Burton’s Button

What made lawyer Andrea Burton wear a Black Lives Matter button to Judge Milich’s Youngstown courtroom? She wanted to. When it comes to an expression of political opinion, it requires no more reason than that. Which is why some found it outrageous that Judge Milich held Burton in contempt for her refusal to remove the button.

Burton argued that her First Amendment rights overrule the Supreme Case law — and Milich’s discretion — and refused the his instructions because she didn’t want to remain “neutral to injustice.”

There is a serious question as to why Judge Milich felt it necessary to flex his judicial muscles over a BLM button. It’s not as if Burton’s button was disruptive to the decorum of the courtroom. If anything, the judge’s demand that the button be removed was more disruptive at the time, and certainly more disruptive in the long haul as it becomes a source of debate and anger.

Whether this is properly described as making a mountain out of a molehill, it was a choice made by the court that Judge Milich didn’t have to make. Like Burton’s choice to wear the button, it was Judge Milich’s choice to make a big deal of it. But he did.

And, regardless of the wisdom of his choice, the law provides that it is within his authority to order Andrea Burton to shed the button while in his courtroom.  In Berner v. Delanaty, the First Circuit held in 1997 that a judge has the authority to ban political advocacy buttons from the courtroom.

Judge Delahanty’s order compelling Berner to remove his political-advocacy button while in the courtroom fits comfortably within this apolitical paradigm. Emblems of political significance worn by attorneys in the courtroom as a means of espousing personal political opinions can reasonably be thought to compromise the environment of impartiality and fairness to which every jurist aspires. As an officer of the court, a lawyer’s injection of private political viewpoints into the courtroom, coupled with the judge’s toleration of such conduct, necessarily tarnishes the veneer of political imperviousness that ideally should cloak a courtroom, especially when the partisan sentiments are completely unrelated to the court’s business.

The rationale is weak. It bows to the pretense that lawyers, as “officers of the court,” a nonsense phrase that’s pulled out whenever convenient, shouldn’t express their “personal political opinions” in court so that the “environment of impartiality and fairness” isn’t compromised. What a load of crap.

While the rationale makes sense as applied to the judge and court staff, for whom impartiality is their duty, the lawyers aren’t supposed to be impartial. They’re advocates. They’re the opposite of impartial. It’s not the defense lawyer’s job to maintain an atmosphere of fairness; it’s her job to zealously represent her client.  The opinion smells more of a court trying to protect its turf by grasping at straws so that judges can micromanage their courtrooms.

And yet, the Supreme Court denied cert, letting the decision stand.  While that doesn’t give Berner the force of a Supreme Court opinion, contrary to the media discussion, it remains the leading case on the issue and precedent in the First Circuit. It is the law. Until another court of equal or higher jurisdiction holds otherwise.

Burton’s contention, that her First Amendment rights “overrule Supreme Case law” (whatever that means) is similarly wrong.  The First Amendment means what courts say it means, which is how law works. Our individual views as to the scope of our rights don’t transcend the caselaw, no matter how much we may wish it did. That Burton doesn’t like the limitations upheld in Berner is fine. but that doesn’t mean she’s entitled to ignore them.

The retort to the law is that American flag pins are commonly permitted in the courtroom, so why not BLM? Judge Milich’s answer is:

“There’s a difference between a flag, a pin from your church or the Eagles and have a pin that’s on a political issue,” Milich told WKBN. Judges are generally granted wide latitude in what they allow in their courtrooms.

This matters because the one condition of Berner is that the judge apply the restriction equally so that one political opinion isn’t suppressed while its opposite is permitted. Obviously, religious symbols and sports teams aren’t the same as political butons, but is a flag pin?

On the one hand, the American flag is the symbol of the United States of America, and as such, reflects a love of country. As such, it’s apolitical, much as the flag behind the bench. But that’s a somewhat idealized view of the significance of the flag pin. It is also a symbol of support for law enforcement, for law and order, for traditional values.  It reflects the old 60s aphorism, “America, Love It or Leave it.”  Now we’re deep into political territory, the antithesis of Black Lives Matter.

It takes very little effort to construct an argument that the American flag pin is a neutral symbol of national pride and devotion.  A little artful rhetoric and, boom, problem solved. But then, there are a great many people who wouldn’t buy that crap, who see the flag as a symbol of obedience to law enforcement, to law and order, to conservatism. Only the most naive will fail to recognize that a flag pin carries far more baggage than simple, neutral patriotism.

“It’s an act of civil disobedience, I understand that. I’m not anti-police, I work with law enforcement and I hold them in the highest regard, and just to say for the record I do believe all lives matter. But at this point they don’t all matter equally, and that’s the problem in the justice system,” Burton said.

Despite Burton’s unfortunate Gertruding, the point of an act of civil disobedience is to take a stand on a controversial position and bear the consequences, knowing that it will result in punishment.  Civil disobedience doesn’t mean you get a free ride from consequences, but that you believe enough in what you are doing that you are willing to suffer the consequences. Five days’ jailing for contempt is a pretty stiff consequence, though it’s stayed to give Burton the opportunity to appeal.

The rule of Berner is silly, poorly reasoned and should be reversed. In the absence of disruption in the courtroom, the right of an attorney (not the judge, prosecutor or court staff) to exercise her First Amendment rights should remain intact. But that’s not the law as of now, and Judge Milich was within his authority to hold Burton in contempt.

