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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.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
___________________

_________________________

Before

Selya, Circuit Judge,
_____________

Aldrich and Campbell, Senior Circuit Judges.
_____________________

_________________________

Seth Berner, pro se.
___________

Peter J. Brann, Assistant Attorney General, with whom Andrew
______________
______
Ketterer,
________

Attorney

General,

and

Thomas D.
Warren,
___________________

Solicitor, were on brief, for appellee.

State

_________________________

October 28, 1997
_________________________

SELYA, Circuit Judge.
SELYA, Circuit Judge.
______________

Attorney

Seth Berner

claims

that

lawyers have

an

absolute right,

Amendment, to wear political buttons

the buttons do not disrupt

protected

by the

First

in the courtroom as long as

judicial proceedings.

We reject that

proposition and affirm the district court's dismissal of Berner's

action for declaratory and injunctive relief.

I.
I.

BACKGROUND
BACKGROUND

The

complaint

facts,

and construed

Dartmouth College, 889
__________________

recounted readily.

drawn

from

in his favor,

F.2d

13,

of the Maine

1995, Berner

seated in

courtroom,

plaintiff's

verified

see Dartmouth Review v.
___ _________________

16 (1st

Cir.

1989), can

be

The defendant, Thomas E. Delahanty, II, is an

associate justice

was

the

waiting for

his

the

Superior Court.

gallery of

turn to

appear

On

October 31,

Judge

Delahanty's

before the

court.

Berner wore a

circular button pinned to

was approximately two

on
on

1
1

-

Maine
Maine

opposition

to

inches in diameter and bore

Won't
Won't

a

his lapel.

Discriminate."
Discriminate."

This

statewide referendum

the words "No
"No

legend

expressed

Maine

voters were

scheduled to consider during the November election.1

Neither the

pin nor its message were

that

The button

related to Berner's business before the

court.

At

Delahanty

some point

during

the

day's

called Berner

to the

bench.

The

proceedings,

Judge

following exchange

took place:
____________________

1The referendum sought

to prohibit the passage of laws that

condemned discrimination on the basis
had been the subject of heated debate.

of sexual orientation.

It

2

THE COURT:
THE COURT:
_________
the

Mr. Berner . . .

political pen [sic]

Can you remove

while you're in the

courtroom?

ATTORNEY BERNER:
ATTORNEY BERNER:
_______________

Your Honor, what

happened

to my right to political speech?

THE COURT:
THE COURT:
_________
take sides.

Not in the courtroom.

We don't

ATTORNEY BERNER:
ATTORNEY BERNER:
________________
reflect

that

I

I

want

don't

the

think

record

there's

to

any

authority for that.

THE COURT:
THE COURT:
_________
be, but

the

The courtroom is not

courtroom is

not

that may

a

political

forum.

ATTORNEY BERNER:
ATTORNEY BERNER
________________

Your

honor,

I want

the

record to reflect that I object to that.

Reasonably believing that he would be held in contempt if he

not comply

with the

During

a

Berner

that he

court's order,

chambers conference

lawyers wearing

planned to

Berner removed

later

perpetuate

political buttons

that day,

the

the button.

judge told

the prohibition

in his

against

courtroom unless

until he was overruled by a higher authority.

did

and

Berner took refuge in the United States District Court,

where he

U.S.C.

sought declaratory and injunctive relief pursuant to 42

1983 (1994).

single claim:

that the

In support of this

caused any

Delahanty

His rifle-shot

complaint

button ban violated the First Amendment.

claim Berner alleged that his button

disruption of the ongoing proceedings

"routinely permitted the

other ornamentation

contained a

wearing in his

supporting causes,

such

had not

and that Judge

courtroom of

as crucifixes

and

insignia for armed forces or fraternal orders."

A flurry of motions ensued.

3

The

district court denied

Berner's

motion

for

a

preliminary

injunction,

insufficient likelihood of success on the merits.

addressed the defendant's

of standing and

finessed

finding

The court then

motions to dismiss the action for lack

failure to state an actionable claim.

the former by

had standing to sue.

an

assuming, without deciding,

See Berner v. Delahanty, 937
___ ______
_________

The court

that Berner

F. Supp. 62,

62 (D. Me. 1996).

