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HOWARD HUMAN & CIVIL RIGHTS LAW REVIEW © 2016 

Black Lives Matter Paraphernalia In The Courtroom: A Political Issue? Distraction? Or Singled Out Protected Expression?

October 25, 2016

 

INTRODUCTION

 

        Over the course of three months, at least two attorneys, have been reprimanded in court for wearing a small Black Lives Matter (BLM) pin affixed to their clothing in a courtroom.[1] Curiously one may ask, what is so extraordinary, or yet evidently wrong with a pin to warrant such action? To that question, I leave you with the most dreaded retort that law students read or hear in their daily lives, “It depends.” To be clear pins are allowed in courtrooms.[2] They are safe to wear, innocuous, and legally permissible creations. Recently, however, Ms. Andrea Burton of Ohio and Ms. Erika Ballou of Nevada, were adamantly made aware that their particular pins were, well, significant.[3] How significant? Well, at least according to the judges presiding over their respective courtrooms, politically significant; and because   the courtroom is frequently touted as no place for political partiality,[4] by order of the court, these “politically significant” pins were to be removed at once.[5]

        But in all fairness to Ms. Burton and Ms. Ballou, who both refuted any asserted political significance of a BLM pin, what exactly does it mean to be political? More significantly, who should get to define what is political? Is it fair to deem BLM a political issue, thereby banning representative paraphernalia from the courtroom? I would answer in the negative.

       This essay discusses the constitutionality of wearing a BLM pin in court. It argues that while judges have broad powers that allow them to ban pins, such reasoning to ban BLM pins particularly, may subconsciously be biased, or worse, paradoxically “political”. Part I discusses judges’ authority to restrain First Amendment political expressions in the courtroom. Part II will then discuss the problem and subjective nature of defining a political issue. Part III discusses constitutional content and viewpoint based restrictions from the bench, and plausible overlooked viewpoints that should be acknowledged before Judges withstand particular pins over others. Finally, part IV addresses distractions a variety of pins may produce for their inherent symbolism and thus why all  should all be treated equal. I conclude that because many pins may subjectively be interpreted as political, yet survive censorship from the bench, all pins should be banned in the interest of precluding the parochial banning of BLM pins and not others in courtrooms.

 

I. JUDGES’ AUTHORITY TO RESTRAIN FIRST AMENDMENT EXPRESSIONS IN THE COURTROOM

 

       The First Amendment protects an individual’s right to speak freely.[6] Speech protected by the First Amendment includes verbal "pure speech" as well as nonverbal expressions, such as the use of symbols or images.[7] The courtroom is no place for political partiality.[8] In 1998, the Supreme Court affirmed the First Circuit’s holding that a judge has the authority to prohibit political advocacy pins from the courtroom.[9] In Berner v. Delahanty, attorney Seth Berner, plaintiff, wore a pin entitled  “No on 1 - Maine Won’t Discriminate,” while in court.[10] Mr. Berner’s pin expressed opposition to a statewide referendum that voters were scheduled to consider during an upcoming election.[11] Neither the pin nor its message were related to Mr. Berner’s business before the court.[12] While he was in court, Mr. Berner was asked to remove his pin by Judge Delahanty.[13] Mr. Berner, contested, “Your Honor what happened to my right to political speech?”[14] to which Judge Delahanty replied, “Not in the courtroom. We don’t take sides…the courtroom is not a political forum.”[15] Mr. Berner then removed his pin and later filed a complaint that Judge Delahanty’s pin ban violated the First Amendment.[16]

       The district court rejected Mr. Berner’s argument.[17] The First Circuit affirmed.[18] The court reasoned that while pins may constitute a constitutionally protected form of expression, the right to advocate a particular political position by wearing an emblem[19] as an expression may be limited by a judge in order to maintain proper order and decorum in the court.[20] The courtroom is a non-public forum.[21] In a non-public forum it is the responsibility of a presiding judge that the courtroom remain an apolitical paradigm.[22] Thus, courts may ban messages in a courtroom that may be communicated by adornments, such as buttons or display pins worn on attire.[23]

