USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_________________________
No. 96-2122
SETH BERNER,
Plaintiff, Appellant,
v.
JUDGE THOMAS E. DELAHANTY, II,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Seth Berner, pro se.
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Peter J. Brann, Assistant Attorney General, with whom Andrew
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Ketterer, Attorney General, and Thomas D. Warren, State
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Solicitor, were on brief, for appellee.
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October 28, 1997
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SELYA, Circuit Judge. Attorney Seth Berner claims
SELYA, Circuit Judge.
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that lawyers have an absolute right, protected by the First
Amendment, to wear political buttons in the courtroom as long as
the buttons do not disrupt judicial proceedings. We reject that
proposition and affirm the district court's dismissal of Berner's
action for declaratory and injunctive relief.
I. BACKGROUND
I. BACKGROUND
The facts, drawn from the plaintiff's verified
complaint and construed in his favor, see Dartmouth Review v.
___ _________________
Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989), can be
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recounted readily. The defendant, Thomas E. Delahanty, II, is an
associate justice of the Maine Superior Court. On October 31,
1995, Berner was seated in the gallery of Judge Delahanty's
courtroom, waiting for his turn to appear before the court.
Berner wore a circular button pinned to his lapel. The button
was approximately two inches in diameter and bore the words "No
"No
on 1 - Maine Won't Discriminate." This legend expressed
on 1 - Maine Won't Discriminate."
opposition to a statewide referendum that Maine voters were
scheduled to consider during the November election.1 Neither the
pin nor its message were related to Berner's business before the
court.
At some point during the day's proceedings, Judge
Delahanty called Berner to the bench. The following exchange
took place:
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1The referendum sought to prohibit the passage of laws that
condemned discrimination on the basis of sexual orientation. It
had been the subject of heated debate.
2
THE COURT: Mr. Berner . . . Can you remove
THE COURT:
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the political pen [sic] while you're in the
courtroom?
ATTORNEY BERNER: Your Honor, what happened
ATTORNEY BERNER:
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to my right to political speech?
THE COURT: Not in the courtroom. We don't
THE COURT:
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take sides.
ATTORNEY BERNER: I want the record to
ATTORNEY BERNER:
________________
reflect that I don't think there's any
authority for that.
THE COURT: The courtroom is not that may
THE COURT:
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be, but the courtroom is not a political
forum.
ATTORNEY BERNER: Your honor, I want the
ATTORNEY BERNER
________________
record to reflect that I object to that.
Reasonably believing that he would be held in contempt if he did
not comply with the court's order, Berner removed the button.
During a chambers conference later that day, the judge told
Berner that he planned to perpetuate the prohibition against
lawyers wearing political buttons in his courtroom unless and
until he was overruled by a higher authority.
Berner took refuge in the United States District Court,
where he sought declaratory and injunctive relief pursuant to 42
U.S.C. 1983 (1994). His rifle-shot complaint contained a
single claim: that the button ban violated the First Amendment.
In support of this claim Berner alleged that his button had not
caused any disruption of the ongoing proceedings and that Judge
Delahanty "routinely permitted the wearing in his courtroom of
other ornamentation supporting causes, such as crucifixes and
insignia for armed forces or fraternal orders."
A flurry of motions ensued. The district court denied
3
Berner's motion for a preliminary injunction, finding an
insufficient likelihood of success on the merits. The court then
addressed the defendant's motions to dismiss the action for lack
of standing and failure to state an actionable claim. The court
finessed the former by assuming, without deciding, that Berner
had standing to sue. See Berner v. Delahanty, 937 F. Supp. 62,
___ ______ _________
62 (D. Me. 1996).
Turning to the legal sufficiency of the complaint, the
court held that the controlling legal standard was the forum-
specific analysis of Cornelius v. NAACP Legal Defense and Educ.