Turning

court

held that

to the legal sufficiency of the complaint, the

the controlling legal

specific analysis of

standard was

the forum-

Cornelius v. NAACP Legal Defense and Educ.
_________
______________________________

Fund, Inc., 473 U.S. 788, 800
___________

of

(1985) (discussing varying levels

scrutiny applicable to governmental restrictions on speech in

different fora).

See Berner, 937 F.
___ ______

Supp. at 63.

Because the

parties "agree[d] that the state courtroom is a nonpublic forum,"

Judge

Carter found, consistent with Cornelius, that the decision
_________

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."

concluded that the

Id.
___

this premise,

the judge

restriction on political paraphernalia

reasonable attempt to

appearance

Building on

"shield the courtroom from

was a

the inevitable

of politicization," and that there was "no indication

that [Judge Delahanty]

intended to discourage one

viewpoint and

advance another."

"reasonable

Id.
___

Since he perceived the button ban to be a

viewpoint-neutral restriction,"

that the

complaint stated

granted.

Id.
___

no claim upon

Judge Carter

which relief

ruled

could be

4

On

analysis.

He

appeal,

Berner

assails

the

maintains that the court placed

district

court's

undue emphasis on

Cornelius; that
_________

it erred

ban; and, finally,

the

in gauging

the reasonableness of

that it failed to give

defendant's tolerance of

the

appropriate weight to

persons wearing other politically-

tinged ornamentation.

II.
II.

SCOPE OF REVIEW
SCOPE OF REVIEW

We evaluate de novo a

action

for failure to state

Blanchard, 83
_________

F.3d 1,

district court's dismissal of an

a cognizable claim.

3 (1st Cir.

1996).

In assaying

dismissal, the appellate court, like the court that

must assume that the factual

See Aulson v.
___ ______

such a

preceded it,

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,

with

the

merits of

preferring instead a pas de deux directly
____________

the

occasional availability

e.g.,
____

of

such a

While we

terpsichorean

recognize

the

course,

see,
___

United States v. Stoller, 78 F.3d 710, 715 (1st Cir. 1996)
_____________
_______

(explaining

question

so

complaint.

that a court

may bypass a

and instead dispose of the

favors the party

difficult jurisdictional

case on the merits if doing

challenging the court's

jurisdiction); see
___

also Rojas v. Fitch,
____ _____
_____

___ F.3d ___, ___ (1st Cir.

2328, slip op. at 7]

(employing Stoller principle to sidestep an
_______

inquiry

into

standing),

in

this

appellate

1997) [No. 96-

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);

Hampshire Right to Life Political Action Comm. v.
_________________________________________________

F.3d 8, 12 (1st Cir. 1996).

New
___

Gardner, 99
_______

Moreover, the general rule is that a

court should first

jurisdiction

and

controverted case.

that

an

confirm the

standing

before

which, in

here,

no

Hence, we

the

light

of the

merits

danger

the merits might be rendered

tribunal's lack of authority to

sparingly.

tackling

rudiments such

of

as

a

The exception discussed in Stoller is exactly
_______

exception,

ensuing decision on

existence of

that an

sterile by the

resolve the case, should be used

Resort should not be made to the exception where, as

substantial

doubt attaches

choose to confront

to

the

and resolve the

threshold issue.

standing question

before proceeding to the merits.2

III.
III.

STANDING
STANDING

The

establish that

criteria

for

standing are

a dispute qualifies

well-rehearsed.

as an Article III

To

"case" or

"controversy,"

enabling it to

obtain a federal

court audience,

____________________

2Shortly after the

district court dismissed

Congress amended 42 U.S.C.
brought against a
in
be

1983 to

provide "that in any action

judicial officer for an act

or omission taken

such officer's judicial capacity, injunctive relief shall not
granted

unless

a

declaratory

declaratory relief was unavailable."
110

Berner's suit,

Stat.

Berner's
redress

3853 (1996).
complaint

Judge

seeks

neither moved for

the amendment as

decree

violated

Pub. L. 104-317,

Delahanty

declaratory

was

as

or

309(c),

presumably because
well

as

injunctive

dismissal of the appeal

nor raised

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

actual

or threatened

the

personally has

suffered some

injury as a

challenged conduct;

result of

(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
____________________________

however, that

the Court has placed

at 13.

