
USCA1 Opinion

	




                            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).                                          21          complaint  fails  to state  a  claim  upon  which relief  can  be          granted.          Affirmed.          Affirmed.          ________                                          22
