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HOWARD HUMAN & CIVIL RIGHTS LAW REVIEW © 2016 

Leave it at the Door: Attorney Freedom of Speech, Black Lives Matter, and the Courtroom

October 28, 2016

 

INTRODUCTION

 

        In June of this year, a Black attorney named Andrea Burton was held in contempt of court and subsequently jailed for refusing to remove her “Black Lives Matter” lapel pin in court.[1] The judge, Judge Milich, used Berner v. Delahanty as precedent for the sanction.[2]  A few months later, Erika Ballou, another Black attorney, was confronted while in court for wearing her “Black Lives Matter” pin.[3]  She agreed to remove her pin.[4]  The judge, Judge Herndon, said he would prohibit attorneys from wearing such items in his court room because “anything that would disrupt proceedings would not be allowed.”[5]  These two narratives raise a timely question: can judges legally and constitutionally ban attorneys from wearing Black Lives Matter paraphernalia in the courtroom?  This question implicates the First Amendment’s guarantee to freedom of speech and of expression within the context of an attorney’s conduct.  Are judges allowed to censor attorneys’ free expression?  Are judges allowed to express their own bias and political proclivities by banning Black Lives Matter paraphernalia in their courtrooms?

 

        In response to these cases, Eugene Volokh, a law professor at the University of California Los Angeles (UCLA) mused, “Imagine how controversial it would be if the judge said, ‘you can wear Black Lives Matter pins, but you can’t wear White Lives Matter or Police Lives Matter Pins.’”[6]  Volokh’s statement—albeit insensitive to and ignorant of the cultural reality from which the Black Lives Matter movement arose—does raise a legally significant question that points to the heart of the issue: can judges make content‑specific restrictions on an attorney’s expression in the courtroom?

 

        This article discusses what lies at the foundation of the shared experience of Burton and Ballou: the constitutionality of restricting freedom of expression in the courtroom.  The First Amendment clearly guarantees the freedom of speech and of expression to the people of the United States.[7]  In fact, numerous cases and philosophers have emphasized that this constitutional protection especially applies to political speech—the very foundation of this country depends on it![8]  What is less commonly known is that the First Amendment’s protections are not guaranteed in every situation.  Depending where, why, and how, this freedom can be, and is, restricted—especially in a court of law.  

 

        Part I discusses case law that outlines and illustrates judges’ ability to restrict speech and expression in the courtroom as well as limitations on that ability.  Part II examines what category of speech “Black Lives Matter” falls under for First Amendment purposes.  Part III examines the implications of banning Black Lives Matter paraphernalia with different types of restrictions.

 

I. THE AUTHORITY OF JUDGES TO LIMIT SPEECH IN THE COURTROOM

 

        The case Judge Milich used as precedent to sanction Burton, Berner v. Delahanty, is a 1997 case from the First Circuit.  In this case, Berner, an associate justice in the Maine Superior Court, was observing from the gallery of Judge Delahanty’s courtroom while wearing a pin that read “No on 1 – Maine Won’t Discriminate.”[9]  Berner was called to the bench and asked to remove his “political pen [sic]” while in the courtroom because, according to the Delahanty, the fact that “the courtroom is not a political forum” trumped Berner’s right to free speech.[10]  Although he removed the pin, Berner profusely objected and sought declaratory and injunctive relief, arguing that the ban was a violation of his First Amendment right.[11]  In applying the Cornelius standard[12], the Court affirmed the dismissal of the case on the basis that the ban was justified because: (1) the courtroom is not a public forum[13]; and (2) the ban was a reasonable way to accomplish the judicial interest in avoiding even the appearance of political partisanship.[14]

 

        There have been other cases that have addressed the issue of freedom of speech in the courtrooms.  They essentially hinge upon either one of two issues: (1) whether the speech influences the proceedings; or (2) whether the speech is political speech.  For ease, the first category of speech will be referred to as simply “influential speech.”  The pin in Berner clearly falls into the latter category of political speech, but what does influential speech look like?  This category of speech is best illustrated in Norris v. Risley.  In Norris, a rape conviction was reversed because the court found that the presence of a large number of people wearing “Women Against Rape” buttons in the audience during trial interfered with the defendant’s presumption of innocence.[15]  Courts have determined that mere disagreement with the content’s message itself is not a substantial enough reason for a ban.[16]  Rather, it is about the effect of that speech.  It must be determined whether the speech interferes with a court’s proceedings or whether it undermines the court’s legitimate interest in wanting to not appear to have a political bias.    
 

