serve the client who is on trial. The decorum of the court and the expeditious conduct of the trial justify such restrictions on speech as prohibition of the lawyer insulting the court or delaying the trial or speaking without moderation or speaking irrelevantly. See Sacher, 343 U.S. at 9 , 72 S.Ct. at 455 . In the instant case, the municipal court viewed the business where the trespass occurred as irrelevant and reference to it as inflammatory. That business was not irrelevant to the defendants, but their explanation of their motives was permitted. Repeated reference to the business of the abortion clinic went beyond explanation in an effort to enlist the jury’s sympathy in the defendants’ cause. A different trial court might have judged differently. It was within the discretion of the court to prevent what it thought to be unnecessary recurrence to this theme.

Concluding that the municipal court did not violate the First Amendment rights of Zal’s clients, I conclude only that it was within the power of the municipal court to limit the trial to trespass with an explanation of the motive for the trespass. The court did not have to permit repeated introduction of abortion into the trial. Repeated, the issue was irrelevant. The court’s order was, therefore, constitutional.

Under California law Cyrus Zal did not act unprofessionally in resisting the order: he had serious reasons for challenging it as overbroad, and the court’s holding of him of contempt because of the use of non-banned words went beyond its order. It was professionally responsible for him to use the channel provided by California Law to disobey and contest the constitutionality of what the municipal court had commanded. But, on balance, his challenge cannot be fully sustained and his petition for habe-as corpus cannot be fully granted. I concur in the result as to the thirteen convictions where Zal violated the trial court’s word-ban. I dissent as to the other convictions.