The Blog

The Blog is now retired.

My posts after May 2014 on issues of “dressing constitutionally” can be found over at Constitutional Law Professors Blog and at the CUNY Academic Commons.

The posts from May 2013 – May 2014 remain available and searchable.

Parting shot

Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via


#YesAllWomen: Dressing provocatively

The killer in a rampage near Santa Barbara, California left behind writings and videos expounding upon his hatred for women and his desire for retaliation.

Although the killer has been the subject of more than a few admiring posts, as part of the discussion of misogyny, the usual explanation seemed to be “not all men” are like him.  This was countered by a “yes all women” reply on twitter, the notion being that while not all men are guilty of misogyny, all women experience it.  The “Yes All Women” hashtag quickly gained prominence, with women providing experiences and observations, with some support and some criticism from tweets seemingly from men.

Perhaps not surprisingly, more than a few tweets describing women’s experiences focused on the same issues discussed in the “dressing provocatively” section of Dressing Constitutionality Here is a small sampling of the tweets:





India Supreme Court Recognizes TG Constitutional Rights Including Dress

The India Supreme Court interpreted its constitution to provide equality and liberty rights to transgender persons including the right to be recognized as a “third gender” and be free from the gender binary – – – the case is National Legal Services v. India and there is a full discussion over on the Constitutional Law Professors Blog here.

Importantly, the India Supreme Court has something to say about constitutional protections for dress.405px-HijraPanscheelParkNewDelhiIndia

The India Supreme Court noted that Article 19(1) of the Constitution of India “guarantees certain fundamental rights” including rights to speech and expression and that

Self-identified gender can be expressed through dress, words, action or behavior or any other form. No restriction can be placed on one’s personal appearance or choice of dressing, subject to the restrictions contained in Article 19(2) of the Constitution.

The “balancing” in Article 19(2) allows “reasonable restrictions” “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

Interestingly, the Court’s opinion references two US cases from state courts (both discussed in Dressing Constitutionally):

We may, in this connection, refer to few judgments of the US Supreme Courts on the rights of TG’s freedom of expression. The Supreme Court of the State of Illinois in the City of Chicago v. Wilson et al., 75 III.2d 525(1978) struck down the municipal law prohibiting cross-dressing, and held as follows “-

“the notion that the State can regulate one’s personal appearance, unconfined by any constitutional strictures whatsoever, is fundamentally inconsistent with “values of privacy, self-identity, autonomy and personal integrity that ….. the Constitution was designed to protect.”

In Doe v. Yunits et al., 2000 WL33162199 (Mass. Super.), the Superior Court of Massachusetts, upheld the right of a person to wear school dress that matches her gender identity as part of protected speech and expression and observed as follows :-

“by dressing in clothing and accessories traditionally associated with the female gender, she is expressing her identification with the gender. In addition, plaintiff’s ability to express herself and her gender identity through dress is important for her health and well- being. Therefore, plaintiff’s expression is not merely a personal preference but a necessary symbol of her identity.”

It then concluded:

Principles referred to above clearly indicate that the freedom of expression guaranteed under Article 19(1)(a) includes the freedom to express one’s chosen gender identity through varied ways and means by way of expression, speech, mannerism, clothing etc.

 The opinion could provide a broad basis for gendered and degendered clothing freedom and equality.  

Judge Bans Spectator Symbols in Cecily McMillan’s Trial

In the high-profile criminal trial of Cecily McMillan for assaulting a police officer, perhaps in connection with Occupy Wall Street, McMillan reportedly claims that a police officer grabbed her breast causing bruising.   Given this claim, spectators in support of McMillan were reportedly “wearing a pink hand over their right breast” and instructed by the judge that they could not so during the trial.

Cecily-McMillan-pink-hand-protest-e1396915806412The banning of spectator symbolic speech, such as a graphic symbol, by a judge raises the specter of a First Amendment claim.  In some cases, this First Amendment claim must be weighed against a criminal defendant’s Sixth Amendment right to an “impartial jury.”  As I explored in Dressing Constitutionally, one such case is Carey v. Musladin, in which spectators were wearing buttons with pictures of the victim.  Although the 2006 opinion in Carey was procedural,  Justice Souter concurring wrote to express his view that the First Amendment interests of the spectators was not “intuitively strong.”   In a New York case, involving wearing corsages to support the victim, a trial judge  stated that while free expression was at the “very core of our organized democratic society,” it had no place in the courtroom, a “holy shrine of impartiality” that was clearly committed to special and defined purposes and not the “airing of general grievances.”

Yet when the support is for the defendant and thus would not interfere with the defendant’s right to an impartial trial, the support for the banning of symbolic speech is shakier.  One example is especially striking.  In the high profile ‘Central Park Jogger’ criminal prosecution, the trial judge “barred a spectator-brother of one of defendants from wearing a black sweatshirt with the letters emblemized in white, ‘My Brother Antron McCray Is Innocent.’”  As it turns out, that sweatshirt was right.

The better view is to allow a spectator’s First Amendment rights to symbolic expression when it does not impair the criminal defendant’s right to an impartial trial. 

[image via]

Another (Unconstitutional) Ban on Saggy Pants

This one is from the Jefferson Davis Parish in Louisiana.  Named after the President of the Confederacy, the parish has now reportedly adopted a municipal ordinance banning “saggy pants” including showing underwear. (The Jefferson Davis Parish municipal code is only current to December 2013).


