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Why a Vegas judge ordered attorney to remove 'Black Lives Matter' pin

The defense attorney argues her free speech rights are being infringed. Another hearing is scheduled for Thursday.

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    Erika Ballou was asked to remove Black Lives Matter pin or leave the courtroom of Judge Douglas Herndon at the Regional Justice Center on Tuesday.
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A judge in Nevada ordered criminal defense attorney Erika Ballou to remove her "Black Lives Matter" button while in his courtroom Tuesday, describing the message as a form of political speech. Ms. Ballou, who is black, refused.

The standoff, in which Ballou contends she's defending her free speech rights, followed a complaint to the state's chief district court judge from the Las Vegas police union regarding "‘Black Lives Matter' propaganda."

"We have received complaints from our member officers who believe that such displays have no place in courtrooms in which justice is to be dispensed," Steve Grammas, executive director of the Las Vegas Police Protective Association, wrote last week.

"We are certain that the courts would not allow similar displays from citizens who believe that killers should be sentenced to death or that sexual predators should be castrated," Mr. Grammas continued, according to the full letter as published by the Las Vegas Review-Journal. "While we embrace the First Amendment, we do not believe that such statements should be made in the halls of justice."

Clark County District Court Judge Douglas Herndon, who instructed Ballou to remove her pin, said his directive was a neutral and longstanding policy to avoid outside influences in the courtroom. (In an unrelated case, for instance, Judge Hernon had asked members of the public to cover up the T-shirts they were wearing to support victims in the case.)

"Wear it in the hallway. Wear it in front of the courthouse," Herndon told Ballou as The Associated Press reported. "Demonstrate. Protest. Use your voice. But that's not what dealing with justice on an individual case is about."

The controversy cropped up during what would have been a sentencing hearing for one of Ballou's clients convicted of battery, but the hearing was postponed to Thursday after Ballou declined to remove her button or recuse herself from the case.

"I don't think that this should be controversial," Ballou told The Huffington Post, noting that she's been wearing the Black Lives Matter pin for two months and sees its message as similar to raising awareness of breast cancer.

Black Lives Matter, a loose collection of activists, released a platform for the first time last month.

Ballou's claims are similar to those raised in Ohio last July by attorney Andrea Burton, who was jailed for five days after refusing to remove her Black Lives Matter pin while in court. Ms. Burton, who also is black, asserted that her "act of civil disobedience" did not constitute a disruption.

Case law, however, suggests that whether a particular political message is disruptive may be irrelevant in determining whether it constitutes constitutionally protected speech in a courtroom.

In 1995, attorney Seth Berner wore a two-inch "No on 1 – Maine Won't Discriminate" pin on his lapel in court, expressing opposition to a referendum that would ban any nondiscrimination laws that provide protections on the basis of sexual orientation. A judge ordered him to remove it.

Mr. Berner complied, then sued in federal court. He lost in district court and on appeal.

"A courthouse – and, especially, a courtroom – is a nonpublic forum," First Circuit Court Judge Bruce Selya wrote in his 1997 opinion, citing a 1985 US Supreme Court decision to find that the presiding judge has the responsibility to maintain proper order and decorum.

"By their nature, courtrooms demand intense concentration on important matters," Judge Selya continued. "Whether or not disruptive, buttons that display political messages are at the very least distracting. Lawyers who wear such emblems serve not only as vocal advocates for their clients in matters before the court, but also as active promoters of their own political agendas."

The US Supreme Court declined to hear Berner's case.

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