 

II. THE PROBLEM AND SUBJECTIVE NATURE OF DEFINING POLITICAL ISSUES.

 

       While Berner makes clear that judges have the authority to prohibit political issues from the courtroom, what is less clear is whether judges are practically allowed free reign to subjectively determine what issues are in fact political. A “political issue” has been defined as one, of, relating to, or involving politics; pertaining to the conduct of government.[24] In Berner, the political issue was a referendum entitled “No on 1 - Maine Won’t Discriminate” whereby the public were to vote in an upcoming statewide election.[25] Thus, perceptibly because BLM is not a referendum, the political issue analysis as proffered in Berner and here applied to Ms. Burton and Ms. Ballou’s BLM pins is arguably inapplicable.[26] After all, BLM is not up for election, nor an endorsement of a candidate or party. And because the lives of black people are not up for debate, it is not irrational to state that BLM does not fit into the Berner “political issue” framework as it has found itself in the likes of courtrooms like Judge Milich and Judge Herndon’s.[27] As proponents point out, BLM is not a political issue, rather BLM is a human issue.[28]

       Notwithstanding so, it may be somewhat disingenuous to say that an issue is not political because you can’t per se vote on it, or that one cannot be political without running for office. The truth of the matter is that not all important issues are suitable for ballot purposes, and history has shown us that that’s for the best of everyone. Involuntary servitude, reproductive rights, same-sex marriage, and affirmative action, are just a few social issues that undoubtedly faced and still could face difficulty on a ballot. Thus we don’t allow them to be, and we instead allow legislation and jurisprudence to affect the change we seek. It’s clear that some of the societal changes BLM proponents seek are those that unfortunately, to say the least, require some form of regulation or legislation, such as fair sentencing, police accountability, and humanization.[29] These are examples of changes that are not far removed from the voting rights and civil rights era activism experienced in our country not so long ago.[30] To affect such needed change is to indeed be unabashedly, and rightfully so, ‘political,’ and thus it is then conceivable why many regard BLM as a political issue.  As a result, judges have the flexibility to perceive it as political issue, and therefore BLM pins may be constitutionally banned from court.

        Yet, regardless of which side one finds himself aligning on the subjective definitions of a political issue, whether or not BLM pins express some political import should not warrant an absolute ban to their visibility in a courtroom.[31] Indeed, given the subjective nature of what it means to be political, allowing judges free reign to determine political issues in effect gives judges the means to arbitrarily control what issues are allowed in court. When these decisions purposely or subconsciously become ‘political,’ the issue of whether speech is being suppressed based on its content or viewpoint should be assessed.

 

III.  CONTENT AND VIEWPOINT BASED RESTRICTIONS ON PINS IN COURT

 

        Judges have emotions and emotions influence decision making.[32] As the great Benjamin Cardozo once mused, “Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make up the man, whether he be litigant or judge.”[33] When a plaintiff seeks to launch a First Amendment challenge addressed to a policy or practice that restricts expressive activity. . . he must plead facts sufficient to show (1) that the government has burdened a protected form of speech, and (2) that the restriction in a nonpublic forum, involve showing that the restriction is biased.[34]

        A shortcoming for Mr. Berner in Berner, was the inapplicability to show an inference that it was Judge Delahanty’s ideology or bias that sparked the restriction of his button.[35] Indeed, while a judge does not need have a personal interest or bias against pins he prohibits in the courtroom, the fact that he may align with a majority viewpoint may still show cause for content or subject matter restriction.[36]  

        Subject matter restriction may be ascertained from the case of In re Frankel. In Frankel, presiding Justice Roberts ordered two attorneys to remove buttons worn in court that stated “Ready to Strike.”[37] The attorneys refused and were consequently instructed to not return to the courtroom until they removed them.[38] In a subsequent conference, Justice Roberts indicated that had the buttons stated “Save the Whales” he would have not asked the attorneys to remove them.[39] Thus, a political button for an ecological cause (“Save the Whales”) would be favored whereas the pertinent “Ready to Strike” labor-relations related button would not.[40] The attorneys sought an order from the Supreme Court of New York to prohibit the judge from enforcing the attorneys to remove their lapels,[41] and the order was granted.[42]

