Recent cases have raised the issue of whether a judge can prohibit attorneys from wearing pins or other symbols with a political message in the courtroom.
This issue was highlighted when in 2016, a Las Vegas judge ordered a defense attorney either to take off a “Black Lives Matter” pin that she wore on her lapel during a sentencing hearing or to turn the case over to someone else. In time, she was permitted to wear a black armband similar to ones that court marshals had used to commemorate police officers who had been killed in the line of duty.
Symbolic speech of attorneys in a courtroom may be unsettled law
Professor Michael Kagan sees this as a matter of unsettled law. He says that the case of Cohen v. California (1971), which involved wearing an item of clothing with an offensive message opposing the military draft, does not settle this issue. He notes that Cohen wore his jacket in a courtroom corridor rather than in a courtroom and that the court considered the case under a broader statute than one that involved courtroom conduct (2017, p. 127).
Moreover, although Kagan does not address it, the Supreme Court decision Carey, Warden v. Musladin (2006), 549 U.S. 70 (2006), upheld the right of family members, rather than attorneys, to wear buttons with the image of the victim thus implicating private rather than state action.
Kagan further examined three circuit court decisions, two in split decisions, which have reviewed this issue. In these cases courts have respectively banned an attorney from wearing a button opposing an anti-LGBT initiative, banned an attorney from using provocative words in a case involving an anti-abortion protestor, and expounded on free speech in the courtroom while rejecting a Section 1983 action filed by an attorney who sought a libel judgment against a prosecutor who had spoken ill of him.
Judges cannot discriminate against symbolic speech based on viewpoint
Kagan is wary of excluding speech or symbols in court simply because they represent “a controversial speech exception.”
Drawing from cases involving the right of Christians groups in Good News Club v. Milford Central School (2001) and Rosenberger v. Rector and Visitors of the University of Virginia (1994), Kagan argues that “Because courts are limited public fora, the government (usually in the person of the judge) may regulate the form and subject matter of speech in courtrooms, but may not discriminate based on viewpoint” (pp. 133-134). He further suggests that lawyers might have greater leeway in front of a judge than in front of a jury.
John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2017.