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Las Vegas lawyers plan to defy judge, wear Black Lives Matter pins

LAS VEGAS A deputy public defender in Las Vegas who defied a judge’s request that she not wear a “Black Lives Matter” pin in court has become the latest voice of protest in a national debate over police brutality and race relations.

Erika Ballou’s protest comes two months after a black defense attorney in Ohio was arrested on a contempt of court charge for wearing a similar pin in a municipal courtroom -- prompting a debate about where to draw the line between courtroom decorum, political speech and free expression.

Youngstown, Ohio, defense attorney Andrea Burton said Wednesday she settled a federal civil rights lawsuit on Sept. 1 with an agreement that allows her to wear the pin in the courthouse -- but not in the courtroom.

“We agreed to apply a dress code evenly, so that officers also can’t be in a courtroom with black tape over their badges,” Burton said during a vacation in Las Vegas.

Ballou, who is black, balked Tuesday at Clark County District Court Judge Douglas Herndon’s request that she remove the small round “Black Lives Matter” pin from her blouse while representing a white domestic battery defendant at a sentencing hearing.

The protest is expected to continue Thursday, when Ballou and attorneys who back her protest say they intend to wear “Black Lives Matter” pins again in Herndon’s courtroom. Clark County Public Defender Phil Kohn said he’ll be with Ballou to support her position.

“If you think that Black Lives Matter is anti-police, ask yourself if police are anti-Black Lives,” Ballou said in a written statement prepared last weekend, after she learned the Las Vegas police union sent a letter to judges complaining about what the union executive termed “’Black Lives Matter’ propaganda” in courtrooms.

“In a free country, I shouldn’t be afraid of the police,” Ballou said in her statement, “but I am.”

If Burton’s case provides an example, Ballou may not win permission to wear the pin in court.

John Juhasz Jr., a lawyer who represented Youngstown Municipal Court Judge Robert Mililch in the Ohio case, said federal case law he found shows that judges have broad discretion over decorum and defense lawyers are in court to represent their clients’ interests, not their own.

“Lawyers are there for other people, not for ourselves,” Juhasz said. “The cases talk about lawyers not having First Amendment rights themselves in court. We go there as advocates for other people.”

Eugene Volokh, a law professor at the University of California, Los Angeles, said judges can limit perceived political speech or expression in court and even ban clothing such as T-shirts that convey a message. He said the challenge is doing it even-handedly, because allowing one particular message could open the doors to others.

“Imagine how controversial it would be if the judge said, ‘You can wear Black Lives Matter pins, but you can’t wear White Lives Matter or Police Lives Matter pins,’” Volokh said.

In 1998, the U.S. Supreme Court refused to hear the appeal of a Maine lawyer who was told to remove a political button in court.

Lower courts had ruled that the judge rightly told attorney Seth Berner in 1995 to remove a 2-inch pin that said “No on 1 - Maine Won’t Discriminate,” a reference to a ballot initiative to eliminate local laws protecting gay people from discrimination.

“An attorney is free, like all Americans, to hold political sentiments,” said a three-judge panel of the 1st U.S. Circuit Court of Appeals. “In a courtroom setting, however, lawyers have no absolute right to wear such feelings on their sleeves (or lapels, for that matter).”

Ballou and Burton said they’ve never met or communicated with each other, and didn’t know of the other’s stand in the free speech debate.

Burton said she was unaware of Ballou’s protest on Tuesday until she was contacted by a reporter.

Both frame the issue in terms of equal protection under the law, due process, free speech and civil rights.

“Just this morning, I wake up to another black man being shot in Charlotte (North Carolina), and two days ago in Oklahoma a man gets shot walking to his car with hands up,” Burton said.

“It isn’t that one life matters any more than any other,” the Ohio lawyer added. “Every life matters equally. But when it comes to race, it doesn’t appear that the idea of all lives matter is actually true.” 

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