We

hasten to add,

a special gloss on

cases in

which a party seeks exclusively injunctive or declaratory relief.

In such

show

purlieus, standing inheres

that he

has suffered

(or

only if the

has been

complainant can

threatened with)

invasion of a legally protected interest which is . . .

"an

concrete

and particularized,"

555, 560

Lujan v.
_____

Defenders of Wildlife, 504
______________________

(1992), together with "a sufficient

will again

be wronged in a similar way,"

Lyons, 461 U.S. 95, 111 (1983).
_____

must establish that

likelihood that he

City of Los Angeles v.
___________________

In other words, the complainant

the feared harm is "actual

conjectural or hypothetical."

Lujan, 504 U.S.
_____

and internal quotation marks omitted).

or imminent, not

at 460 (citations

It bears noting that the

imminence concept, while

admittedly far reaching, is

its Article III purpose:

"to

not too speculative."

In

addition

U.S.

bounded by

ensure that the alleged injury

is

Id. at 564 n.2.
___

to

these

benchmarks

of

constitutional

sufficiency, standing doctrine "also embraces prudential concerns

regarding the proper

exercise of federal jurisdiction."

States v. AVX Corp., 962 F.2d 108,
______
__________

United
______

114 (1st Cir. 1992).

Under

this rubric, courts generally insist that every complainant's tub

7

rest on

its own

ordinarily cannot

When

the First

bottom.

See
___

id.
___

sue to assert

Amendment is

in

(stating that

the rights

a

plaintiff

of third

parties).

play, however,

the Court

has

relaxed

the prudential limitations on standing to ameliorate the

risk of washing

away free speech protections.

See Secretary of
___ ____________

State of Md. v.
____________

Joseph H. Munson Co., 467 U.S.
____________________

947, 956 (1984).

Hence, when freedom of expression is at stake:

Litigants

. . . are permitted to challenge a

[policy] not because their own rights of free
expression
judicial

are

prediction or

[policy's]
not

violated, but

the

constitutionally

of a

assumption that

very existence

before

because

court

may cause
to

protected

the

others

refrain

from

speech

or

expression.

Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
_________
________

Against

persuade us

button

this

backdrop,

that, even if

ban as

a past

Judge

Delahanty

Berner has standing to

violation of

his First

strives

to

challenge the

Amendment rights

(say, by a

suit for money damages),

declaratory

he has no standing

to seek

and injunctive relief because there is no reasonable

likelihood that

he will

again face

similar harm.

We

are not

convinced.

Berner is

practicing

a member

lawyer who

of the Maine

regularly handles

bar and

a full-time

litigation.

Born

1956, much of his career apparently lies ahead of him.

Maine is

not California.

The superior

court is

Moreover,

the principal

statewide court of general jurisdiction, see Me. Rev.
___

tit. 4,

in

Stat. Ann.

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

waned,

vowed

and he

opportunity, he

stated policy,

has

that, when

would not

to

wear

passion for political pins has not

once

hesitate, but

a

judge,

political

courtroom.

The

too,

determination

to prohibit attorneys

for Judge

button

remains

again afforded

in

the

Delahanty's

the

steadfast

from sporting such

jurist's

in

his

pins in

his bailiwick.

On balance, the

combination of facts reflected

record persuades us that Berner

faces a realistic risk of future

exposure to the challenged policy.

satisfy

imposes,

courts.

not

only

the standing

by the

Such a risk is sufficient to

requirements

that

Article III

but also the prudential concerns that sometimes trouble

See
___

DuBois v. United States Dep't of Agric., 102
______
______________________________

1273, 1283 (1st

F.3d

Cir. 1996); see also American Postal Workers v.
___ ____ ________________________

Frank, 968 F.2d 1373, 1377 (1st Cir. 1992) (elucidating doctrinal
_____

parameters of Lyons).
_____

In

constitutes

any event,

a threat

Berner

not only

alleges

to

that

his own

the

right to

button

ban

political

speech but also to the rights of "other citizens."

these particular parties' paths

Berner

might

jurisdiction

well

to seek

prediction" that

be

able

were not likely to cross

to

invoke

equitable relief

the policy

Thus, even if

may chill

the

based

federal

on the

the general

again,

courts'

"judicial

exercise of

9

free

speech.

