Satisfying as it may be to sucker punch someone who says something you deem awful, you can’t punch a pickup truck. It’s an inanimate object and will just hurt your fist. So Andrew Bartell came up with an alternative. Torch it.
Bartell, a 26-year-old student at the University of Kansas, was visiting his grandparents in Holton in early July 2016. On July 3, Bartell’s grandparents’ neighbor, Steven Battles, had parked his truck on the street near Bartell’s grandparents’ home. Battles’ truck had a Confederate flag painted on the hood and a Confederate flag flying from the bed. Bartell found this very disrespectful because he felt the Confederate flag was “a symbol of hatred, slavery and the KKK.”
Bartell asked Battles to move his truck. Battles refused. Bartell went to the police, who refused to take a report of this hate crime. What else could he do?
The next day, Jeffrey Cannon and his mother were sitting on their deck when they saw Bartell walk from his grandparents’ house and down the sidewalk to Battles’ truck. According to Cannon, Bartell was wearing a black t-shirt with a tuxedo graphic on the front. Bartell stopped and appeared to take pictures of the truck with his phone. He then walked back to his grandparents’ house.
Shortly afterwards, Bartell returned to the truck carrying a red gas can. Cannon called the police as Bartell poured gas all over the truck and the flag. Bartell then lit the truck on fire with a match and slowly walked back to his grandparents’ home.
This time, the police took action. Bartell went to trial and lost. On appeal, he complained that his First Amendment rights were abridged when the judge refused to allow him to wear a “Black Lives Matter” t-shirt during trial. The Kansas Court of Appeals was unpersuaded.
The United States Supreme Court has identified three types of forums [for speech on government property]: traditional public forums, designated public forums, and nonpublic forums. Traditional public forums are places traditionally devoted to public assembly and debate, such as parks and public streets. Designated public forums are public places the State has opened for expressive activity by the public at large, for certain speakers, or for certain subjects. And nonpublic forums are places “which [are] not by tradition or by designation a forum for public communication.”
While the Supreme Court has never held that courtrooms are nonpublic forums, it’s likely because the view is otherwise universal for fairly obvious reasons. You can’t hold a trial in the midst of a riot. If you can’t limit the “free speech” of a witness, you can’t limit tesimony to that permissible as evidence. If anyone can scream anything they like at any time, trials would be impossible. This might seem like a flaw rather than feature to some, but still. Even so, free speech isn’t left to the whim of the judge.
The State may restrict speech in a nonpublic forum as long as: (1) the restriction is reasonable; and (2) the restriction is viewpoint neutral, i.e., the State is not suppressing speech merely because of opposition to the speaker’s viewpoint.
The district court’s restriction on Bartell’s speech was reasonable. Whether a restriction is reasonable depends on the purpose of the forum and the restriction’s circumstances. As long as the restriction is reasonable, “it need not be the most reasonable or the only reasonable limitation.”
Was it reasonable that Bartell was denied the right to wear his tee in front of the jury? He wore it during pre-trial hearings, but then the only observer was the judge, who was unlikely to be influenced by the message. It’s possible Bartell wore the shirt because it was the next t-shirt in the pile to be worn, and with no other purpose in mind.
Or he wore it to give silent testimony to his racial politics, an appeal to the jury’s sensibilities so as to remind them that as criminal as torching a pickup may be, he did so in the name of tolerance?* After all, black lives matter more than pickup trucks or confederate flags.
*Notably, it’s not unusual for families to show up in court with buttons or shirts bearing images or words designed to prejudice the jury. It’s also not unheard of for lawyers and judges to wear political symbols before the jury.