Lawyer can’t wear baseball hat in court

Monday, June 20, 2011

A lawyer has no First Amendment or 14th Amendment due-process right to wear baseball hats and casual attire in a courtroom, a federal appeals court has ruled.

New York-based attorney Todd C. Bank wore an “Operation Desert Storm” baseball hat in the Civil Court of New York in March 2008 while handling a landlord-tenant case. Judge Anne Katz and Senior Court Clerk Jude Albano ordered him to remove the hat and admonished him about not dressing formally enough.

Bank responded with a federal lawsuit, alleging a violation of his constitutional rights. In September 2009, a federal district judge dismissed his complaint.

Bank appealed to the 2nd Circuit, which also rejected his complaint in its June 16 decision in Bank v. Katz. A three-judge panel unanimously affirmed the lower court in a summary order. The appeals court noted that speech restrictions in a courtroom are constitutional as long as they are reasonable and viewpoint-neutral.

Bank did not contend that Katz singled him out for any viewpoint he expressed, so the question boiled down to whether the restrictions were reasonable. The 2nd Circuit said they were, writing that “the presiding judge is charged with the responsibility of maintaining proper order and decorum.”

Bank also argued that the prohibition on his dress also amounted to a due-process violation. The appeals court was equally dismissive, reasoning that the restrictions “were rationally related to the legitimate governmental purpose of maintaining order and decorum in the courtroom.”

Bank told the First Amendment Center Online that he would “likely” appeal the decision. He says he remains convinced that the courts were wrong to reject his First Amendment claim.

“My understanding of the case law is that a court may restrict expressive activities only if necessary to carry out its functions,” he wrote in a response to an e-mail query.

“My wearing of my baseball hat and other casual attire did not prevent the court (that is, the housing court where my case stemmed from) from carrying out its duties, as compared, for example, to the staging of a vocal protest in a courtroom. I am also troubled that, had I been wearing my hat for religious purposes, the judge would almost surely have allowed me to do so. I think it is unfair that when two people wish to engage in the exact same behavior, one may do so if his reason is religious, while the other, who has some other reason, may not do so.”

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