Broadrick, 413
_________

U.S. at

612.

Judge Delahanty's

prohibition apparently applies to every court officer, and we are

not so struthious as to hide our eyes from the

as a result of such a

expressing

appearing

opinions

before

sufficiently

Amendment

policy, other attorneys will refrain

by

this

concrete

protections

probability that,

wearing

judge.

and

to

political

In

paraphernalia

itself,

particularized

ground

a claim

of

from

when

this

can

injury

to

First

standing.

See
___

Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383,
________
________________________________

be

a

392-

93 (1988).

IV.
IV.

THE MERITS
THE MERITS

In

erred

attempting to ascertain

in granting the

whether the district court

defendant's motion to

for failure to state a claim,

dismiss the action

Fed. R. Civ. P. 12(b)(6), we

must

assume

that the

determine

from

complaint's

that

factual

coign

of

encompasses any set of facts

relief.

52

vantage

are

whether

the

true

and

pleading

that would entitle the plaintiff to

See Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49,
___ _______________
__________________

(1st Cir.

12(b)(6)

averments

1990) (explaining

that

dismissal is appropriate

an affirmance

"only if it

of a

Rule

clearly appears,

according to the facts alleged, that the plaintiff cannot recover

on any viable theory").

is not

a virtual

complaint must set

inferential,

Although this standard is diaphanous, it

mirage.

To survive

a motion

to dismiss,

forth "factual allegations, either

respecting

each

material

sustain recovery under some actionable

element

direct or

necessary

legal theory."

a

to

Gooley v.
______

10

Mobil Oil Corp., 851
________________

moreover,

F.2d 513,

settled that in judging the

allegations,

"bald

assertions,

unsubstantiated conclusions,

no weight.

515 (1st

Cir. 1988).

It

is,

adequacy of a plaintiff's

periphrastic

[and] outright

circumlocutions,

vituperation" carry

Correa-Martinez, 903 F.2d at 52.
_______________

These

rules of pleading and practice cannot be applied

in

a vacuum.

Berner's

Thus,

to

evaluate properly

the sufficiency

of

complaint, we first construct a template that comprises

the averments

necessary to

state a claim

First Amendment in this context.

for violation

of the

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.
A.

The First Amendment Framework.
The First Amendment Framework.
_____________________________

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

Hampshire, 315 U.S.
_________

protected, see Chaplinsky
___ __________

568, 571-72 (1942), and

v. New
___

if the government's

justification

for

the

restriction

is

inadequate,

see
___

____________________

3Rule

12(b)(6) provides

motion to dismiss,

in pertinent

part that

"matters outside the pleadings

to and not excluded by the court,

if, on

a

are presented

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

of the complaint, but the
its

decision

effectively
court's

in

any

the filing

district court apparently did not rest
way

on

these

materials

(and,

thus,

excluded them). This course of action lay within the

discretion, see Garita Hotel Ltd. Partnership, Etc. v.
___ _____________________________________

Ponce Fed. Bank, 958 F.2d 15, 18-19 (1st Cir. 1992), and we guide
_______________
our analysis accordingly.

11

International Soc'y for Krishna Consciousness v. Lee,
_______________________________________________
___

505 U.S.

672, 678 (1992).4

In

Cornelius,
_________

forum-based test for

the Court

articulated

a three-tiered,

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

expressive purposes:

[S]peakers can

be

excluded

from

a

public

forum only when the exclusion is necessary to
serve

a

compelling state

exclusion is
interest.

interest

narrowly drawn to

and the

achieve that

Similarly, when the Government has

intentionally designated a place
communication

as

a

public

or means of

forum

speakers

for

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,
_________

marks

473 U.S.

omitted);

at 800

accord
______

Educators' Ass'n, 460
_________________

plaintiff seeks to

to a policy

Perry Educ. Ass'n
___________________

U.S.

the

v.

quotation

Perry Local
____________

45-46 (1983).

