Law Humor

Attorney Loses Round One in Battle for First Amendment Right to Wear Hats

By Kevin Underhill

Q: Does the First Amendment to the United States Constitution guarantee an attorney the right to wear whatever he or she wants to wear in court?

A: No.

This is the lesson of Bank v. Katz, a case decided on Thursday by Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York.  Attorney Todd Bank reportedly showed up in a state court in March 2008 wearing jeans and a baseball cap that said "Operation Desert Storm" on it.  The presiding judge, Judge Anne Katz, told Bank he was not dressed appropriately for court, and he was told to remove his hat.  Bank responded in the logical way, by suing the judge and the court clerk for allegedly violating his First Amendment rights.

First Amendment rights are not absolute, Judge Garaufis pointed out in his ruling.  "When he is not in court," the judge wrote, "plaintiff is free to express the ideas he wishes to express, and to wear the attire he chooses to wear."  But when he is in court, a judge may impose reasonable restrictions on his dress and behavior in order to enforce "commonly shared mores of courtroom civility."

Presumably, this means the no-hats rule was applied across the board and so was content-neutral.  That is, Bank did not allege that Judge Katz was trying to suppress the pro-Desert-Storm message on his hat, something that might have subjected her action to strict scrutiny and possibly changed the result.  Hopefully, there is a test case in the works somewhere that will explore these issues fully.

Full post as published by Lowering the Bar on September 28, 2009 (boomark / email).