II. DEFINING "BLACK LIVES MATTER"

 

        In both Ballou’s and Burton’s cases, not enough information has been provided on who they were defending in court at the time of the bans.  The Black Lives Matter pins could reasonably be considered influential speech if the attorneys were wearing them while arguing cases specifically relevant to the Black Lives Matter movement (e.g., police brutality).  But because this information is not readily available, it cannot reasonably be said from the facts that their Black Lives Matter pins fall into the category of “influential speech.”  If the pins are not influential speech, what does this mean?  This would mean that, because the content of the speech has nothing to do with the cases at issue in the courtrooms, the judges could not legally ban the pins specifically because of what they said.  For instance, the judges could not place a ban only on Black Lives Matter pins while also allowing other pins—to borrow the example Volokh used—that read,  “white lives matter” or “blue lives matter.” 

 

        If the Black Lives Matter pins were influential speech, could it be lawfully banned with a content-specific restriction?  Likely, yes.  If either Burton or Ballou were—to use a very precise example—arguing a case for the conviction of a police officer who killed a Black person and while arguing this case, they were wearing the Black Lives Matter pin, the judge could likely ban any and all paraphernalia that contained “Black Lives Matter” because, much like in Norris, it would undermine the defendant’s right to a presumption of innocence.

 

        The Black Lives Matter pins more accurately fall within the category of political speech.  Even though it has been argued that Black Lives Matter is distinguishable from Berner because the movement is not in response to some pending regulation or ordinance,[17] Black Lives Matter is political speech because political speech is broadly defined as any speech that comments on government action.[18]  Although the phrase “Black Lives Matter” is not political in and of itself, the context in which it arose gives it its political quality.  The Black Lives Matter movement came about as a response to the acquittal of the man who shot and killed Trayvon Martin in 2013 and has grown steadily to illuminate countless other cases of police brutality since.[19]  Merely stating that our lives as Black people simply matter should not be a political statement.  But, unfortunately, it is.  “Black Lives Matter” is a response to and an indictment of the actions of the police.  Because it is in response to police action, it qualifies as commentary on government activity and therefore falls within the definition of political speech.

 

III. MODAL V. CONTENT-SPECIFIC RESTRICTIONS

 

        Volokh’s earlier question realized the hazards of judges making content‑specific restrictions and the court that heard Burton’s complaint exercised its caution by implementing a restriction that only concerned the timing and location of Burton’s expression.  W. Bradley Wendel best describes this type of restriction, which is known as a modal restriction:

 

Modal restrictions coordinate expressive interests with other competing, valid claims, rather than subordinating speech interests to the other values . . . Modal regulations are, by their very nature, directed toward the non-communicative aspect of expression, such as the forum in which it is delivered. Provided that alternative channels of communication are left open, the speaker’s message is not suppressed.[20]

 

           The court determined that the only purpose of this restriction was to prohibit the wearing of Black Lives Matter pins in the actual courtroom.  Burton is free to wear the pin in the courthouse.[21] 

       The court also made this modal restriction content‑neutral so that it not only prohibits Black Lives Matter pins in the courtroom, but it also prohibits police officers from wearing black tape over their badges in recognition of when another police officer dies.[22]  This restriction appears to be the most equitable solution because it does not actually inhibit Burton’s freedom speech.  It essentially just says “there is a specific time and place for this, and  arguing in court is not it.”  The extension of this restriction to police officers ensures that the court is not engaging in political partisanship. 

 

CONCLUSION

 

       Even though it looks like Burton and Ballou were targeted specifically because of the content of their pins, and Burton might have been given Judge Milich’s background,[23] their message and their voices are not being suppressed by this restriction.  In the case of Burton, the modal restriction effectively negates any bias of Milich in his initial ban.  Therefore, irrespective of the judges’ actual intent in banning the pins, with a modal restriction, the attorneys are free to express themselves by wearing the pins in the courthouse.  They just have to leave their pins at the courtroom door. 

 

 

 

 

 

 

Gaby Wilson is a 2L at Howard University School of Law. They graduated from the University of Alabama with a major in Telecommunication and Film and a minor in Art. Gaby is passionate about achieving justice and liberation for queer and trans individuals in this lifetime.

[1] Mercy Yang, Judge Jails Lawyer For Wearing ‘Black Lives Matter’ Pin. Now, Activists Are Pushing Back, HUFFINGTON POST: POL. (June 26, 2016), http://www.huffingtonpost.com/entry/andrea-burton-black-lives matter_us_5797754ae4b02d5d5ed2de54 [hereinafter Judge].