_________ ______________________________
Fund, Inc., 473 U.S. 788, 800 (1985) (discussing varying levels
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of scrutiny applicable to governmental restrictions on speech in
different fora). See Berner, 937 F. Supp. at 63. Because the
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parties "agree[d] that the state courtroom is a nonpublic forum,"
Judge Carter found, consistent with Cornelius, that the decision
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to limit the wearing of political buttons "need only be: (1)
reasonable in light of the purpose which the court serves and (2)
viewpoint neutral." Id. Building on this premise, the judge
___
concluded that the restriction on political paraphernalia was a
reasonable attempt to "shield the courtroom from the inevitable
appearance of politicization," and that there was "no indication
that [Judge Delahanty] intended to discourage one viewpoint and
advance another." Id. Since he perceived the button ban to be a
___
"reasonable viewpoint-neutral restriction," Judge Carter ruled
that the complaint stated no claim upon which relief could be
granted. Id.
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4
On appeal, Berner assails the district court's
analysis. He maintains that the court placed undue emphasis on
Cornelius; that it erred in gauging the reasonableness of the
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ban; and, finally, that it failed to give appropriate weight to
the defendant's tolerance of persons wearing other politically-
tinged ornamentation.
II. SCOPE OF REVIEW
II. SCOPE OF REVIEW
We evaluate de novo a district court's dismissal of an
action for failure to state a cognizable claim. See Aulson v.
___ ______
Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). In assaying such a
_________
dismissal, the appellate court, like the court that preceded it,
must assume that the factual averments of the complaint are true
and must draw all plausible inferences in the plaintiff's favor.
See Leatherman v. Tarrant Cty. Narcotics Intell. & Coord. Unit,
___ __________ ______________________________________________
507 U.S. 163, 164 (1993); Dartmouth Review, 889 F.2d at 16.
________________
In this case, the district court gracefully sidestepped
the standing inquiry, preferring instead a pas de deux directly
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with the merits of the complaint. While we recognize the
occasional availability of such a terpsichorean course, see,
___
e.g., United States v. Stoller, 78 F.3d 710, 715 (1st Cir. 1996)
____ _____________ _______
(explaining that a court may bypass a difficult jurisdictional
question and instead dispose of the case on the merits if doing
so favors the party challenging the court's jurisdiction); see
___
also Rojas v. Fitch, ___ F.3d ___, ___ (1st Cir. 1997) [No. 96-
____ _____ _____
2328, slip op. at 7] (employing Stoller principle to sidestep an
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inquiry into standing), in this appellate lambada we are
5
reluctant to follow suit. Standing is a threshold issue in every
federal case and goes directly to a court's power to entertain an
action. See Warth v. Seldin, 422 U.S. 490, 498 (1975); New
___ _____ ______ ___
Hampshire Right to Life Political Action Comm. v. Gardner, 99
_________________________________________________ _______
F.3d 8, 12 (1st Cir. 1996). Moreover, the general rule is that a
court should first confirm the existence of rudiments such as
jurisdiction and standing before tackling the merits of a
controverted case. The exception discussed in Stoller is exactly
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that an exception, which, in light of the danger that an
ensuing decision on the merits might be rendered sterile by the
tribunal's lack of authority to resolve the case, should be used
sparingly. Resort should not be made to the exception where, as
here, no substantial doubt attaches to the threshold issue.
Hence, we choose to confront and resolve the standing question
before proceeding to the merits.2
III. STANDING
III. STANDING
The criteria for standing are well-rehearsed. To
establish that a dispute qualifies as an Article III "case" or
"controversy," enabling it to obtain a federal court audience,
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2Shortly after the district court dismissed Berner's suit,
Congress amended 42 U.S.C. 1983 to provide "that in any action
brought against a judicial officer for an act or omission taken
in such officer's judicial capacity, injunctive relief shall not
be granted unless a declaratory decree was violated or
declaratory relief was unavailable." Pub. L. 104-317, 309(c),
110 Stat. 3853 (1996). Judge Delahanty presumably because
Berner's complaint seeks declaratory as well as injunctive
redress neither moved for dismissal of the appeal nor raised
the amendment as an alternate ground for affirming the judgment.
Under the circumstances, it would serve no useful purpose for us
to set sail, uninvited, on these uncharted waters.