Even so, that doesn’t make it a wise exercise of authority, or provide a real answer to the question of why a flag pin is fine but a BLM pin is not. Perhaps this situation will give rise to a challenge to the Berner decision and, eventually, a circuit court, or the Supremes, will reject the holding and return the First Amendment to the courtroom.

13 thoughts on “Burton’s Button

  1. Nigel Declan

    Regardless of the legality of wearing the button, hasn’t Burton done a disservice to her duty to represent her client (assuming, without knowing, that the client was not advised of the potential consequences of Burton wearing the button)? By making a political statement by wearing a button and refusing to remove it, she seems to have put her own interests above those of the client. Even if the judge hadn’t asked her to remove it, the political statement made was conceivably one that could have offended the judge. Burton didn’t just show up in court on her own time to show off her button, but was there to represent a client, whose matter was now adjourned, the article seems to suggest. Burton was put in contempt because she was defending her rights, not the client’s, it seems.

    1. SHG Post author

      You are right on all counts. It’s conceivable that her client knew, understood what Burton put at risk, and agreed with her choice, but there is no basis to assume that to be the case. Her personal political statement certainly compromised her client’s welfare when she refused to remove it and stood firm for contempt, and may have compromised her client’s welfare even if she hadn’t been held in contempt.

      The lesson, of course, is make political statements on your own dime, not the client’s.

  2. SamS

    If the client did not know what Burton was going to do, can’t he sue for malpractice? Also, besides the contempt citation, isn’t there some ethical violation here?

    1. SHG Post author

      Not malpractice without substantial additional (and highly unlikely) information, and even then, malpractice only occurs after damages are sustained. It’s too early for that. And what DR do you suggest was violated?

  3. John Barleycorn

    I get it, you want BBQ this afternoon but only get kale chips.

    Your indoctrination, imersion, and struggles with the dark nature of the courtroom’s default force is strong in this post esteemed one but yet you refuse to let your capillaries burst and become one with their tributary role in nurturing the great river of buttons.

    Oh well, we must all carry our burden as prescribed.

    Not to worry it shouldn’t be too long now before the “revolutionaries” figure out that there is no need to tarnish the courtroom’s  cracking formica, masquerading as birdseye maple veneer, with lapel pens when all you have to do is hand out Ayurveda Phamplets on the courthouse steps which clearly state that pearls are the go to treatment for mental illness when not being deployed to remedy digestive issues.

    Jurors aren’t stupid you know. They will figure it out.

    And once the nuances of the Ayurveda texts, take hold, Saturday morning cartoons mocking the history of the robe are soon to follow.

    Stop resisting, just relax. Put your hands up and kneel. Feel the power and submit.

    1. SHG Post author

      But what about the distinction between cultured pearls and natural? Cultured pearls carry the added benefit of showing an otherwise lonely clam a good time.

      1. John Barleycorn

        Mollusk molesters, on and on they go about culturing the pearls insisting that the clams like it.

    2. Patrick Maupin

      “kale chip factories in Alabama”

      I expected better of you, Barleycorn.

      It’ll be all your fault when thousands of low-paid kale chip factory workers are laid off because you explained to the cognoscenti-wannabe proletariat that kale chips aren’t free-range.

      I hope you’re proud of yourself.

      1. John Barleycorn

        And  I suspose you think Judge Delahanty’s insistence on an orderly courtroom free from the wrong buttons  are his way to actualize his daydreams of being able to pocket the taxes he collects from the serfs of his fiefdom one day to buy extra hollindase?

        I see…

        Well, I have been mening to tip off the freelancing femdom experts within the  Enforcement Wing of the Uderground Button Brigade to check into your browsing history Patrick.

        The proletariat wannabe cognoscenti are actually a forgiving bunch even when attempting to enlighten themselves.

        But you are right about the misunderstandings that can arise and how distraught even the actual cognoscenti can get, when they learn that egg yolks from chickens that are feed only kale and salamanders while in a sling from cradel to grave make the for the  best hollandaise known to mankind.

        For after learning that, the questions about “Just what leaves are selected to be used in the kale chip factory then?” will soon be followed by “Just how many  fucking kale and salamander egg yolks go into the hollindase the natural-pearl- wearing-set eats annually each year?” And sooner than you think no one cares that the hollondase chickens share their leftover kale with the chip factory.

        So you just remember that you will have no one but yourself to blame when you face the proletariat after the kale riots begin if you are amongst those that have a thing for natural pearls dipped in holindase and served off Italian leather thigh high boots.

        Order is important. Respect the kale you get.

        1. Patrick Maupin

          Thanks for the tip, Barleycorn.

          I’ll be watching for when kale prices collapse due to the discovery that the chips aren’t free-range. I already know where to get chickens and salamanders. I can probably use old bicycle inner tubes for the slings, so I’ll have some nice hollandaise to console myself with when the layoffs occur. Not sure about the pearls served on boots — that’s probably an acquired taste.

          1. John Barleycorn

            Natural pearls that is.

            It’s a natural calling just ask the prosecutors. I think some people are just born with it.

            I know for a fact being a judge who is wary of buttons is a genetic trait.

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