        In his concurring opinion Judge Wallach said the following, “[i]f the choice had to be made between saving the lawyers or saving the whales, there is little doubt that the overwhelming majority of Americans would come down on the side of the whales. But the fact that the Calendar Judge here found himself allied with that majority must be the beginning and not the end of our review . . . First Amendment rights, it is conceded, cannot be automatically left to the not always tender tyranny of the majority viewpoint.”[43]

       Thus, a judges’ viewpoint alignment, content or subject matter, or viewpoint based restriction in court may violate one’s First Amendment right to free speech.[44] And although access to a nonpublic forum may be restricted, such restriction must be reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view.[45]

       In the cases of both Ms. Burton and Ms. Ballou, both attorneys were noted wearing BLM pins without complaint just days before they were asked to remove them.[46] In fact, it wasn’t until after Judge Milch received complaint from Ms. Burton’s opposing counsel, a prosecutor,[47] and Judge Herndon a complaint from the Las Vegas Police Protective Association,[48] that both attorneys were asked to remove their respective pins. After holding Ms. Burton in contempt, Judge Milch went on to explain his reasoning stating that “there is a difference between an American flag, church, or sports related pin and one that makes a political statement.”[49] Such an injection by Judge Milch is highly problematic for two reasons. First, he obviously deemed BLM as political, a subjective opinion as noted above, that both Burton and Ballou refuted. But more significantly he failed to recognize or at least consider the political significance of the American Flag, that some attorneys in fact raised in rebuttal to the singling out of BLM pins.[50] In other words he essentially aligned with a viewpoint.

        Furthermore, while Judge Milch, Judge Herndon, and assumingly others, may draw a distinction between a Black Lives Matter pin as political or divisive, and the American flag as the inverse, many within the Black community would respectfully disagree.[51] The United States flag is by no means an immaculate symbol by which politicizing, bias, or even distraction may not reach.[52] Be it a symbol proudly adorned by hateful groups such as the KKK, a symbol of institutional racism, or an anti-defendant beacon of “law and order” in the courtroom, the content and subject matter of the flag is not indifferent. As the Supreme Court has acknowledged “For the great majority of us, the flag is a symbol of patriotism . . . For others, the flag carries in varying degrees a different message.”[53] A person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.[54] Therefore, “[T]rial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.”[55]

        Thus, allowing the flag pin to withstand scrutiny while simultaneously prohibiting BLM pins is to innately restrict speech, irrespective of whether one is intending to be political at all. While some may find discomfort in, or vehemently view such logic as petty, it does not change the validity of the fact that here, one viewpoint is favored over another, or worse that the other viewpoint is not acknowledged at all. In the court’s interest of inclusion and unbiased restriction, such suppression of a minority viewpoint must not be disregarded for the sake nor comfort of the majority.

 

IV. PIN SYMBOLISM AND DISTRACTIONS IN THE COURT

 

        It is worth noting that the BLM pins did not “distract” court proceedings until a prosecutor and a police union complained of their presence. Which to some begs the question that if Ms. Ballou or Ms. Burton had alternatively worn a fraternal order of police button or flag pin, would such a pin have warranted removal. As explained above, “we all draw something from our national symbol, for it is capable of conveying simultaneously a spectrum of meanings.”[56] Equally significant, however, is that our flag’s symbolism is not stagnant and can change upon the happening of events, such as economy downturns, terrorism, or nationalistic fervor.[57]  The effects of such symbolism have notably been recognized to potentially play a role in jury nullification when adorned by prosecutors, particularly in cases involving immigrants, and defendants of color.[58]

