Free Speech

Defendant Has No First Amendment Right to Wear "Black Lives Matter" T-Shirt at Trial

So holds the Kansas Court of Appeals, in reasoning that applies equally to any clothing that displays a message; the defendant in this particular case was on trial for setting fire to a truck that was displaying Confederate flags.

|The Volokh Conspiracy |

From today's Kansas Court of Appeals decision in State v. Bartell:

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 went to Battles' house and told Battles to move the truck. According to Battles' understanding, Bartell did not want the truck near his grandparents' property. But Battles refused to move his truck because he had not parked it directly in front of Bartell's grandparents' house. Bartell then went to the police station to complain, but the police did not make a report.

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.

Officer Brian Barber of the Holton Police Department was only three or four blocks away when he received a call that someone was pouring gasoline on a parked car. When he reached the scene, he saw Bartell in a black shirt walking away from the truck while carrying a red gas can. Barber ran up to Bartell and ordered him to stop. Bartell dropped the gas can and a box of matches on the ground. Barber later found photographs of Battles' truck on Bartell's phone.

Bartell was convicted of arson; on appeal, one of his arguments was that the trial court erred in refusing to let him wear a "Black Lives Matter" t-shirt at trial. No, said the court of appeals (I think correctly):

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 United States Supreme Court has held that the public sidewalks surrounding the Court are public forums, it has not ruled on whether courtrooms are public or nonpublic forums. That said, many other jurisdictions have held that courtrooms or courthouses are nonpublic forums. See, e.g., Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005)(holding that courtrooms are nonpublic forums); Huminski v. Corsones, 396 F.3d 53, 90-91 (2d Cir. 2005) (holding courthouses and courtrooms are nonpublic forums); Sammartano v. First Judicial District Court, 303 F.3d 959, 966 (9th Cir. 2002) (holding courthouses are nonpublic forums); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (holding lobby of courthouse is nonpublic forum); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997)(holding courthouses, particularly courtrooms, are nonpublic forums); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (holding courthouses are nonpublic forums). As the First Circuit Court of Appeals explains:

"A courtroom's very function is to provide a locus in which civil and criminal disputes can be adjudicated. Within this staid environment, the presiding judge is charged with the responsibility of maintaining proper order and decorum. In carrying out this responsibility, the judge must ensure 'that [the] courthouse is a place in which rational reflection and disinterested judgment will not be disrupted.' We think it is beyond serious question that the proper discharge of these responsibilities includes the right (and, indeed, the duty) to limit, to the extent practicable, the appearance of favoritism in judicial proceedings, and particularly, the appearance of political partiality. [Citations omitted.]" …

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."

As noted, a courthouse is a space dedicated to the adjudication of criminal and civil disputes. "Courtrooms must be neutral, politically impartial environments dedicated to fairness and equal treatment of litigants." Courts thus have an obligation to maintain courtroom order and are granted broad discretion to fulfill this obligation….

Bartell acknowledges that the district court's interest in restricting his speech to ensure a fair trial is reasonable. The court only prevented Bartell from wearing a Black Lives Matter t-shirt during trial to prevent jury prejudice or distract from the trial. The court allowed him to wear it during pretrial hearings. It did not restrict him from expressing his views outside court or from telling the jury why he did what he did in testimony. Given the courtroom's purpose and the circumstances, the restriction was reasonable.

Next, we must determine whether the district court's restriction was viewpoint neutral. In determining whether a restriction is viewpoint neutral, we look to whether the district court intended to suppress a particular point of view. Bartell does not argue that the district court intended to suppress his point of view. Nor does the record suggest it did. The court forbid Bartell from wearing any apparel bearing political slogans, and it also forbid anyone else from doing likewise. The restriction was not based on the viewpoint of the speaker, but rather political speech in general….

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69 responses to “Defendant Has No First Amendment Right to Wear "Black Lives Matter" T-Shirt at Trial

  1. That dude’s an idiot. I’m sure his grandparents are happy with him.

  2. Professor Volokh

    Would a rule that restricts items, either worn or carried, based on whether or not they contain any text or expressive images be content-neutral?