Such a ban is most likely unconstitutional – – – especially if it criminalizes the showing of “underwear.”  It can also be a masquerade for racially discriminatory policing.

There’s more on the unconstitutionality of criminalizing “saggy pants” in Dressing Constitutionally including cases in which courts have held such laws unconstitutional under the Fourteenth Amendment’s Due Process Clause and the First Amendment.  In the same chapter, there is also an extensive discussion of prohibiting the wearing of the Confederate flag. 

[image via]

Sitting (Senior) Federal District Judge on the Dress of Women Attorneys

On his blog, Hercules and the Umpire, United States District Judge Richard George Kopf, writes:

True story. Around these parts there is a wonderfully talented and very pretty female lawyer who is in her late twenties. She is brilliant, she writes well, she speaks eloquently, she is zealous but not overly so, she is always prepared, she treats others, including her opponents, with civility and respect, she wears very short skirts and shows lots of her ample chest. I especially appreciate the last two attributes.

In a recent case involving this fine young lawyer every female law clerk in the building slipped in and out of the courtroom to observe her. I am not exaggerating. I later learned that word had gotten around about this lawyer’s dress. Acknowledging that the lawyer was really good, the consensus of the sisterhood was uniformly critical. “Unprofessional” was the word used most often. To a woman, the law clerks seethed and sneered. They were truly upset.

From the foregoing, and in my continuing effort to educate the bar, I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtain, an ignorant slut behind your back, tone it down.

Robert_Collier_Vanity_Fair_19_February_1870The blog post is entitled “On being a dirty old man and how young women lawyers dress.” 

Judge Kopf is responding – at least in part –  to a recent post on, Amanda Hess, Female Lawyers Who Dress Too “Sexy” Are Apparently a “Huge Problem” in the Courtroom, Slate (March 21, 2014).  

But it would seem that it’s Judge Kopf who is part of the “huge problem,” although note that he does try to shift some of the responsibility to women and the ways they police professional attire among themselves. 


Remembering the Triangle Shirtwaist Factory Fire

March 25 marks the anniversary of the tragedy.

From Dressing Constitutionally:

273px-Paris_waist_from_CharvetShirtwaists – – – women’s blouses worn over plain long skirts in a “Gibson Girl” look – – – were extraordinarily popular, fashionable, and viewed as both democratic and a symbol of women’s increasing equality.   The system for manufacturing the blouses, as with other items of clothing, included tenement sweatshops in which workers were “sweated” by contractors, as well as loft factories in which long rows of sewing machines could be powered by a single motor.    There were eight such rows on the ninth floor of the Triangle Shirtwaist Factory building when the fire broke out on the floor below, igniting discarded material and quickly spreading through the three floors of the factory.  A combination of safety hazards contributed to the high death toll: crowded shop floor, lack of fire drill training, fire trucks in New York City that could only reach the seventh floor, rickety fire escapes, inoperable elevators, and doors locked from the outside.  One hundred forty-six people, mostly young women, died.   The Triangle Shirtwaist fire became emblematic not only because of the number of deaths, but because it was a very public event, with a number of women jumping from the flames to the street below during the fire, bodies lined up on the sidewalk for identification afterwards, and newspaper reports of skeletons bent over sewing machines.  It prompted a large commemoration, an unsuccessful prosecution of the shirtwaist “kings,” and a state investigative commission that spearheaded a number of legislative reforms aimed at safety including a fifty-four hour working week for children, minors, and women.

There are numerous events commemorating the tragedy and the continuing struggle for the rights of garment workers and other workers.

save the date.indd

Upskirting: Of Crime and Constitutionality in Massachusetts

In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state’s statutory prohibition of “secretly photographing or videotaping a person ‘who is nude or partially nude,'” G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women’s skirts (“upskirting”).


The defendant had argued that if § 105 (b ) “criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad,” but because the court “concluded that § 105 (b ) does not criminalize the defendant’s alleged conduct,” it did not reach the constitutional questions.

Yet, as in many cases, the court’s statutory interpretation does occur in the shadow of the constitutional challenge.  The court reasoned that the statute “does not penalize the secret photographing of partial nudity, but of “a person who is ... partially nude” (emphasis in original).  Courts have long struggled with definitions of “nudity” – – – recall the United States Supreme Court’s recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor. [More on this issue is in Dressing Constitutionally].

Additionally, the court reasoned that the statutory element of in “such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed” did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley.  The court rejected the Commonwealth’s argument emphasizing the “so” in “so photographed” – – – that “because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt” by interpreting “so” as simply referential.

The court concluded that at the

core of the Commonwealth’s argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.

And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of “upskirting” conduct at issue in the case.  Given the court’s opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.

[image of Marilyn Monroe’s skirt via; cross-posted at Constitutional Law Professors Blog]

Executive Dressing


How “professional” should the President on the United States dress when he’s on the telephone to another world leader discussing a crisis?

According to the Daily News:  “On Saturday, the President spoke with Putin for 90 minutes after Russian troops entered the Ukraine’s Crimean Peninsula, but many detractors took to social media to rebuke his informal attire.”

In case you were wondering, despite some criticisms of George Washington’s dress (as too fancy, as discussed in Dressing Constitutionally), there is nothing in the Constitution about presidential attire.