 

[2] Id.

 

[3] David Ferrara, Lawyers pack courtroom in support of ‘Black Lives Matter’ movement, L.V. REV. J. (Sept. 22, 2016), http://www.reviewjournal.com/news/las-vegas/lawyers-pack-courtroom-support-black-lives-matter-movement [hereinafter Lawyers].

 

[4] Id.

 

[5] Id.

 

[6] Ken Ritter, Vegas lawyer’s ‘Black Lives’ protest resembles Ohio case, ASSOCIATED PRESS NEWS (Sep. 22, 2016), https://apnews.com/bea4b50ee3614c46b1a2a1187ab15601/Vegas-lawyer%60s-%60Black-Lives%60-protest-may-follow-Ohio-example [hereinafter Vegas].

 

[7] U.S. Const. amend. I.

 

[8] The court in Garrison v. State of La. stated: “[S]peech concerning public affairs is more than self-expression; it is the essence of self-government” and that this freedom “embod[ies] our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’”  Garrison v. State of La., 379 U.S. 64, 74-75 (1964) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); see also Cohen v. Cal., 403 U.S. 15, 24 (1971) (stating that the right of free expression “is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.”).

 

[9] The slogan on Berner’s pin was in opposition of a “statewide referendum that Main voters were scheduled to consider during the November election.  Berner v. Delahanty, 129 F.3d 20, 22 (1st Cir. 1997).  The referendum had nothing to do with the case before Delahanty’s court.  Id

 

[10] Id.

 

[11] Id.

 

[12] The lower court determined that the standard established in Cornelius v. NAACP Legal Def. & Educ. Fund, was applicable.  Id. at 26.  This test discussed the various levels of scrutiny that apply to government restrictions in different types of locations including speech in both public and non-public forums.  Id.

 

[13]  See W. Bradley Wendel, Free Speech for Lawyers, 28 HASTINGS CONST. L.Q. 305, 442 (2001) (stating that “[b]ecause state-established forums like courtrooms and pleadings are not ordinarily available for private citizens’ expressive activities, the speech and conduct of lawyers in these arenas may be subject to reasonable, viewpoint-neutral government regulations.”).

 

[14] See Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 809 (1985) (finding that “avoiding the appearance of political favoritism is a valid justification for limiting speech in a nonpublic forum”).  But see Frankel v. Roberts, 165 A.D.2d 382, 382 (App. Div. 1991) (concluding that “Ready to Strike” buttons donned by attorneys in a nonjury courtroom, expressing a political message, “clearly presented no ‘serious and imminent threat to the administration of justice’” (quoting Craig v. Harney, 331 U.S. 367, 373 (1947))).

 

[15] Norris v. Risley, 918 F.2d 828 (9th Cir. 1990).

 

[16] See Cohen v. Cal., 403 U.S. 15 (holding that the State’s interests in dignity were not enough to charge Cohen with disturbing the peace for wearing a jacket in the courthouse emblazoned with the message: “Fuck the Draft”).

 

[17] Judge, supra note 1 (“This is just a movement . . . [t]his isn’t on the ballot anywhere. This is a movement. This is totally different.”); see also Vegas, supra note 6 (“I believe a courtroom is the proper place to make issues about criminal justice. This is not political speech.”).

 

[18] See Wells v. State, 848 N.E.2d 1133, 1148 (Ind. Ct. App. 2006) “Expressive activity is political if its point is to comment on government action, including criticizing the conduct of an official acting under color of law” (citing Whittington v. State, 669 N.E.2d 1363, 1370 (Ind. 1996)).

 

[19] Jessica Guynn, Meet the woman who coined #BlackLivesMatter, USA TODAY (Mar. 4, 2015), http://www.usatoday.com/story/tech/2015/03/04/alicia-garza-black-lives-matter/24341593/.

 

[20] Wendel, supra note 13, at 393; see also In re von Wiegen, 63 NY2d 163, 171 (1984) (“The State is permitted considerably more latitude in restricting the time, place and manner of speech than it is when it attempts to restrict content. Time, place and manner restriction are valid if reasonable and rationally related to legitimate State interests. Content or subject matter may be regulated only if substantial State interests are involved and then the regulation may go no further than necessary to serve that interest.”).

 

[21] Judge, supra note 1.

 

[22] Id.  

 

[23] Id. (“This is not the first time Milich has made a controversial decision.  In June 2016, he announced he would ‘put all marriages on hold’ after the Ohio Supreme Court legalized same-sex marriage.”).

 

 

 

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