        While jury nullification in favor of the state may be of minor alarm to some judges,[59] nullification in favor of the defense[60](cc: O.J. Simpson) is obviously unacceptable, and the notion of such perhaps presently afoot. In labeling BLM pins as a potential distraction to jurors, Judge Herndon stated, “BLM is worn in protest of how the court treats minorities;”[61] and could thereby distract jurors from merits of the case.[62] Well, yes, Judge Herndon, in part, they are, however as Americans should we be concerned with that very fact, or the effect of such facts on juries? Nonetheless, Judge Herndon may be onto something. The idea that race matters in criminal justice is hardly shocking.[63] Given how differently Blacks are “policed”[64] in society, which at times may or may not result in prosecutions, race-based jury nullification[65] prompted by a visible reminder (a BLM pin) of the criminal justice system’s injustices toward Blacks is not improbable. However, if a BLM pin may distract jurors positively or negatively, it would be disingenuous to state that other pins such as religious crucifix, sport team paraphernalia, etc. may also distract jurors from the case before them. Consequently, if the goal of justice is endure bias and prevent injustice, all adornments worn by prosecutors and defense attorneys must be held to the same standard.

 

IV. CONCLUSION

 

        Banning pins in the courtroom is justified as ensuring that the court remains an apolitical environment free from any distractions. However, because political issues are not universal, but rather subjective to everyone in the courtroom—the judge, attorney, and juror alike—it would be worthwhile to prohibit all pins from the courtroom to prevent the arbitrary exclusion of particular pins such as BLM, while others are unscathed. Whether judges find themselves aligning with a viewpoint from the influences  of prosecutors or police organizations[66] or ultimately determining political issues on their own accords, unchecked and unconstitutional viewpoint based restrictions are inherently afoot. Such a reality should not be the case, no matter how popular or tolerable a pin is to one’s own sensibilities. Put another way… ALL PINS MATTER!

 

 

 

Rolland Hampton is a 2L at Howard Law. He is originally from Chicago, IL, and graduated from Tuskegee University with a degree in Psychology. He is passionate about civil rights and intellectual property rights.

 

[1]  See, e.g., David Ferrara, Lawyers Pack Courtroom in Support of ‘Black Lives Matter’ Movement, LAS VEGAS REV. J. (Sept. 22, 2016, 7:30 PM), http://www.reviewjournal.com/news/las-vegas/lawyers-pack-courtroom-support-black-lives-matter-movement; Mercy Yang, Judge Jails Lawyer for Wearing ‘Black Lives Matter’ Pin. Now, Activists are pushing Back.., HUFFINGTON POST (July 26, 2016, 1:24 PM), http://www.huffingtonpost.com/entry/andrea-burton-black-lives-matter_us_5797754ae4b02d5d5ed2de54; Debra Cassens Weiss, Deputy PD Refuses Judge’s Request To Remove Black Lives Matter Pin; Her Boss Supports Her, ABA J. (Sept. 21, 2016, 10:48 AM), http://www.abajournal.com/news/article/deputy_pd_refuses_judges_request_to_remove_black_lives_matter_pin_her_boss/.

 

[2] Id.

 

[3] See, e.g., id.

 

[4] Berner v. Delahanty, 129 F.3d 20, 29 (1st Cir. 1997).

 

[5] See, e.g., Ferrara, supra note 2; Yang, supra note 2; Weiss, supra note 2.

 

[6] See U.S. CONST. amend. I.

 

[7] See Jona Goldschmidt, "Order in the Court!": Constitutional Issues in the Law of Courtroom Decorum, 31 HAMILINE L. REV. 1, 43 ( 2008).

 

[8] Berner, 129 F.3d at 29.

 

[9] Id.

 

[10] Id. at 22.

 

[11] Id.

 

[12] Id.

 

[13] Id.

 

[14] Id.

 

[15] Id.

 

[16] Id.

 

[17] Id.

 

[18] Id. at 29.

 

[19] Id. at 26 (quoting Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 576 (1987); Tinker v. Des Moines Indep. Cmty Sch. Dist., 393 U.S. 503, 505 (1969)).