    So… the rule says you can’t wear a shirt which has writing or images on it, regardless of what the writing says or the images are, but you can otherwise wear a shirt. Or… you can’t carry a sign-like object larger than 1′ by 2′ that has writing or images on it, regardless of what the writing says or the images are, but you can otherwise carry a larger sign-like object.

    Would such rules meet a content-neutral, and not just a viewpoint-neutral, standard?

    1. Content neutral refers to the general class of the speech. Viewpoint neutral refers to the view expressed by the speech.

      So, a rule that says, “no political signs permitted within 100 feet of a polling place” is not content-neutral, but it is viewpoint neutral. A law that says, “no one may insult the King” is not viewpoint neutral.

      The sign law you hypothesize is both content-neutral and viewpoint neutral. It is also a “time, place and manner” restriction, which is another kettle of fish, and which applies in public fora.

      1. Poor Jenna Coleman this week. This normally unexpectedly liberal and little-people loving queen was ready to roll heads, literally, because someone published an artistic drawing of her bathing her new bebby.

        She is the Queen, not some sweet mommy!

        1. I would rather see a photo of her bathing herself. Jenna Coleman is all kinds of delicious. She can be my Impossible Girl anytime.

    2. The government has no authority to ban any writing on it from a court or any other government building.

      These judges are pieces of shit who refuse to follow the Constitution and then in the same breath try and use the Constitution to hammer you.

      Judges also dont want people wearing hats in court. Why does it matter what people are wearing? If the clothing is good enough for all businesses then its good enough for court.

      Judges are not kings. Their job is to judge court cases, make sure the other Branches of government follow the Constitution, and keep order in the court to allow people to argue their cases. That’s it. They are not the morality police.

      1. Your homework assignment is to identify the part of the Constitution that prohibits judges from setting rules about dress codes and behavior in their courtrooms. (Hint: not the 1st amendment, which starts “Congress shall make no law”, key word being Congress.) It might educate you to hear that the public galleries of Congress also have rules about political banners, head garments etc. and I’m fairly sure that will have been litigated in the past.

        Just because something annoys you doesn’t make it unconstitutional.

        1. Your homework assignment is to find out how Constitutional Supremacy works.

          Government cannot make laws that they dont have an enumerated power to do so.

          The Judicial Branch can absolutely regulate itself. The Judicial Branch cannot regulate the public that uses their facilities nor violate the specific protections afforded citizens.

          What people have printed on their t-shirts is none of the Judicial Branches business.

          If judges spent less time on nonsense like this, they might get through more of the cases that need rapid decisions.

          Just because something annoys you doesn’t make it constitutional.

          1. Enumerated powers only apply to the federal government, the 10th amendment reserves all powers not enumerated to the federal government to the states, which would include dress codes in municipal and state courtrooms

            The 14th amendment may apply, but unless there is a specific case incorporating the 1st amendment in courtrooms the Supreme Court will have issue a ruling first

  3. Sometimes you see victim’s families all show up in the audience, all wearing custom-printed t-shirts or gigantic buttons with the victim’s photo on them.
    I wonder if that would be just as prohibitable?

    1. There have been cases where judges have prohibited that stuff when the jury was present.

  4. “Courtrooms must be neutral, politically impartial environments dedicated to fairness and equal treatment of litigants.”

    What ended up happening to that judge wearing the pink women’s march hat, anyway?

    1. and juries should be informed of their right to nullify unjust laws, as well as weighing the facts of the case

    2. By all appearances, she continues to not actually be a judge:

      The County Judge is the presiding officer and a voting member of the Travis County Commissioners Court. In the role of presiding officer, the County Judge sets the Court’s weekly voting session agenda, and is often thought of as the chief administrator of the County through the Court?s responsibility for approving annual budgets for the entire County. In large counties like Travis, the County Judge no longer exercises judicial functions as a probate or constitutional county court judge, though the office retains the power to conduct marriages and may also be called upon to conduct administrative hearings.

      http://www.traviscountytx.gov/commiss…..-questions

  5. I remember the guy who wore Jesus and patriotic t-shirts to his drunk driving trial when I was on the jury. Annoyed me more than anything else, since it was such a blatant pandering effort.