6
the party seeking to invoke federal jurisdiction must first
demonstrate that
(1) he or she personally has suffered some
actual or threatened injury as a result of
the challenged conduct; (2) the injury can
fairly be traced to that conduct; and (3) the
injury likely will be redressed by a
favorable decision from the court.
New Hampshire Right to Life, 99 F.3d at 13. We hasten to add,
____________________________
however, that the Court has placed a special gloss on cases in
which a party seeks exclusively injunctive or declaratory relief.
In such purlieus, standing inheres only if the complainant can
show that he has suffered (or has been threatened with) "an
invasion of a legally protected interest which is . . . concrete
and particularized," Lujan v. Defenders of Wildlife, 504 U.S.
_____ ______________________
555, 560 (1992), together with "a sufficient likelihood that he
will again be wronged in a similar way," City of Los Angeles v.
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Lyons, 461 U.S. 95, 111 (1983). In other words, the complainant
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must establish that the feared harm is "actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 460 (citations
_____
and internal quotation marks omitted). It bears noting that the
imminence concept, while admittedly far reaching, is bounded by
its Article III purpose: "to ensure that the alleged injury is
not too speculative." Id. at 564 n.2.
___
In addition to these benchmarks of constitutional
sufficiency, standing doctrine "also embraces prudential concerns
regarding the proper exercise of federal jurisdiction." United
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States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992). Under
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this rubric, courts generally insist that every complainant's tub
7
rest on its own bottom. See id. (stating that a plaintiff
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ordinarily cannot sue to assert the rights of third parties).
When the First Amendment is in play, however, the Court has
relaxed the prudential limitations on standing to ameliorate the
risk of washing away free speech protections. See Secretary of
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State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984).
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Hence, when freedom of expression is at stake:
Litigants . . . are permitted to challenge a
[policy] not because their own rights of free
expression are violated, but because of a
judicial prediction or assumption that the
[policy's] very existence may cause others
not before the court to refrain from
constitutionally protected speech or
expression.
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
_________ ________
Against this backdrop, Judge Delahanty strives to
persuade us that, even if Berner has standing to challenge the
button ban as a past violation of his First Amendment rights
(say, by a suit for money damages), he has no standing to seek
declaratory and injunctive relief because there is no reasonable
likelihood that he will again face similar harm. We are not
convinced.
Berner is a member of the Maine bar and a full-time
practicing lawyer who regularly handles litigation. Born in
1956, much of his career apparently lies ahead of him. Moreover,
Maine is not California. The superior court is the principal
statewide court of general jurisdiction, see Me. Rev. Stat. Ann.
___
tit. 4, 105 (West 1989), and its business is handled by a total
of only 16 active judges. The law of averages strongly suggests
8
that vocational demands will bring Berner before each and all of
these judges in the months and years to come.
To cinch matters, the parties remain philosophically on
a collision course. Berner's passion for political pins has not
waned, and he has vowed that, when once again afforded the
opportunity, he would not hesitate, but for Judge Delahanty's
stated policy, to wear a political button in the jurist's
courtroom. The judge, too, remains steadfast in his
determination to prohibit attorneys from sporting such pins in
his bailiwick.
On balance, the combination of facts reflected by the
record persuades us that Berner faces a realistic risk of future
exposure to the challenged policy. Such a risk is sufficient to
satisfy not only the standing requirements that Article III
imposes, but also the prudential concerns that sometimes trouble
courts. See DuBois v. United States Dep't of Agric., 102 F.3d
___ ______ ______________________________
1273, 1283 (1st Cir. 1996); see also American Postal Workers v.
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Frank, 968 F.2d 1373, 1377 (1st Cir. 1992) (elucidating doctrinal
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parameters of Lyons).
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In any event, Berner alleges that the button ban
constitutes a threat not only to his own right to political
speech but also to the rights of "other citizens." Thus, even if
these particular parties' paths were not likely to cross again,
Berner might well be able to invoke the federal courts'
jurisdiction to seek equitable relief based on the "judicial
prediction" that the policy may chill the general exercise of
9
free speech. Broadrick, 413 U.S. at 612. Judge Delahanty's
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prohibition apparently applies to every court officer, and we are
not so struthious as to hide our eyes from the probability that,
as a result of such a policy, other attorneys will refrain from
expressing opinions by wearing political paraphernalia when
appearing before this judge. In itself, this can be a
sufficiently concrete and particularized injury to First
Amendment protections to ground a claim of standing. See
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Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392-
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93 (1988).