Thus, when

a

challenge addressed

expressive activity

on

facts sufficient to show (1) that

burdened a protected form of

restriction

____________________

37,

that restricts

public property, he must plead

that

and internal

launch a First Amendment

or practice

the government has

(citations

is unreasonable

(which,

speech, and (2)

in

a nonpublic

4The adequacy of the
on a sliding scale.

Generally speaking, the

in which the speech is
required.
U.S. at

government's justification is measured

nature of the forum

restricted dictates the level of scrutiny

See International Soc'y for Krishna Consciousness, 505
___ _____________________________________________
678-79; United States
_____________

v. Kokinda, 497 U.S.
_______

720, 726-27

(1990).

12

forum, may involve

showing that the restriction

in public or limited public fora,

is biased, and,

may involve showing that it is

not narrowly drawn to further a compelling state interest).

The

posture.

appeal

before

Ordinarily,

provide a suitable

a complaint,

vehicle for

government's justification

instances, however,

stated in

us arises

for

in

a

standing

evaluating the

restricting

itself or plain

examination of the restriction.

In

the

some

from even

a cursory

If the justification is apparent

dismiss must do more than

state has an

will not

adequacy of

speech.

and is plausible on its face, a complainant who

the

alone,

the government's rationale is either clearly

the restriction

a motion to

slightly awkward

hopes to survive

suggest conclusorily that

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.
B.

We

complaint.

The Sufficiency of the Complaint.
The Sufficiency of the Complaint.
________________________________

turn

now

to

the

sufficiency

of

the

As to the nature of the speech, we conclude

complaint adequately

protected form of

alleges infringement of

expression

that the

a constitutionally

the plaintiff's right to advocate

a particular political position by

of Airport Commissioners v.
_________________________

instant

wearing an emblem.

Jews for Jesus,
______________

482 U.S.

See Board
___ _____

569, 576

(1987); Tinker v. Des Moines Indep. Community School Dist., 393
______
__________________________________________

U.S. 503,

505 (1969).

the broad spectrum

Such political expression is

of symbolic acts that the

13

typical of

Free Speech Clause

of the First Amendment is designed to protect.

Berner does not fare as well when the

to the apparent

and,

justification for the restriction.

especially, a

United States v.
______________

courtroom

Bader,
_____

698

is a

F.2d 553,

Claudio v. United States, 836 F.
_______
______________

1993),

function

provide

a

nonpublic

556

A courthouse

forum.

(1st Cir.

Supp. 1219, 1224-25

aff'd, 28 F.3d 1208 (4th Cir.
_____

is to

spotlight shifts

locus in

1994).

which

See
___

1983);

(E.D.N.C.

A courtroom's very

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.

the judge

rational

proper

reflection

Ryan
____

1995).

and

disinterested

We think

it is

of

particularly,

424

will

be

that the

includes the

right

limit, to the extent practicable, the

favoritism

in

judicial

proceedings,

the appearance of political partiality.

U.S.

not

1095 (7th

beyond serious question

these responsibilities

(and, indeed, the duty) to

appearance

judgment

v. County of DuPage, 45 F.3d 1090,
_________________

discharge of

v. Spock,
_____

carrying out this responsibility,

must ensure "that [the] courthouse is a place in which

disrupted."

Cir.

In

828, 839

(1976)

(finding that

and

Cf. Greer
___ _____

a

ban

on

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

significance worn

by attorneys

espousing personal

to compromise

which

every

lawyer's

paradigm.

Emblems

in the courtroom

of

political

as a

means of

political opinions can reasonably

the environment

of impartiality

jurist aspires.

injection

of

As an

private

courtroom, coupled with

and fairness

officer of

political

be thought

to

the

court, a

viewpoints

into the

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

ordering Berner to

judicial

extraneous

process

Delahanty

stated

clearly

that

he

was

remove the button because participants in the

ought

political

not

simultaneously

debates.5

This

"take

sides"

explanation is

in

entirely

consistent with a

free from the

desire to

ensure that

the courtroom

appearance of political partisanship.

remains

Evaluating

the professed justification, as we must, "in light of the purpose

of the forum

and all the surrounding

473 U.S. at 809, we

circumstances," Cornelius,
_________

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

____________________

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

As support for this thesis, he

in

Jews for Jesus.
_______________

invalidated

a

"nondisruptive

button

ban

speech

that contains

disrupting judicial proceedings.

directs us to the Court's opinion

He

emphasizes

which,

among

such as

a political

that the

other

the

Justices

things,

wearing of

message."