 

[20] Berner v. Delahanty, 129 F. 3d 20, 26 (1st Cir. 1997).

 

[21] See Berner v. Delahanty, 937 F. Supp. 62, 62-63 (D. Me. 1996); In analyzing the constitutionality of restrictions of expressive activity on property, the United States Supreme Court uses a "forum analysis." Forum analysis categorizes the physical location where the expressive activity in question takes place as either a "traditional public forum," a "designated public forum," "limited public forum," or a "nonpublic forum." Pleasant Grove City v. Summum, 555 U.S. 460, 467-70 (2009). Depending on which of these categories the property falls into, the degree of protection afforded to the speech within that forum varies accordingly. Id. The court held that the controlling legal standard was the forum-specific analysis of Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985) (discussing varying levels of scrutiny applicable to governmental restrictions on speech in different fora) Berner v. Delahanty, 129 F.3d 20, 22-23 (1st Cir. 1997). Because the parties "agreed that the state courtroom is a nonpublic forum," Judge Carter found, consistent with Cornelius, that the decision to limit the wearing of political buttons need only be: (1) reasonable in light of the purpose which the court serves and (2) viewpoint neutral." Id. at 23.

 

[22] Berner v. Delahanty, 129 F.3d 20, 27 (1st Cir. 1997).

 

[23] See Goldschmidt, supra note 8 at 62 (Presumably, these rules are intended to ensure a fair trial, especially in criminal cases where the fear is that the jurors or witnesses will be unduly influenced by the messages communicated passively or actively by persons in the courtroom.); see also American College of Trial Lawyers Annotated Code of Trial Conduct  ¶ 18 (h) (Providing that "[a] lawyer should be attired in a proper and dignified manner in the courtroom,,” and abstain from any apparel or ornament calculated to call attention to himself or herself.); Scott Kitner,  The Need and Means to Restrict Spectators From Wearing Buttons at Criminal Trials, 27 REV. LITIG. 733, 760 ((2008) (A courtroom is a place for trial, not protest or demonstration.)

 

[24] Political Issue, Black's Law Dictionary (10th ed. 2014).

 

[25] Berner, 129 F.3d at 22.

 

[26] See, e.g., Jonthan Turley, Public Defender Refuses to Remove “Black Lives Matter’ Pin Despite Judicial Order, JONATHAN TURLEY (Sept. 23, 2016), https://jonathanturley.org/2016/09/23/public-defender-refuses-to-remove-black-lives-matter-pin-despite-judicial-order/.

 

[27] See, e.g., Ferrara, supra note 2; Yang, supra note 2; Weiss, supra note 2.

 

[28] See Elisa Osegueda, Jay Z Speaks on Police Brutality: 'It's Not a Political Issue, It's a Human Issue', ENTERTAINMENT TONIGHT (Oct. 6, 2016), https://www.yahoo.com/tv/jay-z-speaks-police-brutality-205900622.html ((“Judgment is the enemy of compassion…We need to keep pushing the conversation forward. Again, it's not a political issue, it's a human issue. I would hope that any human being, that that's the right thing to do.);.”); Franchesca “Chescaleigh” Ramsey, 4 Black Lives Matters Myths Debunked, MTVFACEBOOK ( July 14, 2016), https://www.facebook.com/MTV/videos/10153884763696701/?hc_ref=NEWSFEED ((“Because of the brutalizing and killing of black people at the hands of the police and the indifference of society in general and the criminal justice system in particular, it is important that we say: Black Lives Matter.”)

 

[29] See Guiding Principles,  http://blacklivesmatter.com/guiding-principles/.Black Lives Matter, http://blacklivesmatter.com/guiding-principles/ (last visited Jan. 29, 2017).

 

[30] See The Editorial Board, The Truth of ‘Black Lives Matter’, N.Y. TIMES (Sept. 3, 2015), http://www.nytimes.com/2015/09/04/opinion/the-truth-of-black-lives-matter.html.