IV. THE MERITS
IV. THE MERITS
In attempting to ascertain whether the district court
erred in granting the defendant's motion to dismiss the action
for failure to state a claim, Fed. R. Civ. P. 12(b)(6), we must
assume that the complaint's factual averments are true and
determine from that coign of vantage whether the pleading
encompasses any set of facts that would entitle the plaintiff to
relief. See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
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52 (1st Cir. 1990) (explaining that an affirmance of a Rule
12(b)(6) dismissal is appropriate "only if it clearly appears,
according to the facts alleged, that the plaintiff cannot recover
on any viable theory"). Although this standard is diaphanous, it
is not a virtual mirage. To survive a motion to dismiss, a
complaint must set forth "factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory." Gooley v.
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10
Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988). It is,
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moreover, settled that in judging the adequacy of a plaintiff's
allegations, "bald assertions, periphrastic circumlocutions,
unsubstantiated conclusions, [and] outright vituperation" carry
no weight. Correa-Martinez, 903 F.2d at 52.
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These rules of pleading and practice cannot be applied
in a vacuum. Thus, to evaluate properly the sufficiency of
Berner's complaint, we first construct a template that comprises
the averments necessary to state a claim for violation of the
First Amendment in this context. We then proceed to measure the
facts that Berner alleges in his complaint3 against this template
to ascertain whether those facts, if proven, suffice to establish
an entitlement to relief.
A. The First Amendment Framework.
A. The First Amendment Framework.
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It is axiomatic that not every limitation on freedom of
expression insults the First Amendment. A curtailment of speech
violates the Free Speech Clause only if the restricted expression
is, in fact, constitutionally protected, see Chaplinsky v. New
___ __________ ___
Hampshire, 315 U.S. 568, 571-72 (1942), and if the government's
_________
justification for the restriction is inadequate, see
___
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3Rule 12(b)(6) provides in pertinent part that if, on a
motion to dismiss, "matters outside the pleadings are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56."
Here, the parties submitted affidavits subsequent to the filing
of the complaint, but the district court apparently did not rest
its decision in any way on these materials (and, thus,
effectively excluded them). This course of action lay within the
court's discretion, see Garita Hotel Ltd. Partnership, Etc. v.
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Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992), and we guide
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our analysis accordingly.
11
International Soc'y for Krishna Consciousness v. Lee, 505 U.S.
_______________________________________________ ___
672, 678 (1992).4
In Cornelius, the Court articulated a three-tiered,
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forum-based test for determining when the government's interest
in limiting particular property to its intended purpose outweighs
the interests of those who wish to use the property for
expressive purposes:
[S]peakers can be excluded from a public
forum only when the exclusion is necessary to
serve a compelling state interest and the
exclusion is narrowly drawn to achieve that
interest. Similarly, when the Government has
intentionally designated a place or means of
communication as a public forum speakers
cannot be excluded without a compelling
governmental interest. Access to a nonpublic
forum, however, can be restricted as long as
the restrictions are reasonable and [are] not
an effort to suppress expression merely
because public officials oppose the speaker's
view.
Cornelius, 473 U.S. at 800 (citations and internal quotation
_________
marks omitted); accord Perry Educ. Ass'n v. Perry Local
______ ___________________ ____________
Educators' Ass'n, 460 U.S. 37, 45-46 (1983). Thus, when a
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plaintiff seeks to launch a First Amendment challenge addressed
to a policy or practice that restricts expressive activity on
public property, he must plead facts sufficient to show (1) that
the government has burdened a protected form of speech, and (2)
that the restriction is unreasonable (which, in a nonpublic
____________________
4The adequacy of the government's justification is measured
on a sliding scale. Generally speaking, the nature of the forum
in which the speech is restricted dictates the level of scrutiny
required. See International Soc'y for Krishna Consciousness, 505
___ _____________________________________________
U.S. at 678-79; United States v. Kokinda, 497 U.S. 720, 726-27
_____________ _______
(1990).
