There is an interesting controversy out of Youngstown, Ohio where attorney Andrea Burton have been jailed for five days for contempt in refusing to take off her Black Lives Matter pin. Youngstown Municipal Court Judge Robert Milich ruled that such pins are a distraction and inappropriate for the courtroom, but Burton refused to yield.
Burton was removed from the courtroom for her contempt, but released on a stay of the five-day sentence pending appeal. She will have quite a challenge. Judges are afforded considerable discretion on enforcing dress codes in their courtrooms. While American flags are allowed (as are religious symbols like crosses), political badges or pins or symbols are routinely excluded. In 1997, the United States Supreme Court ruled in Berner v. Delahanty that “lawyers have no absolute right to wear such feelings on their sleeves” and that a judge’s “policy of prohibiting all political pins is a reasonable means of ensuring the appearance of fairness and impartiality in the courtroom.”
The difficult question is where to draw the line without engaging in content-based censorship. How about a Steelers pin or (to add a combination of religion and sports) a Chicago Bears pin? How about a pro-life symbol or a ribbon for AIDS survivors or breast cancer or fallen police officers? This is why I favor a policy of no pins or symbols on attorneys or staff in an courtroom.
I believe that Milich was correct in his ruling and that Burton was equally wrong in refusing to comply with the order.
Many courts do not expressly prohibit political symbols like the one in Houston:
Proper attire is required in the courtrooms. The following accessories and items of clothing are not permitted at the City of Houston Municipal Courts:
Shorts (all types)
Hats (all types, excluding religious headwear)
Muscle Shirts and Tank Tops
Any item of clothing that displays offensive, vulgar, racist, sexist, gang-related, obscene language and/or graphics.
However, political symbols can be used to appeal to jurors to secure favorable treatment. They can also distract a jury or instill hostility toward a defendant. In my view, attorneys should not wear such items as a general matter.
What do you think?