A Stitch in Haste

A Massachusetts state judge has banned t-shirts bearing the words "Stop Snitchin'" from his courthouse (not his courtroom, mind you, but from the entire courthouse):

Robert A. Mulligan, chief justice for administration and management, also imposed strict limits on the use of cellphones in courthouses, citing several recent cases in which spectators pointed mobile-phone cameras at witnesses, jurors, or law-enforcement officials. The incidents included a gang-related conspiracy trial in Salem last spring.

"There are some people coming to courthouses, a very small fraction of people, who come there to chill individuals from participating in the process," Mulligan said in an interview. "This problem is not an overwhelming concern, but it's something we have to be cognizant of and sensitive to."

Wait a minute -- it's not "an overwhelming concern," but this judge still considers himself authorized to chill expressive conduct for all court spectators? That makes no sense.

I blogged about the issue previously in the context of an insane hack politician proposal to confiscate these shirts from merchants. That stupidity seems to have died the ignominious death it deserved.

As for this judge, however, whatever happened to Cohen v. California, 403 U.S. 15 (1971), which held in no uncertain terms that there is a First Amendment right to wear expressive messages in courthouses (in that case, a jacket proclaiming "Fuck the Draft")?

I suppose the argument here is that the t-shirt is not meant to convey a First Amendment message, but rather to intimidate witnesses and jurors; such conduct is not constitutionally protected. But still, the restriction would have to be narrowly tailored to the interest of preventing witness intimidation. Just the presence of a gang member in the court will likely be intimidating -- is the next step to deny gang members, or even suspected gang members, their right to attend a trial?

A flat-out ban is never "narrowly tailored" to anything. The proper approach is a case-by-case, witness-by-witness, "totality of the circumstances" approach and a requirement of some particularized reason to keep a particular individual from attending a trial or wearing a particular t-shirt with a particular message.

Witnesses and jurors deserve to be protected, but not via an overcompensating shotgun approach that trammels the First Amendment.