No, Judge, there is not a difference.

Youngstown Municipal Court Judge Robert Milich (Photo: Screen capture from WKBN)

Youngstown Municipal Court Judge Robert Milich (Photo: Screen capture from WKBN)

Youngstown Municipal Court Judge Robert Milich took attorney Andrea Burton into custody for contempt of court after she refused to remove a Black Lives Matter pin while in his courtroom when he asked.

Judge Milich sentenced Burton to five days in jail, but she was released on a stay because the decision is on appeal. She’ll stay out of prison while she works her way through the appeals process and abides by Milich’s rule not to wear items that make a political statement in his court.

Milich told WKBN his opinions on the Black Lives Matter movement are irrelevant when it comes to his anti-pin policy.

“A judge doesn’t support either side,” he said. “A judge is objective and tries to make sure everyone has an opportunity to have a fair hearing, and it was a situation where it was just in violation of the law.”

A judge wasn’t wearing the pin. An attorney was wearing it. So much for that bit of ‘logic’. It’s not a violation of any law to wear a pin, or any other piece of self decoration. So much for that bit of ‘logic’. This is obviously not the work of anyone being objective, now is it, Judge Milich? No, what we see operating here is bias. It’s right there, out in the open, plopped out for everyone to see. Would you try to force someone to remove an Amerikkan flag pin? A Christian cross?

Oh, here we go…

The judge said his ruling is based on Supreme Court case law in which a judge can prohibit symbolic political expression in courtrooms, even if it’s not disruptive.

“There’s a difference between a flag, a pin from your church or the Eagles and having a pin that’s on a political issue,” Milich said.

So, Black Lives Matter is a political expression, but a Flag pin isn’t. Hmmm. And a church pin? That’s not political, it’s perfectly okay to be sporting that type of open discrimination in your objective court? Right.

Full story at WKBN, video at the link.


  1. Kengi says

    Interesting case law on this. I don’t think the Supreme Court heard a case on this issue, but did refuse to hear an appeal from the 1st Circuit, which let stand the circuit’s ruling. It was Berner v. Delahanty II.

    Supporting the judge’s side in this case it rules, in part:

    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.

    Basically, the judge can remain “neutral” by also not allowing “Blue lives matter” pins as well since that would be a different view of the same political statement.

    However, the ruling continues:

    The lesson of AIDS Action Committee is that 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.

    In that regard, the lawyer may have a case since the BLM button isn’t clearly “just political”. Unlike Berner’s “vote against” button, BLM is obviously a broad social justice movement that is far more than just a political statement.

    I think the layer is right and the judge is wrong on this one, based on the case the judge himself points to. I’ll be interested to see how this progresses.

  2. says

    So… “lives matter” is a political statement in his courtroom? A political statement that must not be promoted?

    That judge is a sick bastard who should not be allowed to sit in judgement of other people.

  3. says

    Gregory @ 3:

    That judge is a sick bastard who should not be allowed to sit in judgement of other people.

    I certainly think he needs to address his own bias. I also think if you’re going to pick on one person’s pin, then you should have a known, blanket policy -- no visible pins of any kind, no religious festooning of oneself, and so on.

  4. says

    Courts are a place for opinions to be aired. It’s really bizzare for an officer of a court to say “… certain opinions are not welcome here” -- way to reject your whole raison d’etre.

  5. Kengi says

    Marcus Ranum:

    Courts are a place for opinions to be aired.

    Courtrooms are a nonpublic forum. They aren’t a place for people to “air opinions” on any subject they want. I still think the judge is wrong, but not because the courtroom is a public forum.

  6. Kengi says

    Marcus Ranum@#7
    You may be confusing the legal term “public forum” with the common use of the word “public”. Kind of like how some people don’t understand what “theory” means to a scientist versus how the word is used in common language.

    For example, a public school isn’t considered to be a public forum by the courts, but is a nonpublic forum. Even though it’s a public building (built for the public using public resources, catering to the “public” students), there are obvious reasons it can’t be considered the same as a public park for the purposes of free speech and expression. Because the school has a very specific purpose (to educate the children), some forms of speech and expression which would inhibit that purpose can be curtailed in the public school but must be allowed in a public park. You are free to stand on a soap box in the public park and yell at people that blue jays are superior to cardinals, but if you insist on bringing your soap box into the local public school, you should be denied. The building being public, with public records, used by the public doesn’t make it a public forum.

    The same applies to courtrooms (and, to a lessor extent, courthouses).

    The most recent case law defining the different forums (public form, limited public form, and nonpublic forum) is Perry Education Association v. Perry Local Educators’ Association.

    Cornell’s open access law site has a good overview of the legal definitions.

  7. Kengi says

    Sorry for the bad auto-correct. Should have read “public forum, limited public forum, and nonpublic forum” there.

  8. Kengi says

    Just tried to read my post at #8. Sorry for the muddled mess, I wrote that when I was too tired to make sense. Let me try again, in English.

    A nonpublic forum is a legal term of art which doesn’t mean private forum. It is used when referring to government controlled forums which allow for the highest level of free speech restrictions for the sake of a valid government purpose.

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