Judges can ban political buttons in courtrooms

Wednesday, April 1, 1998

The Supreme Court let stand a decision that judges can prohibit symbolic political expression in courtrooms, even if it's not disruptive.

The high court recently refused to hear the appeal of Maine lawyer Seth Berner, who challenged a state judge's rule prohibiting political buttons in his courtroom.

The dispute in Berner v. Delahanty began in October 1995 when Berner appeared in Maine Superior Court Justice Thomas E. Delahanty's courtroom wearing a button saying “No on 1—Maine Won't Discriminate.”

Berner wore the button to express his opinion on a statewide referendum that would prohibit laws outlawing discrimination on the basis of sexual orientation.

Delahanty told Berner to remove the political pin. Berner questioned the judge about his political free-speech rights but reluctantly complied. Shortly thereafter, Berner filed a lawsuit in federal court, contending the rule violated his political free-speech rights.

“It was a tremendous shock to me when the judge ordered me to remove the button,” Berner said. “Every time a court ruled against me it just reinforced these feelings of shock and disappointment.”

Both a federal district court and the 1st Circuit Court of Appeals rejected Berner's arguments. The appeals court determined that the judge's prohibition of political buttons was a reasonable method of “maintaining proper order and decorum” in a courtroom, which is not a public forum.

The appeals court wrote: “By their nature, courtrooms demand intense concentration on important matters. Whether or not disruptive, buttons that display political messages are at the very least distracting.”

Berner criticized the court's analysis in an interview with the First Amendment Center.

“The appeals court's decision left me scratching my head,” he said.

“The opinion seems to imply that judges are so fragile that they cannot handle distracting speech. Where in First Amendment law has 'distracting' ever been an appropriate standard to measure speech? That, it seems to me, is a tremendous insult to judges.

“This case clearly involved political speech which represents the core type of speech the First Amendment was designed to protect,” Berner said.

“It appears that the judges involved in this case were not willing to accept any limitations on courtroom authority. This case unfortunately shows us that the power of judges is more important than nondisruptive political speech, which makes one wonder how important the concept of a working democracy is anymore.”

However, Peter Brann, the assistant attorney general who represented Delahanty, takes a different view of the case.

He said: “We are obviously pleased that the U.S. Supreme Court denied certiorari [refused to hear the case]. Although the case was somewhat unusual from a factual standpoint, the 1st Circuit's decision did not break any new ground, but merely applied Supreme Court case law.

“Courts are not public fora. Therefore, restrictions on speech need only be reasonable and the courts have determined this was a reasonable restriction on speech,” Brann said.

First Amendment expert Robert O'Neil, who assisted in Berner's appeal to the Supreme Court, says the appeals court decision was wrong. “The appeals court's decision unduly sterilized the court of political speech,” he said.

O'Neil says that the effect of the Berner case is that “unless a judge targets a particular message, there does not appear to be any recourse. There is no guarantee of free-speech protection unless you have clear viewpoint bias. I do think this issue will recur.”

Berner says he believes that there will be no free-speech protection in courts “unless some lawyer is willing to risk alienating the judiciary and stand up for free-speech rights.

“This is a far more important case than it will ever be recognized for,” he said.