When attorney Andrea Burton entered the courtroom to represent a client, she didn’t expect to be leaving in handcuffs. But when she refused a judge’s order to remove a Black Lives Matter pin last Friday, Burton found herself facing jail time.
Judge Robert Milich, of Youngstown, Ohio’s municipal court, told Burton that her Black Lives Matter pin was a dress code violation; according to a Supreme Court ruling, judges can ban political symbols in their courtroom, he told The Daily Beast. Milich reportedly asked Burton five times to remove the pin before charging her with contempt of court.
But in doing so, Ohio civil rights groups say Milich overreached, and trampled on Burton’s First Amendment rights in the process.
“Typically in a courtroom, it’s a very tightly controlled environment where the judge has pretty wide latitude to control what goes on,” Mike Brickner, a senior policy director at the American Civil Liberties Union of Ohio, told the Daily Beast. This control can extend to courtroom dress code, if the judge believes a person’s outfit might influence the outcome of a trial.
“If you’re watching a person’s trial and family members have T-shirts about the victim, sometimes the judge may say that might bias jurors against the defendant,” Brickner offers as an example. “There have also been cases where a judge has asked a prosecutor to remove an American flag pin, and he refused to do so. That was eventually litigated out, and the prosecutor was allowed to wear that American flag pin.”
Even two days before her arrest, Burton had worn the pin to court without issue, Brickner said. It was only when an opposing prosecutor complained to Judge Milich that Burton was asked to remove the pin. After Burton refused, Milich sentenced her to five days in jail for contempt of court, a ruling Burton is appealing.
It’s not clear whether a small Black Lives Matter pin like Burton’s meets the standards of disruptive political speech. Brickner says the Black Lives Matter mantra is an positive affirmation, not just a political statement.
“It isn’t about endorsing candidates or pushing for a specific legislative agenda,” Brickner said. “What it is is a statement that black lives are important and recognizing that black people are historically and systematically discriminated against in the United States.”
Milich doesn’t interpret it that way.
“There’s a difference between a flag, a pin from your church or the Eagles and having a pin that’s on a political issue,” Milich told Ohio’s WKBN.
Milich has a history of controversial interpretations. In June 2015, after the Supreme Court legalized gay marriage nationwide, Milich announced that he would not perform any marriage services.
“I think as a judge, anytime, I have a right to recuse myself from an issue and I have the time to research it and determine what is the best position,” Milich told WFMJ at the time.
(“He can’t say ‘I’m not going to perform gay marriages,’ he would be violating the law in my opinion so he has to either perform all marriages or perform none,” local attorney Dave Betras told the station.)
Reached on Monday, Milich declined to answer whether he would consider a “Support Our Troops” pin as a political statement.
“I can’t speculate on what a political pin might be until I look at it,” Milich told The Daily Beast. “I just used the definition in the Black’s Law Library Dictionary, and the standard dictionary of what’s political.”
But local civil rights groups claim Milich would have ruled differently had Burton’s button advertised a different kind of pride.
“If Attorney Burton had been wearing a Support Veterans Lives pen, she would not have been asked to take it off,” Youngstown NAACP President George Freeman Jr. said. “If attorney Burton had been wearing a Greek Festival pen, she would not have been asked to take it off.”
The Youngstown NAACP will monitor Burton’s appeal, Freeman said.
Brickner added that even five days in jail would be a harsh sentence for a contempt of court charge. “Her wearing that button, it certainly is a message,” Brickner told The Daily Beast. “But I don’t know that it shows a bias that would endanger her ability to represent her client.”