    1. To be fair, drunk driving criminal charges are a victimless crime and should not be a crime.

      He might have been pandering to the jury’s sense of Constitutionalism.

      1. Make it legal on your street first, or in the school zone where your kids go. Or the commercial pilot on the plane you are about to fly. No victims here, right? Just potential victims, you or your kids. But that is alright, because tort law will make you whole in the end.

        Drunk driving (or drunk piloting) is an activity with heightened risk of serious injury or death to others. The collective of society has decided to diminish their right to drink anywhere, anytime in exchange for greater safety for all.
        The majority wishes to have this safety more than it wishes to drive drunk. The will of the majority is not a tyranny in this case, as no fundamental rights are trampled.

        1. I acquit drunk drivers whenever I serve on juries.

          Violating driving rules based on government’s ability to regulate commerce and postal roads would be the offense (violation of Rules of the Road).

          How drunk people get and their ability or inability to drive safely, is subjective and has no victims. if someone is hurt by the driving of a drunk driver, PRESTO, you have you victim.

          Same with the government unconstitutional laws requiring seatbelts, no cell phones, etc.

          The Constitution was designed to prevent a tyranny of the majority and the USA currently has that problem. We are a Nanny-State because judges refuse to follow the Constitution.

          1. Yup

      2. I’m pretty sure the Constitution, in any manner ever historically construed, does not prohibit the states from using the police power to outlaw victimless crimes. So what would be the point of appealing to a sense of Constitutionalism?

        1. There has to be a victim. An actual victim of injury or the state as the victim.

          The US Constitution only mentions one crime and that is Treason and the federal government would be the victim.

          The state constitutions do not give states plenary power to create any laws they want.

          The Founding of the USA had very few crimes and they all required a victim as an element.

          Victimless crimes, by definition, have no victim.

  6. Ironic that the arsonist’s appeal was on first amendment grounds … when he was accused of trying to suppress another citizen’s right to express himself.

    1. I’m sure that was his lawyers idea. This dipshits understanding of Constitutional law is:

      “I’ll do what I want”

      1. I’m sure the goal is a new trial with a more sympathetic jury or trial.

        1. Also buys time to further work the outrage machine to poison the jury pool

  7. This is awful, I bet they won’t support the right of female defendants to be topless in court, either.

  8. Good evidence that black lives matter is just a domestic terrorist organization. But as Arty Cuckland will say that is OK because of legacy of slavery or another thing like that….

    1. Domestic terror is pretty much a right-wing phenomenon, Jimmy.

      1. You have to do a lot of airbrushing to history in order to come up with that conclusion.

        1. I’m not talking about history but about current events.

          1. It’s only been a bit more than a year since a left-wing loon opened fire on a bunch of Republican congressman, and you say that with a straight face?

            1. You can find a nice list here..

              Just above it is the following:

              The politically conservative Daily Caller News Foundation using data from the National Consortium for the Study of Terrorism and Responses to Terrorism (START), found 92% of all “ideologically motivated homicide incidents” committed in the United States from 2007 to 2016 were motivated by right-wing extremism or white supremacism.[39] According to the Government Accountability Office of the United States, 73% of violent extremist incidents that resulted in deaths since September 12, 2001 were caused by right-wing extremist groups.[40][41]

              1. How about antifa at Berkley? Or the kid that got assaulted there for just having a sign? Or the Las Vegas shooter who seemed to be motivated by targeting a country singer event? Or the rampant Trump sign thefts of 2016? People being physically attacked on a regular basis for just wearing a hat with a slogan? Convenient how these never seem to be cast in the same light as any violence that fits into the left wing narrative.

