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?
This is the lesson of Bank v. Katz, a case decided last Thursday by Judge Nicholas Garaufis of the U.S. District Court for the Eastern District of New York. Attorney Todd Bank showed up in a state court in Queens in March 2008 wearing jeans and a baseball cap bearing the words “Operation Desert Storm.” The presiding judge, Judge Anne Katz, told Bank he was not dressed appropriately for court, and the court clerk told him to remove his hat. Bank responded in the logical way, by suing both of them for allegedly violating his constitutional rights. He lost.
First Amendment rights are not absolute, Judge Garaufis pointed out in his ruling, and a courtroom is not a public forum. Restrictions on speech in a nonpublic forum need only be “reasonable” and “viewpoint neutral.” The judge noted that Bank appeared to concede that the headwear restriction was a standard court rule and did not claim Judge Katz had been discriminating against his hat-borne message. (“Plaintiff does not allege, for example, that a Queens judge prohibited only Yankees hats from her courtroom, or that hats with pro-war messages were permitted while anti-war hats were not.”) Judge Garaufis found that the courtroom-attire requirement was reasonable because of the governmental interest in having litigants and attorneys show sufficient respect for the court that they not show up in “clothes they might have worn to a baseball game.”
The judge also rejected Bank’s argument that he had an enforceable due-process “liberty interest” in his choice of courtroom attire. Courts have recognized a liberty interest in one’s personal appearance, but in the courtroom context, Judge Garaufis held, “Plaintiff’s desire to make a fashion statement is far from a fundamental right.”
In a footnote, the court noted that the result might be different if an individual claimed a right to wear a hat (or, more likely, a skullcap or turban) for religious reasons, because that would implicate a fundamental right. I am very much looking forward to a Yankees fan trying to take advantage of this loophole in a future case.