 

[31] See, In re Frankel, 165 A.D. 382, 384, 387 (N.Y. App. Div. 1991) (holding the mere act of wearing a button which has some expression of political import, under the circumstances herein, is an exercise of speech protected under the First Amendment of the US Constitution and article I, § 8 of the NY Constitution.  While the Trial Judge had the inherent power, in fact the obligation, to require order in the courtroom, the right of an individual under the First Amendment may not be limited or subordinated in his freedom of expression to anything less than the absolute requirement to prevent the obstruction of justice..)

 

[32] See Terry Maroney, The Emotionally Intelligent Judge: A New (And Realistic) Ideal, 49 CT. REV. 100 (2013).

 

[33] Id.

 

[34]  Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997).

 

[35] Id. at 28. “The closest that the complaint comes is an averment that, despite outlawing Berner's pin, the "defendant has routinely permitted the wearing in his courtroom of other ornamentation supporting causes, such as crucifixes and insignia for armed forces or fraternal orders." Taken as true this averment is not sufficient to sustain a claim of viewpoint discrimination because Berner does not allege that the banishment of his political pin had anything to do with the message emblazoned on his button or that the causes promoted by the permitted symbols bear an ideological relation to his own button-backed political viewpoint such that allowing these other emblems in the courtroom but excluding his pin rationally may be seen as a discriminatory attempt to stifle his opinion.”

 

[36] In re Frankel, 165 A.D.2d 382 (App. Div. 1991).

 

[37] Id. at 383.

 

[38] Id.

 

[39] Id.

 

[40] Id. at 386.

 

[41] Id.

 

[42] Id. at 387.

 

[43] Id.

 

[44] Id.

 

[45] Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985). (The essence of viewpoint-based discrimination is the state's decision to pick and choose among similarly situated speakers in order to advance or suppress a particular ideology or outlook quoting Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 806 (1985). Id. at 28.; Viewpoint neutrality prohibits the state both "from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction," Id. quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829 (1995).

 

[46] Mike Brickner, Black Lives Matter in Or Courtrooms Too (July 29, 2016), https://www.aclu.org/blog/speak-freely/black-lives-matter-our-courtrooms-too.

 

[47] David Ferrara, Lawyers Pack Courtroom in support of Black Lives MatterLAS VEGAS Rev. J. (Sept. 22, 2016, 12:10 pm), http://www.reviewjournal.com/news/las-vegas/lawyers-pack-courtroom-support-black-lives-matter-movement

 

[48] See Las Vegas Police Protective Association Letter to Chief Judge Barker (Sept. 14, 2016)

 

[49] Mike Brickner, Black Lives Matter in Or Courtrooms Too, ACLU (July 29, 2016, 8:30 am), https://www.aclu.org/blog/speak-freely/black-lives-matter-our-courtrooms-too

 

[50] Id.

 

[51] Id.

 

[52] See Attached Photos.

 

[53] Spence v. Wash., 418 U.S. 405, 413 (1974) (In Spence, Defendant was convicted under Wash. Rev. Code § 9.86.020 for displaying a United States flag, which he owned, with a peace symbol fashioned with removable tape affixed to the flag. Defendant displayed the flag outside the window of his apartment. Defendant testified that he displayed the flag to protest the Vietnam War and the killings at Kent State University and to associate the flag with peace. The state appellate court reversed the conviction. However, the state supreme court reinstated the conviction. The United States Supreme Court reversed, holding that the statute was unconstitutional as applied to defendant. The Court noted that the flag was privately owned and was displayed on private property, that defendant engaged in no trespass or disorderly conduct, that the record was devoid of proof of any risk of breach of the peace, and that defendant engaged in a form of communication. There was no risk that defendant's acts would mislead viewers into assuming that the government endorsed his viewpoint. The Court concluded that no interest that the state could have had in preserving the physical integrity of a privately owned flag was significantly impaired under the facts.)

 

[54] Spence v. Wash., 418 U.S. 405, 413 (1974) (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33 (1943)).

 

[55] In re Little, 404 U.S. 553, 555 (1972) (quoting Brown v. United States, 356 U.S. 148, 153 (1958)).