                1. Are you saying the Las Vegas shooter was a left-winger because he targeted a country music venue? That’s hilarious.

                2. ” the rampant Trump sign thefts of 2016″

                  This is your idea of “domestic terror”? You poor, delicate soul…

                  1. Of course, had they been “I’m with her” sign thefts, the FBI, IRS, DEA, ATF, and whatever other TLA they could throw at it, would have been thrown at that terrorism.

      2. No, it’s not. Smollett, anyone?

    2. Jimmy the Dane: Can you elaborate, please, on how exactly this is “good evidence” of what “Black Lives Matter” as an “organization” is?

      1. This is a pretty easy one.

        blm creates an atmosphere of hate, bigotry, and intolerance that incites people to justify violence in support of their agenda.

        The person here did just that thinking they were justified because of innocent speech they found offensive to burn another man’s property. This is clear because he thought wearing a blm might sway the jury into finding him not guilty.

        And we all know just because one person does it that means it must be happening everywhere, every single day. We can’t let these types of modern day lynchings become normal in America.

    3. “Good evidence that black lives matter is just a domestic terrorist organization.”

      No, it’s good evidence that this defendant is an intolerant asshole, and an idiot as well. This story doesn’t say anything at all about Black Lives Matter.

  9. I think the even sadder part of this story is that the defendant was probably hoping, perhaps with some reasonable chance of success, that his tee shirt might actually sway at least one juror to vote “not guilty!”

    1. Nullification should have worked without the banner if it was deemed worthy.

  10. He lost me at the arson.

    Normally, I’d focus on the un-neighborly implications of flying a Confederate symbol next to your black neighbor.

    But burning your neighbor’s stuff because you don’t like their First Amendment activity isn’t neighborly either.

    1. He lost me at demanding that someone do something, not on his property.

      1. He can request anything he wants, it’s just that the law draws the line at enforcing his requests by lighting people’s stuff on fire.

        Imagine what would happen if the Black Lives Matter movement came to be associated with arson!

    2. But burning your neighbor’s stuff because you don’t like their First Amendment activity isn’t neighborly either.

      He had not been convicted of that yet.
      But yes, there is something ironic of claiming free speech at this moment.

  11. He has a first amendment write to wear any message he wants. Just like the guy has a first amendment write to paint flags on his truck. Seems like an easy conviction either way — willful destruction of property.

    1. Yes, but the judge has a right to set a dress code for his courtroom. Think about if a defendant demanded the right to wear a bikini to trial and then declared it a violation of their rights when a judge demanded that they wear something appropriate. That would be obviously absurd, yes? Well then, where is the line? I think the two standards of “reasonableness” and “fairness” are quite in line with what we can expect for the court.

  12. Time, place and manner.

    1. “Time, place and manner.”

      Maybe, if you had a choice about being there.

  13. I got lost when they jumped directly to “this restriction was reasonable.”

    I don’t see how restricting the defendants choice of clothing serves a valid interest of the state. I didn’t see any analysis that established this conclusion.

    Were I magically given authority to write this opinion, it would have been “yeah, your rights were invaded; no, you don’t get a new trial. You get nominal damages. We’ll send your $1 to you care of the state department of corrections.”

    1. I don’t see how restricting the defendants choice of clothing serves a valid interest of the state. I didn’t see any analysis that established this conclusion.

      I think the opinion explained it quite clearly, spending many pages on the subject.

      Oh, and you were apparently not only magically given power to write the opinion, but to rewrite the rules of civil and criminal procedure. He wasn’t suing, so he can’t get damages, nominal or otherwise. He was raising this issue as argument for why his conviction should be overturned.

      1. “Oh, and you were apparently not only magically given power to write the opinion, but to rewrite the rules of civil and criminal procedure”

        Yes… as I said, magic. Not “according to the current trial court rules and procedures”… “magic”. One of the cool things about magic is that it is not constrained by ordinary rules about how things work.