12
forum, may involve showing that the restriction is biased, and,
in public or limited public fora, may involve showing that it is
not narrowly drawn to further a compelling state interest).
The appeal before us arises in a slightly awkward
posture. Ordinarily, a complaint, standing alone, will not
provide a suitable vehicle for evaluating the adequacy of the
government's justification for restricting speech. In some
instances, however, the government's rationale is either clearly
stated in the restriction itself or plain from even a cursory
examination of the restriction. If the justification is apparent
and is plausible on its face, a complainant who hopes to survive
a motion to dismiss must do more than suggest conclusorily that
the state has an improper or insufficient motivation. Rather,
the complainant must allege facts that, if proven, would support,
directly or by fair inference, a finding that the state's
justification falls short of the applicable legal standard.
B. The Sufficiency of the Complaint.
B. The Sufficiency of the Complaint.
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We turn now to the sufficiency of the instant
complaint. As to the nature of the speech, we conclude that the
complaint adequately alleges infringement of a constitutionally
protected form of expression the plaintiff's right to advocate
a particular political position by wearing an emblem. See Board
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of Airport Commissioners v. Jews for Jesus, 482 U.S. 569, 576
_________________________ ______________
(1987); Tinker v. Des Moines Indep. Community School Dist., 393
______ __________________________________________
U.S. 503, 505 (1969). Such political expression is typical of
the broad spectrum of symbolic acts that the Free Speech Clause
13
of the First Amendment is designed to protect.
Berner does not fare as well when the spotlight shifts
to the apparent justification for the restriction. A courthouse
and, especially, a courtroom is a nonpublic forum. See
___
United States v. Bader, 698 F.2d 553, 556 (1st Cir. 1983);
______________ _____
Claudio v. United States, 836 F. Supp. 1219, 1224-25 (E.D.N.C.
_______ ______________
1993), aff'd, 28 F.3d 1208 (4th Cir. 1994). 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." Ryan v. County of DuPage, 45 F.3d 1090, 1095 (7th
____ _________________
Cir. 1995). 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. Cf. Greer
___ _____
v. Spock, 424 U.S. 828, 839 (1976) (finding that a ban on
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political speeches and demonstrations on military bases "is
wholly consistent with the American constitutional tradition of a
politically neutral military establishment under civilian
control").
Judge Delahanty's order compelling Berner to remove his
political-advocacy button while in the courtroom fits comfortably
14
within this apolitical paradigm. Emblems of political
significance worn by attorneys in the courtroom as a means of
espousing personal political opinions can reasonably be thought
to compromise the environment of impartiality and fairness to
which every jurist aspires. As an officer of the court, a
lawyer's injection of private political viewpoints into the
courtroom, coupled with the judge's toleration of such conduct,
necessarily tarnishes the veneer of political imperviousness that
ideally should cloak a courtroom, especially when the partisan
sentiments are completely unrelated to the court's business.
Here, Judge Delahanty stated clearly that he was
ordering Berner to remove the button because participants in the
judicial process ought not simultaneously "take sides" in
extraneous political debates.5 This explanation is entirely
consistent with a desire to ensure that the courtroom remains
free from the appearance of political partisanship. Evaluating
the professed justification, as we must, "in light of the purpose
of the forum and all the surrounding circumstances," Cornelius,
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473 U.S. at 809, we discern no reason why a judge may not even-
handedly prohibit lawyers from wearing political paraphernalia in
the courtroom.
Berner labors mightily to supply such a reason. Most
notably, he asseverates that, regardless of the form and function
of the courtroom, it is unreasonable to prohibit political pins
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5We consider Judge Delahanty's statements only insofar as
they are reflected in the transcript appended to and incorporated
by reference in the plaintiff's complaint.
15
that do not have the effect of disrupting judicial proceedings.
As support for this thesis, he directs us to the Court's opinion
in Jews for Jesus. He emphasizes that the Justices there
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invalidated a ban which, among other things, proscribed
"nondisruptive speech such as the wearing of a T-shirt or
button that contains a political message." 482 U.S. at 576.