Berner's reliance on Jews for Jesus is mislaid.

there

proscribed

a T-shirt

482 U.S.

or

at 576.

______________

That

case

involved

municipal ordinance which,

of

expressive

an

overbreadth

challenge

on its face, "reache[d]

activity,

and,

by

prohibiting

to

a

the universe

all
___

protected

expression, purport[ed] to create a virtual `First Amendment Free

Zone' at [a major airport]."

Court held

that, even

government

interest

if an

could

Id.
___

at 575.

airport is

justify

plaintiff

has

addition,

an

presumably

not

See id.
___ ___

all
___

attacked

have

it

as overbroad

terminal,

been

in

allowed

which

absent

forum, no

forms

of

The prohibition

such unbridled scope, and, in all

airport

would

a nonpublic

excluding

protected expression from that locale.

here is hardly of

Not surprisingly, the

or

free

the

events, the

vague.

In

expression

challenged

ordinance,

differs

"whatever right

extremely

U.S.

substantially

to `free

circumscribed."

1030, 1071

(1991).

from

speech' an

Gentile
_______

For

a

courtroom,

attorney has is

in which

[already]

v. State Bar of Nevada, 501
____________________

these reasons, Jews for Jesus is
_______________

inapposite.

Stripping

still

leaves

intact

away

his

the authority

bareboned

16

on which

contention

Berner relies

that

it

is

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

protected

speech.

Berner's button

Mindful

raises

are others.

caused no commotion,

that advocates a

issue

There

justification for restricting

the

So

even though

his mere wearing of

position regarding a hotly

specter of

here:

a pin

contested political

politicalization

and partiality.

of the purposes of the courtroom and Berner's role as an

officer of the court, we conclude

judge to bar

that it was reasonable for the

Berner's political statement regardless

it created a stir.

See Cornelius,
___ _________

of whether

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

nature,

is, moreover, a broader justification.

courtrooms

matters.

Whether

demand

or

political messages are

intense concentration

not

disruptive,

at the very

buttons

By their

on

important

that

least distracting.

display

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

blind

eye

own political agendas.

to

attorneys'

If

espousals

a presiding judge

of

political

turns a

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

courtroom, and that

Amendment.

We

this lack of

disagree.

discrimination is the state's

The

allowed other

emblems in

neutrality violates the

essence

of

the

First

viewpoint-based

decision to pick and choose

among

similarly situated speakers

particular

ideology or

in order

outlook.

Moriches Union Free Sch. Dist.,
________________________________

Cornelius,
_________

not

473 U.S. at 806.

prevent

category of

government

See
___

or suppress

Lamb's Chapel
_____________

508 U.S.

a

v. Center
______

384, 393-94

(1993);

Although the Free Speech Clause may

officials from

speech based on

officials from

to advance

restricting

its content, it does

selectively granting

safe passage

an

entire

preclude such

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

opinion or

the speaker

rationale

or the

perspective of

is the

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
___

of Mass., Inc. v.
______________

AIDS Action Comm.
_________________

Mass. Bay Transp. Auth., 42 F.3d
_______________________

18

1, 9-12 (1st

Cir.

1994).6

This

case

does not

implicate

either of

these

iterations.

There is

simply

no

basis in

the

complaint

inference that ideology sparked the button ban.

the

complaint comes

Berner's

pin,

wearing

in

causes,

such as

fraternal

his

the

is

an

"[d]efendant

courtroom

crucifixes

orders."

averment

Taken

of

has

other

that,

as

true,

despite

this

outlawing

permitted

ornamentation

for

an

The closest that

routinely

and insignia

for

supporting

armed forces

averment

the

is

or

not

sufficient to sustain a claim of viewpoint discrimination because

Berner does not

allege that the banishment of

had anything to do with

that

the

causes

his political pin

the message emblazoned on his

promoted

by

the

button or

permitted symbols

bear

an

ideological relation to his own button-backed political viewpoint

such

that

allowing these

excluding

his pin

other

emblems in

rationally may

be

the

seen as

courtroom but

a discriminatory

attempt to stifle his opinion.

