Berner v. Delahanty

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, State

Solicitor, were on brief, for appellee.

October 28, 1997

SELYA, Circuit Judge. Attorney Seth Berner claims
SELYA, Circuit Judge.

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

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:

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:

the political pen [sic] while you're in the
courtroom?

ATTORNEY BERNER: Your Honor, what happened
ATTORNEY BERNER:

to my right to political speech?

THE COURT: Not in the courtroom. We don't
THE COURT:

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:

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

of 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." 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.

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

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

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

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

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,

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.

Lyons, 461 U.S. 95, 111 (1983). In other words, the complainant

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

States v. AVX Corp., 962 F.2d 108, 114 (1st Cir. 1992). Under

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

7

rest on its own bottom. See id. (stating that a plaintiff

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

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 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.

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

parameters of Lyons).

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

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

Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392-

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,

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.

10

Mobil Oil Corp., 851 F.2d 513, 515 (1st Cir. 1988). It is,

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.

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.

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

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.

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, the Court articulated a three-tiered,

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

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.

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

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

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,

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

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

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.

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

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.

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

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

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

question for another day.

8In this venue, Berner argues, for the first time, that
Cornelius does not supply the appropriate legal guidepost for

this case. In Berner's newly-emergent view, Cornelius should be

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

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).

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complaint fails to state a claim upon which relief can be

granted.

Affirmed.
Affirmed.

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