A DISCUSSION OF LAW AND JOURNALISM

What Not To Wear: Courtroom Edition

By Jillian Raines

Political buttons, hats, jeans and shirts referencing female genitalia have all previously been contested when worn in U.S. courtrooms. In New York, a recent incident added another item to the “What Not To Wear” list: T-shirts with the F word.

According to a New York Post article, a 19-year-old female alternate juror was excused from duty when the judge noticed she was wearing a shirt that read “Who the f*** is Kanye West?”

The Post reported that the young woman, Nneka Eneorj, claimed it was “supposed to be a First Amendment issue” which provided her the right to wear anything she wanted in court. But since she did not press the matter further (read: She was content being released from jury duty), it seems that neither did The Post reporter.

This, of course, leaves the reader wondering: Were Miss. Eneorj’s First Amendment protections actually violated when she was ejected from the courtroom?

We all know you can’t falsely shout “Fire” in a crowded theater, so there are instances in which expression can be curtailed.  But when?  And why?

Some background is in order.

In determining whether it is legally permissible to limit a person’s First Amendment rights, legal concepts known as the “time, place and manner considerations” frequently come into play. These provide for situations when state and federal governments may restrict not the individual expression, but the time, place and manner of that expression. For such a restrictions to be valid, alternative outlets for that expression must exist.

When a time restriction applies, expression may be restricted due to legitimate societal concerns – traffic congestion and crowd control are often cited as justified reasons for restricting when speech is permissible. The manner of expression may also be restricted when there is a strong government interest at play outweighing the individual’s interest. Manner restrictions generally relate to symbolic speech (expression that is not spoken or written). A federal regulation prohibiting sleeping in certain national parks is an example of a permissible manner restriction – it was in the government’s interest to conserve park property.

And lastly, and as was the case in our courtroom sartorial smackdown courtroom, restrictions may exist as to the place people express themselves. There are three categories that dictate where the government may regulate speech: public forums, limited public forums, and nonpublic forums. (The less public, the more regulation is permitted).

In nonpublic forums, restrictions on freedom of expression are acceptable if they are both reasonable and viewpoint neutral. Clearing up what it means to be reasonable, Make the Road by Walking, Inc. v. Turner (a 2004 Second Circuit case) held restrictions in nonpublic forums are reasonable so long as they are “wholly consistent with the government’s legitimate interest in preserving the property for the use to which it is lawfully dedicated.”

In a 1997 case about whether a lawyer could wear a political button in court, Berner v. Delahanty, the judge explained that, “[a] courthouse – and, especially, a courtroom – is a nonpublic forum.” More recently in Brooklyn, the U.S. District Judge in Bank v. Katz wrote that “[a] courtroom is not a public forum for the expression of ideas.”

In the case of Bank v. Katz, the court held that restricting what litigants can wear in court is reasonable since it promotes the legitimacy of the proceeding, and that prohibiting inappropriate attire is a way of reminding those involved “that the judicial process deserves to be approached with respect.”  (That case was about a comparatively benign jeans and shirt ensemble a lawyer wore to court). And while Miss. Eneorj was in the hotspot as an alternate juror (not a party to the case or a lawyer), it the logic of the Bank case would seem to apply to all attendees at courtroom proceedings.

Going further, Bank also hit on what it means for restrictions to be viewpoint neutral. Under Bank, those that are discriminatory against a particular viewpoint will not fly. But with Miss. Eneorj, that is definitely not the case. The judge did not permit “Who the f*** is Stephen Colbert?” shirts and ban this young lady’s T shirt query.

If anything, Miss. Eneorj should probably be thankful she was not treated like 20-year-old Jennifer LaPenta who was almost held for three days in contempt in an Illinois court for wearing a T-shirt that read: “I have the pussy so I make the rules.” LaPenta wasn’t a lawyer, juror or party to the suit – she was only there as a result of driving her friend to court to settle traffic tickets. While an appeal ultimately held that she was not given the chance to “alter her behavior” (she had offered to take it off and was still held in contempt), there is no question that her shirt, too, is on the list of what not to wear to court.

In fact, though the legal analysis can be tricky, the actual question of what not to wear to court mostly depends on good old common sense.

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