Nor can

the plaintiff

convincingly mount

a claim

of

____________________

6In
refused

AIDS Action Committee,
_____________________
to

allow

the

announcements that used
communicate

its

the defendant, a

plaintiff

to

post

message"

anent

the

use

the

permitted

of

service

entendre to

condoms

"while

advertisers to communicate their

messages through these modes of expression."
compared

public

"sexual innuendo and double

simultaneously permitting other

panel

state agency,

and

42 F.3d at 10.

prohibited

The

advertisements,

focusing

particularly on whether they displayed sexual images at

equivalent levels
sets

of explicitness,

and concluded

of advertisements were equally suggestive.

ruled that the
suggestive

defendant's differential

advertisements

which gives rise

constituted

to the appearance of

in violation of the First Amendment.

that the

The panel then

treatment of
"content

two

similarly

discrimination

viewpoint discrimination"
Id. at 11.
___

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).

an inference of

The lesson of AIDS Action Committee is that
______________________

viewpoint discrimination sometimes can

when the proscribed speech and

ways

the permitted speech are alike in

that undermine the justification asserted in support of the

restriction.

Here, however, the stated justification is to avoid

the appearance of political

do not

in any

equivalency

and

partiality, and Berner's allegations

way impeach that

justification.

exists between political

military and

religious

political

religious

particular

candidate

emblems,

or cause.

symbols, standing alone,

No substantial

buttons, on the

on the

political button has only a single purpose:

a

be drawn

In

second

one hand,

hand.

A

to express a view on

contrast,

do not expressly

military and

advocate a

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

particular

and

institution or a

beliefs.

Thus,

broad band of

reasonably

may

decide

expressly champion

time permit the

convictions, values,

because restraining partisan

the neutral environ of a courtroom

to

a

expression in

is a legitimate goal, a judge

prohibit

pins

specific political

wearing of military and

that

primarily

and

at the

same

stances and

religious accessories.7

____________________

7This case
whether, and

does not require

if so,

us to address the

under what circumstances,

power to exclude military and

a judge

religious insignia.

20

question of

has the

We leave that

In the circumstances of this

tokens

does

not

case, the decision not to

compromise

the

propriety

of

an

bar such

otherwise

permissible prohibition precluding political paraphernalia.

To say

allegations

of

more

the

would be

plaintiff's

supererogatory.

complaint,

viewpoint bias reasonably can be drawn.

no

Based on

the

inference

of

V.
V.

CONCLUSION
CONCLUSION

We need go no further.8

An attorney is

Americans, to hold political sentiments.

however, lawyers have no absolute

their sleeves

(or lapels, for

free, like all

In a courtroom setting,

right to wear such feelings on

that matter).

Judge Delahanty's

policy of prohibiting all political pins is a reasonable means of

ensuring

the

appearance

courtroom, and the

that

of fairness

and

impartiality

in the

plaintiff has made no

supportable allegation

the restriction is viewpoint based.

Consequently, Berner's

____________________

question for another day.

8In

this venue,

Cornelius does
_________
this case.

Berner argues,

not supply

In Berner's

for

the appropriate

the first

time, that

legal guidepost

for

newly-emergent view, Cornelius should be
_________

read to affect limitations on access to public or nonpublic fora,

but not to affect limitations on speech.
to hold explicitly that
out

of whole cloth,

this access/speech dichotomy is made

we take a

simpler route.

court, Berner

acknowledged Cornelius's
_________

relevant

substantial

and

Consequently, he

portions

has forfeited

different theory on appeal.
Tech., 950
_____

F.2d 13,

Although we are tempted

In the district

suzerainty and

of

up

conceded

the

ensuing

analysis.

his right to

argue a

new, much

See McCoy v. Massachusetts Inst. of
___ _____
______________________

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.
________

22