Berner's reliance on Jews for Jesus is mislaid.
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That case involved an overbreadth challenge to a
municipal ordinance which, on its face, "reache[d] the universe
of expressive activity, and, by prohibiting all protected
___
expression, purport[ed] to create a virtual `First Amendment Free
Zone' at [a major airport]." Id. at 575. Not surprisingly, the
___
Court held that, even if an airport is a nonpublic forum, no
government interest could justify excluding all forms of
___
protected expression from that locale. See id. The prohibition
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here is hardly of such unbridled scope, and, in all events, the
plaintiff has not attacked it as overbroad or vague. In
addition, an airport terminal, in which free expression
presumably would have been allowed absent the challenged
ordinance, differs substantially from a courtroom, in which
"whatever right to `free speech' an attorney has is [already]
extremely circumscribed." Gentile v. State Bar of Nevada, 501
_______ ____________________
U.S. 1030, 1071 (1991). For these reasons, Jews for Jesus is
_______________
inapposite.
Stripping away the authority on which Berner relies
still leaves intact his bareboned contention that it is
16
unreasonable to restrict non-disruptive speech. As applied to
courtrooms, we think that this view is much too myopic.
In the first place, the danger of disturbing a court's
proceedings is only one acceptable justification for restricting
protected speech. There are others. So here: even though
Berner's button caused no commotion, his mere wearing of a pin
that advocates a position regarding a hotly contested political
issue raises the specter of politicalization and partiality.
Mindful of the purposes of the courtroom and Berner's role as an
officer of the court, we conclude that it was reasonable for the
judge to bar Berner's political statement regardless of whether
it created a stir. See Cornelius, 473 U.S. at 809 (finding that
___ _________
"avoiding the appearance of political favoritism is a valid
justification for limiting speech in a nonpublic forum").
There is, moreover, a broader justification. By their
nature, courtrooms demand intense concentration on important
matters. 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. If a presiding judge turns a
blind eye to attorneys' espousals of political sentiments
unrelated to ongoing proceedings, clarity and continuity may well
suffer. Hence, judges may take reasonable prophylactic measures
to minimize such distractions.
As a fallback position, Berner maintains that Judge
17
Delahanty's policy is not viewpoint neutral because the defendant
banned his button despite having allowed other emblems in the
courtroom, and that this lack of neutrality violates the First
Amendment. We disagree. The essence of viewpoint-based
discrimination is the state's decision to pick and choose among
similarly situated speakers in order to advance or suppress a
particular ideology or outlook. See Lamb's Chapel v. Center
___ _____________ ______
Moriches Union Free Sch. Dist., 508 U.S. 384, 393-94 (1993);
________________________________
Cornelius, 473 U.S. at 806. Although the Free Speech Clause may
_________
not prevent government officials from restricting an entire
category of speech based on its content, it does preclude such
officials from selectively granting safe passage to speech of
which they approve while curbing speech of which they disapprove.
See, e.g., Burnham v. Ianni, 119 F.3d 668, 676 (8th Cir. 1997);
___ ____ _______ _____
Gay Lesbian Bisexual Alliance v. Pryor, 110 F.3d 1543, 1549 (11th
_____________________________ _____
Cir. 1997).
This requirement of viewpoint neutrality prohibits the
state both "from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction," Rosenberger v. Rector & Visitors
___________ _________________
of the Univ. of Va., 515 U.S. 819, 829 (1995), and from treating
___________________
differently comparable means of expression when the nature of the
speech is the linchpin of the limitation, see AIDS Action Comm.
___ _________________
of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 9-12 (1st
______________ _______________________
18
Cir. 1994).6 This case does not implicate either of these
iterations.
There is simply no basis in the complaint for an
inference that ideology sparked the button ban. The closest that
the complaint comes is an averment that, despite outlawing
Berner's pin, the "[d]efendant has routinely permitted the
wearing in his courtroom of other ornamentation supporting
causes, such as crucifixes and insignia for armed forces or
fraternal orders." Taken as true, this averment is not
sufficient to sustain a claim of viewpoint discrimination because
Berner does not allege that the banishment of his political pin
had anything to do with the message emblazoned on his button or
that the causes promoted by the permitted symbols bear an
ideological relation to his own button-backed political viewpoint
such that allowing these other emblems in the courtroom but
excluding his pin rationally may be seen as a discriminatory
attempt to stifle his opinion.
