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.