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Volokh Conspiracy

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.


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….