Ruling says attorney lacks right to wear hat, jeans in court

Thursday, October 1, 2009

A New York-based attorney does not have a constitutional right to wear a hat and jeans in court, a federal district court ruled recently.

Todd C. Bank, who practices law in the Kew Gardens neighborhood of Queens in New York City, asserted that he had a First Amendment free-speech right and 14th Amendment liberty right to wear what he wanted.

The haberdashery hassle began in March 2008 when Bank, representing himself in a landlord-tenant dispute, showed up in Civil Court of the City of New York wearing jeans, a button-down shirt and a baseball hat with the words “Operation Desert Storm” on it. The message on the hat apparently had nothing to do with the case. Judge Anne Katz refused to let Bank wear the hat and told him he was dressed inappropriately for court.

The next day, Bank filed a lawsuit in federal court, asserting his constitutional claims.

“While I believe that the First Amendment protects my activity, the more underlying philosophical issue is that I believe, like Thomas Paine said, that government is a necessary evil, and that it should therefore exercise only that authority which is absolutely necessary to carry out its duties,” Bank told the First Amendment Center Online.

“In this case, the judge's role is to adjudicate legal disputes, which should not be affected by whether I wear a tuxedo or a ripped pair of sweatpants. A government official, by definition, speaks for the society, and so while the judge is, of course, one person, her telling me not to wear a hat is the equivalent of society telling me not to do so, which is the same as telling me to conform to an arbitrary standard. Custom is the only basis on which it is said that one should dress a certain way in court; absent practical/functional concerns, society has no moral authority over whether I wear a hat in court.”

But on Sept. 24, U.S. District Judge Nicholas G. Garaufis disagreed with Bank’s constitutional claims and dismissed his suit. The judge wrote in Bank v. Katz that a “courtroom is not a public forum for the expression of ideas” but rather a nonpublic forum where rules need only be reasonable and viewpoint-neutral.

Garaufis said the regulation of dress in a courtroom and the ban on hats and jeans was “reasonably related to the maintenance of courtroom civility and respect for the judicial process.” He said “requiring litigants to remove their hats out of respect for this process is reasonably calculated to advance those valid interests.”

The judge also found that banning the hat did not constitute viewpoint discrimination because “there is no allegation that any restriction on Plaintiff’s attire was imposed based upon Plaintiff’s viewpoint.” Garaufis pointed out that the ban against hats was apparently across the board, regardless of any message they might bear.

“Without any allegation of viewpoint discrimination, the Complaint cannot survive a motion to dismiss,” the judge wrote.

The judge then addressed Bank’s argument that the regulation of his attire violated his 14th Amendment guaranty of liberty. Bank argued that the amendment establishes a general liberty interest that includes individuals’ freedom to wear what they choose.

However, the judge found that “Plaintiff’s desire to make a fashion statement is far from a fundamental right,” and with no fundamental right involved, the court’s rule is valid as long it is rational and not arbitrary. The judge determined that the rule was rationally related to several legitimate interests, including “maintaining proper decorum, etiquette and respect for the judicial process.”

Garaufis concluded: “When he is not in court, Plaintiff is free to express the ideas he wishes to express, and to wear the attire he chooses to wear. When he is appearing as a litigant in civil court, however, he should expect that his choice of expressive attire will be limited in accordance with reasonable standards of decorum.”

Bank said he would appeal the decision. “There is case law that holds that, while a court is a non-public forum, a judge may restrict First Amendment activity only to the extent that such activity would interfere with the role of the judge, which is to adjudicate legal disputes,” he said. “The judge simply did not address this standard.”

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