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By Bill Altreuter

I tell clients who are going to be deposed or appear in court to dress as though they are going to church, and that pretty much gets me the result I'm hoping for, although not always. Years ago I was picking a jury in a big products liability case and one of the other lawyers spent a peremptory challenge-- no small coin-- to excuse a juror who was wearing a baseball cap. (I've had students in my Discovery class at the law school show up for the final in baseball caps too. Here's a tip-- that'll cost you half a letter grade.) I've said before that I'd favor wigs and robes for lawyers. I've also speculated that the day may be coming when a suit and tie is as exclusive to the legal profession as the backwards collar is to clergy. Comes now Judge Nicholas G. Garaufis of the Federal District Court for the Eastern District of New York-- as it happens, my all-time favorite federal district court-- to announce that a lawyer appearing as a pro se litigant does not have a constitutional right to wear jeans and a baseball cap in court.

"The function of a courtroom 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 order to do so, a judge must have the authority to set reasonable limits on the conduct and behavior of litigants appearing before the court. The commonplace rule prohibiting hats in the courtroom is just one widely accepted example of such a limitation.
"As these principles may suggest, a courtroom is not a public forum for the expression of ideas. Instead, "[a] courthouse?and, especially, a courtroom?is a nonpublic forum." In such a forum, "[r]estrictions on speech?need only be reasonable and viewpoint neutral." A restriction on speech in a nonpublic forum is reasonable when "it is wholly consistent with the government's legitimate interest in preserving the property for the use to which it is lawfully dedicated." (Citations omitted.)

I'm not so sure how I feel about the notion that a courtroom is a "non-public forum"-- it seems to me that one of the small ways that our glamor profession has diminished itself over the time that I've been practicing is that it has become less open. Time was anyone could just wander into a courthouse, to watch a trial, or just look around. You still can, of course, but you have to empty your pockets, and pass through a metal detector, and if you have a phone you have to leave it, along with your pen knife and anything else. The hassle involved makes the courts less accessible, and the system, therefore, less transparent. When you consider that the courts are the most direct form of involvement most citizens have with government this is unfortunate. It seems wrong to me that people can't just go to 60 Center Street to look at the terrific rotunda, or to any of the other lavish courthouses that are out there. Public money was spent to make federal district courts as lavish looking as any Medici palace, and I would say that this is money well-spent, but people should be allowed to see where their money went. As long as the men take their baseball caps off, let 'em in I say.

Full post as published by Outside Counsel on September 25, 2009 (boomark / email).