There’s a paradox here. If #BlackLivesMatter is such a disruptive statement that it warrants holding a lawyer in contempt of court, then court — the justice system — is exactly where such statements should be made. But if #BlackLivesMatter is a controversial political statement, then judges should have wide latitude to control their courtrooms.
In Youngstown, Ohio, Judge Robert Milich held a lawyer, Andrea Burton, in contempt for wearing a #BlackLivesMatter pin on her clothes. From the ABA Journal:
Milich cited the case Berner v. Delahanty in which the U.S. Supreme Court let stand a decision upholding a judge’s ban on political buttons in the courtroom. A lawyer had challenged the ban after being forced to remove a pin supporting a referendum banning discrimination against gays.
Burton was sentenced to five days in jail. The case is now being appealed.
Now, the facts of Berner v. Delahanty seem easily distinguishable from the instant case. Berner, the lawyer, wore a pin saying “No on 1 — Maine Won’t Discriminate.” At the time, Maine was debating a statewide anti-gay referendum. It’s a somewhat obvious political statement.
#BlackLivesMatter is not an obvious political statement. It’s a self-evidently true statement. That Milich, an old white man, doesn’t think that way kind of shows you why the #BLM movement exists. I don’t carry the football well enough to get a fair shake in a Youngstown courtroom anyway, but Milich looking at #BlackLivesMatter as controversial illustrates how stacked the deck is against black participants in the legal process.
On the other hand, #BlackLivesMatter is a challenge to the white authority which often looks upon black people as fungible. It is a challenge to the implicit biases of judges like Milich. You wear a #BlackLivesMatter pin to make a guy like Judge Milich uncomfortable.
But the proper way for judges to handle “challenges” to their authority is by holding lawyers in contempt. It speaks poorly of Milich that he even noticed the pin as controversial, but upon taking it that way, contempt is kind of what is supposed to happen next.
We’re not going to solve all of the problems of race in America with lapel pins and contempt appeals. But I do think that Andrea Burton got her point across. Exposing Robert Milich as the kind of guy who would put somebody in jail for wearing a #BlackLivesMatter pin is probably worth the five days in jail.
Lawyer who refused to remove Black Lives Matter pin is sentenced to five days in jail [ABA Journal]
Elie Mystal is an editor for Above the Law and the legal editor for More Perfect. He can be reached @ElieNYC. He is afraid, he is very afraid.