cearta.ie

the Irish for rights

If t-shirts could talk …

The Ranks in their tee-shirts… they might get you in trouble. Oh, wait a minute – they do!

Say you wanted to attend a political rally to indicate your disapproval of the speaker in a way that made your position clear but did not in fact disrupt the proceedings in any way. Why not try the age-old slogan t-shirt? Well, that’s what Jeff and Nicole Rank did when they attended a Fourth of July appearance in 2004 by President Bush at the West Virginia State Capitol wearing t-shirts critical of the president (see picture, left). There the story should have ended; but it didn’t. The Ranks were promptly arrested – and handcuffed – for their troubles! But the American Civil Liberties Union (ACLU) represented them in a case against the White House (that didn’t seem to get nearly enough coverage at the time, though there’s a wonderful article about it in the New Republic), arguing:

Two Americans went to see their president and to express their disagreement with his policies respectfully and peacefully. They were arrested at the direction of federal officials. That is precisely what the First Amendment was adopted to prevent.

Don’t take the ACLU’s word for it; the Supreme Court of the United States has said so too, in a famous First Amendment case called Cohen v California 403 U.S. 15 (1971). Cohen wore a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse, and was convicted of disturbing the peace by “offensive conduct”. But the Supreme Court reversed the conviction:

The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U.S. 357, 375-377 (1927) (Brandeis, J., concurring).

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. … (403 U.S. 15, 23-24 (1971) per Harlan J).

So it came as no surprise at all that the White House – eventually – conceded defeat and settled the Ranks’ case (see also Common Dreams | Nat Hentoff).

Reading all of this reminded me of a story that appeared in Irish newspapers last year: the headline in the Irish Independent said it all: Man sent to jail for wearing punk rock T-shirt; a Bray punk rocker, Philip Dunleavy [update: obituary here]

… who decided to dress down for a court appearance by wearing a T-shirt with the word ‘bollocks’ on it has been jailed for seven days. … He was wearing the infamous yellow T-shirt, designed by Vivienne Westwood, which said “Never Mind the Bollocks, Here’s the Sex Pistols“.

Sex Pistols tee-shirt, via Irish Independent siteThe tee-shirt replicated the sleeve of a Sex Pistols album which, ironically, had been unsuccessfully prosecuted for obscenity when it was originally released more than 30 years ago now. However, as another Irish Independent headline put it, it was a storm in a tee-shirt (pictured left, held by Dunleavy’s girlfriend Lorraine Fitzpatrick), Dunleavy spent seven nights in jail for his contempt, and provided the local paper – the Bray People – with two big stories (here and here). Bray District Court isn’t the only court where judges have reacted badly to slogan t-shirts; in 2004, a Strabane magistrate tore strips off a driver over a rude t-shirt (it was a French Connection t-shirt, and the slogan read “I live to f**k”) . One of the articles on the Bray case said:

Legal experts commenting on the case have said that Judge Connellan was perfectly within his rights to send Mr Dunleavy to jail, as he felt he was in contempt in the face of the court.

As the law now stands (see here and here), this is probably the case. But if the Irish protections of freedom of expression are gaining some teeth, could there come a time when an Irish equivalent of Cohen might allow defendants to wear their favourite t-shirts (whether they are punk rockers or slaves to French Connection fashion) without fear of being held in contempt of court. Maybe t-shirts won’t get us into such trouble in the future.

8 Responses to “If t-shirts could talk …”

  1. Ronan says:

    Eoin, I live in Wicklow and remember clearly reading these reports from the Bray People, which coincidentally acts as a repository for the more parochial and nosey types in society who have nothing better to do than read the court reports and comment on a persons character after the fact.

    While there is a constitutional right to have justice administered in public, I believe certain limitations should be applied over and above the situation today.

    The interplay between the two articles mention with DC Judges Clyne and Connelan is interesting, as it shows a general respect for the administration of law, but also a disjoin between the social norms of the day (in respect of attire) and certain prejudices that can exist on the bench.

    A well known brand at the moment is French Connection UK, who rely on the acronym FCUK on their clothing and apparel. I query whether one of our lordships knowledge of contemporaneous fashion trends would land a person in the slammer, similar to Dunleavy.

    Does proportionality apply in the context of contempt?

    Citing Costello J. in Heaney:

    ‘The objective of an impugned provision should a state have need to over ride a right (e.g., Right to Silence, Freedom of Expression or Privacy) must be of sufficient importance to warrant overriding a constitutionally protected right.

    It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:

    (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;

    (b) impair the right as little as possible;

    (c) be such that their effects on rights are proportional to the objective.’

    Surely jail time for ‘ungrounded’ contempt is infringement of a persons rights to: Freedom of expression and indeed liberty. While the proportionality test is used generally in property matters I feel that some aspect of this might work in contempt proceedings.

    The right to a fair trial in due course of law Art 38 is also impugned if an inadvertent contempt in facie curea is levied against a defendant based on dress choice.

    Lets remind ourselves of Carney J. in the Central Criminal Court. While I agree with formality and ceremony at the upper courts, the advocates in the case of DPP v. Barnes 2006 felt prejudiced owing to their own omissions with respect to the way Carney J. likes to run his courtroom.

    Of course Hardiman J., on appeal mentioned the below (in an almost admonishing fashion, where the defence counsel were concerned, and rightly so).

    Section 49 of the Courts and Courts Officers Act, 1995, provides as follows:

    “A barrister or a solicitor when appearing in any court shall not be required to wear a wig of the kind heretofore worn or any other wig of a ceremonial type�.

    What about Foy v. Registrar of Births, Deaths and Marriages? McKechnie J. showed a similar level of prejudice, albeit couched in constitutional incompatibility. I think the SC’s reversion of the matter to the lower court was indicative of an attempt to rectify the situation.

    Knowledge of contemporanous norms is critical to fairness in the administration of justice, otherwise we can all make money out of the palm trees which we could sell to the court services in the intervening period.

    Bye for now.

  2. […] general protections (Smolla instanced Cohen v California 403 US 15 (1971), discussed on this blog here) but the more diminished safeguards in school speech […]

  3. Eoin says:

    There’s a similar case in Croatia.

  4. […] This post was mentioned on Twitter by Eoin O'Dell. Eoin O'Dell said: @bmcameron @vbalasubramani what about Cohen v California 403 U.S. 15 (1971)? oh and it's happened in Ireland too http://bit.ly/83dgfE […]

  5. […] woman jailed by Chicago judge for 2 days for wearing an offensive T-shirt to court recalls my post If t-shirts could talk …, discussing a similar Irish case and a more serious US example. Cohen v California 403 US 15 (1971) […]

  6. Randy says:

    You should be able to print anything on tshirts if you want.

  7. […] can be as important as what they say. Sometimes, the sartorial expression is obvious, as where a slogan on a t-shirt makes the point. Sometimes, it’s a little more subtle, but all the more effective, as the […]

  8. […] It has been put to me that argument in favour of TDs’ sartorial expression does not adequately take into account the need to ensure respect for the Dáil (the lower house of parliament), that TDs’ failure to dress appropriately shows an unpardonable disrespect for the Dáil; and that there are many similar occasions – such as court – where respect requires appropriately formal attire. Nevertheless, just as I suspect that the move away from wigs and gowns in the Courts will be slow and gradual, so I think that the Dáil will be slow to move away from jackets and shirts and suits and ties. However, my point is that rigid conformity is not always necessary: sometimes, the circumstances dispense with the need for formality; other times, necessary expression requires that the formality be subverted. And in those latter circumstances, that expression should be respected too. […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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