Youngstown (Ohio) Municipal Court Judge Robert Milich ordered NAACP attorney Andrea Burton to remove the Black Lives Matters pin she was wearing. The attorney refused, and was declared in contempt of court.
Judge Milich sentenced the grandstanding lawyer to five days in jail, though the sentence has been stayed while she appeals the decision, as as long as she obeys Milich’s order not to wear items that make a political statement in court. When she loses her appeal, and she will, she will have to serve the five days in jail.
Milich is on firm ethical and constitutional ground, not that this episode won’t subject him to being called a racist. It is well-established that judges can ban political expressions in the courtroom, and in 1998, the Supreme Court let stand the rulings of a federal district court and the 1st Circuit Court of Appeals, in Berner v. Delahanty, that a the judge’s prohibition of political buttons was a reasonable method of “maintaining proper order and decorum” in a courtroom. In that case, the judge prohibited lawyer Seth Berner from wearing a button saying “No on 1—Maine Won’t Discriminate,” a declaration against an upcoming state referendum.
As long as a judge doesn’t allow one form of political advocacy while banning others, there is no free speech issue. Judges have gotten themselves involved in controversy when they have allowed buttons, as in the 2006 Supreme Court case of Carey v Musladin, in which Court ruled unanimously that murder trial spectators were free to wear buttons with a picture of the victim in front of the jury that convicted the defendant. The justices agreed with California prosecutors who said the buttons were a harmless expression of grief by family members at Mathew Musladin’s trial.
I really don’t like that decision. A wise judge will avoid the issue by prohibiting any advocacy in court of of any political, social or case-related opinion.
“A judge doesn’t support either side,” Judge Milich said. “A judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law.
Because when race is involved, nobody can ever say, “OK, you’re right. Sorry for the disruption,” apparently. The Youngstown branch of the NAACP said its legal counsel is “monitoring the case closely” as it may violate Burton’s civil rights, saying in a statement, “We will do all that the NAACP Youngstown can do to ensure that Attorney Burton’s Constitutional rights are not being violated.” Well, they aren’t. Judges have the widest of latitude when it comes to controlling what is said or worn in their courtrooms. Judges have the power to make any individual remove an object that they think might be disruptive or a distraction to the court, and ought to have that power.
A spokesman for the American Civil Liberties Union of Ohio agreed with that assessment, telling reporters,“There have been cases in the past when people have been given contempt of court for refusing to comply with a judge’s order to remove an article of clothing that may have a message on it. Many times this has been done to retain the defendant’s right to a fair trial.” This is not inappropriate, he added, as long as the restrictions are reasonable and fairly applied.
Ohio attorney and community activist Kim Akins, quoted in a local news report, disagreed, saying, “No one wearing an American flag button, no one wearing a crucifix or a Star of David would be removed, so why this particular statement bothered him so much is bothersome.”
Wrong, and bad logic, with a hint of race-baiting. If I were a judge, I’d ban American flag buttons, crucifixes or Stars of David too, but Judge Millich’s retort that these are not potentially disruptive political statements like “Black Lives Matter” is not rebuttable, except in cases involving flags, Christianity and Judaism.
“Black Lives Matter” in contrast, is a divisive, contentious and in-your-face slogan with obvious political implications, falsely asserting that to police officers the U.S. justice system and society at large, black lives don’t matter. It is an implied insult to the court, the judge, law enforcement and the rule of law. This political expression would be contempt of court even to a lenient judge who permits non-disruptive political expression in his or her courtroom within reason.
Indeed, a Black Lives Matter pin is sufficiently odious that it would be worth the step of banning all messages, pins and symbolic clothing of any kind, just to keep that assaultive statement out of the halls of justice.