 

[56]  Id. at 405.

 

[57] See, e.g., Kevin Sack, Prosecutor Wins Right to Wear Flag Pin, N.Y Times ( Mar. 23, 1991), http://www.nytimes.com/1991/03/23/nyregion/prosecutor-wins-right-to-wear-flag-pin.html;  Montgomery v. Muller, 176 A.D.2d 29 (App. Div. 1992). In Montgomery, Defense counsel requested that the attorney be prohibited from wearing an American flag lapel pin during the trial, which was at the height of the Persian Gulf conflict. The court held that the town justice did not exceed his powers by ordering the attorney not to wear the lapel pin during the trial. Defendant had a right to a fair trial and the wearing of the lapel pin might have cause jurors, with a sense of national pride heightened by the Persian Gulf conflict, to view differently statements made by the wearer of such a pin. The court stated that although the attorney's constitutional right to free speech was limited by the action, the need to ensure the defendant a fair trial outweighed such a consideration.

 

[58] Id.

 

[59] Id. at 32. “If one needs any verification of the passion such a symbol might invoke, it is to be found in the decision of Supreme Court wherein the court stated: "I find it very difficult to understand that anyone who is a citizen of this country could object to another citizen of this country wearing an American Flag pin and especially today with the situation as it exists in the Middle East …"No one will tell me not to wear the American flag including [respondent], and/or Mausert."

 

[60] See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 700 (1995) ( Jury nullification occurs when a jury acquits a defendant who it believes is guilty of the crime with which he is charged. In finding the defendant not guilty, the jury refuses to be bound by the facts of the case or the judge's instructions regarding the law. Instead, the jury votes its conscience. Butler, Racially Based, supra note 63, at 700.)

 

[61] See, e.g., David Ferrara, Lawyers Pack Courtroom in support of Black Lives Matter, LAS VEGAS REV. J. (Sept. 22, 2016, 12:10 pm), http://www.reviewjournal.com/news/las-vegas/lawyers-pack-courtroom-support-black-lives-matter-movement; Mercy Yang, Judge Jails Lawyer for Wearing ‘Black Lives Matter’ Pin. Now, Activists are pushing Back, HUFFINGTON POST, (July 26, 2016, 1:24 pm), http://www.huffingtonpost.com/entry/andrea-burton-black-lives-matter_us_5797754ae4b02d5d5ed2de54; Deputy PD Refuses Judge’s Request To Remove Black Lives Matter Pin; Her Boss Supports Her, ABA J. (Sept. 21, 2016, 10:48 am), http://www.abajournal.com/news/article/deputy_pd_refuses_judges_request_to_remove_black_lives_matter_pin_her_boss/

 

[62] Id.

 

[63]  See Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J.Yale L.J. 677, 689 (1995).

 

[64] See Lenese C. Herbert, BETE NOIRE:* How Race-Based Policing Threatens National Security, + The French term, bete noire, describes a person or thing especially disliked or dreaded. Translated literally, it means "black beast." Random House Webster's Unabridged Dictionary (2nd ed. 2001)., 9 MICH. J. RACE & L. 149 (Fall 2003) (noting that law enforcement’s harassment, alienation and heightened suspicion of the African-American community guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system).

 

[65] See Lenese C. Herbert, LOYALTY AND CRIMINAL JUSTICE: A MINI-SYMPOSIUM: Et in Arcadia Ego: A Perspective on Black Prosecutors' Loyalty Within the American Criminal Justice System, 49 HOW. L.J. 495,521 (Winter 2006) (Explaining, race-based jury nullification is based on the following thesis: when some nonviolent criminals are not incarcerated and allowed to remain in the community, overall, the Black community is better off., (quoting Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677, 700 (1995); Professor Butler argues for jury nullification based on his opinion that the criminal justice system is unrepentantly racist; jury nullification is a way for jurors to send the message that "'race matters' in criminal justice.")

 

[66] See Spence v. Walsh, supra note 53.

 

 

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