The First Amendment in the Courtroom

In there a tension between the First Amendment and a judge’s right to control the courtroom? Nah. The right of a judge to control the courtroom pretty much slices through any such tension. Courtrooms – despite being government spaces – are the quintessential non-public fora. It’s not without reason that it’s been said that first amendment rights are “at their nadir” in the courtroom.

And control they do. Judges can be notoriously tetchy about stuff.  In just this last week, I’ve seen stories about judges getting butthurt over derogatory references to AOL email addresses, a big law firm sending a first-year associate to a hearing on an important case, and a lawyer refusing to remove a “Black Lives Matter” pin.

Of course these positions are stupid: taking offense over a perhaps-derogatory reference to an email address is mind-numbingly petty; many junior lawyers are better prepared than their senior partners for questions from the bench; and getting bent out of shape over a pin says more about a judge’s political beliefs than anything else.

But there’s a reason everyone laughs at a judge’s jokes. As an advocate, you’re in court represent a client. And as Megan Zavieh notes, your sole job in the courtroom is to advance the interests of your client. So laugh you do, and be sure to be prepared for a hearing, and don’t make jokes at the tech-enfeebled judge’s expense.

And you sure as hell don’t argue with the judge when he orders you to remove your politically-sloganeering button.  It beggars belief that a lawyer wouldn’t understand this; that she would let herself be shackled and taken from the courtroom – leaving her client unrepresented – in service of “standing up for her beliefs.”

While there are arguments about whether this judge’s order was appropriate, that’s beside the point when it comes to the attorney’s decision. Her beliefs? They could live to be vindicated another day. If she thinks the judge is a retrograde dinosaur, should could have fully exercised her First Amendment right to say so – at a time when the price for doing so would have been paid by her alone.

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