EDITORIAL: On the button

Is a wearing a Black Lives Matter button a political statement? Or is it more akin to sporting an American flag lapel pin?

Clark County District Judge Douglas Herndon apparently believes the former.

On Tuesday, the judge ordered a local public defender representing a defendant before him in court to remove a Black Lives Matter button from her clothing. The attorney, Erika Ballou, refused and asked that another judge take up her case. Judge Herndon declined to recuse himself and delayed sentencing Ms. Ballou’s client.

“My oath is to protect everyone’s free speech, even if I disagree with it,” Ms. Ballou said. “And I’m not comfortable abridging my freedom of speech.”

Judge Herndon responded that, “We’re not here on a petition about a movement or a protest or anything like that. We’re here to dispense justice on a criminal calendar of cases. And that’s why I think it’s inappropriate.”

This is not the first time the issue has come up in a judicial setting. In July, an Ohio judge had an attorney handcuffed and charged with contempt when she refused to remove a Black Lives Matter pin while appearing in his court. Here, too, the lawyer argued she had a First Amendment right to display the message.

Against that backdrop, Judge Herndon’s actions seem rather restrained.

In fact, the U.S. Supreme Court has previously held that judges may limit symbolic political expression in their courtrooms. In 1998, for instance, the justices refused to overturn a lower court ruling that a judge was within his authority to bar a Maine attorney from wearing a button supporting a ballot measure seeking to outlaw discrimination based on sexual orientation.

Ms. Ballou argues the Black Lives pin makes no such political statement. “This is an issue about criminal justice,” she said. “I believe a courtroom is the proper place to make issues about criminal justice. This is not political speech.”

But that’s disingenuous. The Black Lives Matter movement is certainly highly political and embraces an agenda that reaches far beyond simply bringing attention to police activity in minority communities. Just last month, a Washington Post reporter described the effort as “a broad, multi-pronged attempt to create social and legal change populated, fueled and driven by a wide variety of individuals and organizations committed to a common set of political goals.”

But while judges must have the discretion to control their courtrooms and to limit conduct that could taint judicial proceedings, they must invoke this discretion with care and with as much deference toward the First Amendment as possible. Whether one agrees or disagrees with its message, Ms. Ballou’s button was neither inherently disruptive nor an attempt to impede or influence justice. Absent those factors, Judge Herndon and the courts should always come down on the side of free expression.