  14. One aspect here I don’t understand. Suppose the courtroom t-shirt ban had indeed been a 1st Amendment violation. There still is no reason to believe it affected the outcome of the case. Is there a legal rule saying you get a new trial if the judge violates some rule even if that violation had no conceivable impact on the outcome? Or would the appellant also have to show that the violation had some (how much?) probability of impacting the outcome?

    1. Is there a legal rule saying …

      No, there isn’t. What is called “harmless error” is not grounds for a new trial or other reversal.

    2. Oh, and it’s almost always fruitless to ask for a legal quantitative specification of probability?with the exception of that implicit in “preponderance of the evidence,” 50%, the rule of decision in civil cases. The best you’ll get is words like “substantial.”

      1. By about the third day of law school, you get taught that the correct answer to any legal question is “it depends.” They spend the rest of the time sorting out some of things it depends on, and how to tell what it will depend on for the questions of the future.

  15. If he had been convicted while wearing it – could he argue for a new trial based on counsel advising him to and say it was bad counsels fault?

    1. That’s what I was thinking. It might have been a deliberate strategy.

      I’ve seen it in state employment for-cause “judicial” proceedings. The alleged problem employee demands a questionable self-harming “accommodation”, intending to file an appeal based on unfair process whether it’s granted or not.

      Another time I saw a candidate in a local election carefully put a sign up 99 feet from the polling place entrance. The election judge went out and pulled it up, and the guy started yelling. The judge went back inside, and guy put the sign back up. The election judge shrugged and let it go. Sure enough, the same candidate showed up later and filed a complaint that the election (which he’d lost, of course) was invalid because the 100 foot rule hadn’t been enforced.

      1. I just had to laugh at that, because I’ve had to pull up signs as an election judge. I get out the mini-odometer and measure to the foot the 100′ from the entrance to the polling place. Last guy to get upset about it was, you guessed it, a BLM activist, because I pulled them up as he was putting them down. Usually no one is around when I pick them up and just lay them down flat because the put them up the night before the election at the polling place.

        We have a rule in our county that signs can’t be posted in the road’s right of way, and the highway dept will go yank them and put them in a pile behind their office in case a candidate wants to come get them, which usually never happens. I wonder if there is any evidence that yard signs help a candidate.

        1. Its sounds like you’re in Georgia and no… signs don’t help.

        2. “I wonder if there is any evidence that yard signs help a candidate.”

          They’re a fundraiser for the campaign. There is ample evidence that having lots of campaign funds helps candidates (though obviously, not enough to guarantee a win if the opponent is ALSO heavily funded, as they usually are.)

  16. Courts seem enthusiastic about enforcing 1st Amendment rights…*outside* the courtroom. Courtroom decorum takes precedence of free expression in the judge’s actual presence.

    Which may be the way to go, rather than run the risk of out-of-control court proceedings. It’s just that the importance of restraints on speech seem to be taken more seriously if the speech is inside the courtroom than outside of it.

  17. Judges tend to have a God complex.

    Its why judges need to be impeached on a regular basis because most of them refuse to follow the Constitution.

  18. Was the suppression of the defendant’s sartorial testimony consistent with the court suppressing all other testimony by clothing choice?
    Difficult to apply sometimes, because an ugly Christmas sweater might be just that one day, then the next day a non-verbal plea to the jury if the case involves a department store santa clause facing civil commitment for thinking he is the real Santa clause.
    Can’t suppress the latter, if the former has ever been allowed in court.
    Is the only solution to have everyone wear robes?

    1. Suits, pants and ties for everyone. Yes, including the women, it’s too much hassle to have two sets of dress codes.

      (I should mention that I’m kidding)

  19. I am amazed, seems ever reader of the VOLOKH CONSPIRACY is a constitutional lawyer!

    1. The Constitution is not hard to understand and is fairly simple.

      Why wouldn’t some people have supported opinions about the topic?

  20. Why are Libtards so violent. My guess is that they have internalized their ideology to the point that they take any position different than their personally.

    Since they think they are “In The Right” they can do anything to any one that they disagree with.

    I hope they not only fine this guy but put him away for a while since this was obviously premediated.

    DPB

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