In the high-profile criminal trial of Cecily McMillan for assaulting a police officer, perhaps in connection with Occupy Wall Street, McMillan reportedly claims that a police officer grabbed her breast causing bruising. Given this claim, spectators in support of McMillan were reportedly “wearing a pink hand over their right breast” and instructed by the judge that they could not so during the trial.
The banning of spectator symbolic speech, such as a graphic symbol, by a judge raises the specter of a First Amendment claim. In some cases, this First Amendment claim must be weighed against a criminal defendant’s Sixth Amendment right to an “impartial jury.” As I explored in Dressing Constitutionally, one such case is Carey v. Musladin, in which spectators were wearing buttons with pictures of the victim. Although the 2006 opinion in Carey was procedural, Justice Souter concurring wrote to express his view that the First Amendment interests of the spectators was not “intuitively strong.” In a New York case, involving wearing corsages to support the victim, a trial judge stated that while free expression was at the “very core of our organized democratic society,” it had no place in the courtroom, a “holy shrine of impartiality” that was clearly committed to special and defined purposes and not the “airing of general grievances.”
Yet when the support is for the defendant and thus would not interfere with the defendant’s right to an impartial trial, the support for the banning of symbolic speech is shakier. One example is especially striking. In the high profile ‘Central Park Jogger’ criminal prosecution, the trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’” As it turns out, that sweatshirt was right.
The better view is to allow a spectator’s First Amendment rights to symbolic expression when it does not impair the criminal defendant’s right to an impartial trial.