Shea and I have blogged before about and lawyer attire and juror attire. I’ve even touched briefly on defendants’ attire, but none of us have ever addressed a judge’s ability to set minimum clothing standards for defendants. That issue has reared its head in Fayetteville, where a district court judge recently held a defendant in contempt for wearing several large voodoo necklaces. The local news story, with a picture, is here, and a transcript of a recording of the incident is here. We usually try not to comment on pending North Carolina cases. I don’t know whether this one is still pending, as it sounds like the defendant has been released from a brief period of custody, but I’ll still refrain from expressing an opinion on the particular case. My colleague Michael Crowell is quoted in the news article as saying that a “court needs to be sensitive to religious issues in imposing dress requirements in the courtroom.” At a minimum, he explains, “when a potential religious basis for dress appears the court should allow an opportunity to explain and should inquire whether the religious belief is sincere and bona fide. When the attire is not clearly disruptive, it should be allowed.” That sounds right to me. Although judges have considerable leeway to control their courtrooms, they typically should not restrict defendants’ apparel choices without a good reason. Clothing can be expressive and so may implicate First Amendment values. First Amendment concerns are doubly implicated when the apparel in question is [...]
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