Nor can the plaintiff convincingly mount a claim of
____________________
6In AIDS Action Committee, the defendant, a state agency,
_____________________
refused to allow the plaintiff to post public service
announcements that used "sexual innuendo and double entendre to
communicate its message" anent the use of condoms "while
simultaneously permitting other advertisers to communicate their
messages through these modes of expression." 42 F.3d at 10. The
panel compared the permitted and prohibited advertisements,
focusing particularly on whether they displayed sexual images at
equivalent levels of explicitness, and concluded that the two
sets of advertisements were equally suggestive. The panel then
ruled that the defendant's differential treatment of similarly
suggestive advertisements constituted "content discrimination
which gives rise to the appearance of viewpoint discrimination"
in violation of the First Amendment. Id. at 11.
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19
viewpoint bias based on the prohibition of his political speech
in the courtroom without a corresponding disallowance of military
and religious ornamentation (which, in his view, also advance
political causes). The lesson of AIDS Action Committee is that
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an inference of viewpoint discrimination sometimes can be drawn
when the proscribed speech and the permitted speech are alike in
ways that undermine the justification asserted in support of the
restriction. Here, however, the stated justification is to avoid
the appearance of political partiality, and Berner's allegations
do not in any way impeach that justification. No substantial
equivalency exists between political buttons, on the one hand,
and military and religious emblems, on the second hand. A
political button has only a single purpose: to express a view on
a political candidate or cause. In contrast, military and
religious symbols, standing alone, do not expressly advocate a
particular political position, and, at best, are subject only to
secondary political connotations. Such adornments have multiple
meanings, including but not limited to conveying allegiance to a
particular institution or a broad band of convictions, values,
and beliefs. Thus, because restraining partisan expression in
the neutral environ of a courtroom is a legitimate goal, a judge
reasonably may decide to prohibit pins that primarily and
expressly champion specific political stances and at the same
time permit the wearing of military and religious accessories.7
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7This case does not require us to address the question of
whether, and if so, under what circumstances, a judge has the
power to exclude military and religious insignia. We leave that
20
In the circumstances of this case, the decision not to bar such
tokens does not compromise the propriety of an otherwise
permissible prohibition precluding political paraphernalia.
To say more would be supererogatory. Based on the
allegations of the plaintiff's complaint, no inference of
viewpoint bias reasonably can be drawn.
V. CONCLUSION
V. CONCLUSION
We need go no further.8 An attorney is free, like all
Americans, to hold political sentiments. In a courtroom setting,
however, lawyers have no absolute right to wear such feelings on
their sleeves (or lapels, for that matter). Judge Delahanty's
policy of prohibiting all political pins is a reasonable means of
ensuring the appearance of fairness and impartiality in the
courtroom, and the plaintiff has made no supportable allegation
that the restriction is viewpoint based. Consequently, Berner's
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question for another day.
8In this venue, Berner argues, for the first time, that
Cornelius does not supply the appropriate legal guidepost for
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this case. In Berner's newly-emergent view, Cornelius should be
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read to affect limitations on access to public or nonpublic fora,
but not to affect limitations on speech. Although we are tempted
to hold explicitly that this access/speech dichotomy is made up
out of whole cloth, we take a simpler route. In the district
court, Berner acknowledged Cornelius's suzerainty and conceded
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relevant and substantial portions of the ensuing analysis.
Consequently, he has forfeited his right to argue a new, much
different theory on appeal. See McCoy v. Massachusetts Inst. of
___ _____ ______________________
Tech., 950 F.2d 13, 16 (1st Cir. 1991); Clauson v. Smith, 823
_____ _______ _____
F.2d 660, 666 (1st Cir. 1987).
21
complaint fails to state a claim upon which relief can be
granted.
Affirmed.
Affirmed.
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22
