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.
Cover of Puck magazine, 6 April 1901. “Columbia’s Easter bonnet / Ehrhart after sketch by Dalrymple.” via
This month, popular clothing retailer H&M removed faux feather headdresses from their shelves in Canada. As reported, a spokesperson for H&M said three customers complained that the headdresses were culturally insensitive, prompting the company to remove the product.
One H&M customer explained her complaint to reporters: “Headdresses are a sign of respect and leadership … You wouldn’t find a colorful hijab or a colorful yarmulke on the shelves as some sort of fashion accessory to wear out to a nightclub or to a music festival.”
Online reaction to the news has varied — some see the accessory as a harmless nod to aboriginal culture, while others rebuke H&M as cheapening the First Nations’ heritage in order to make a quick buck, essentially profiting off a people’s history and traditions by turning them into an aesthetic movement.
H&M is not the only company to receive negative press over offensive appropriation of indigenous peoples’ culture. In the last two years, several large retailers, including Victoria Secret and Forever 21, have elicited outrage over insensitive use and mockery of Native American traditions and symbols.
In 2011, the Navajo Nation brought legal action against retail giant Urban Outfitters for the use of “Navajo” to sell its products, or as Sasha Houston Brown of the Santee Sioux Nation wrote, a “mass marketed collection of distasteful and racially demeaning apparel and décor.” Brown and the Navajo Nation argued that items like the “Navajo Hipster Panty” were trademark infringement and violate the Federal Indian Arts and Crafts Act of 1990, which prohibits one from falsely representing an item as made by Native Americans.
Given the popularity of the trend and a long history of exploitation of indigenous cultures and histories, it is unlikely that H&M will be the last to receive the charge of cultural insensitivity. But perhaps there is recourse through the legal system in addition to publicly shaming such companies for their serious fashion faux pas.
It may have sounded preposterous to many when pundit Geraldo Rivera first contended that the clothing worn by the victim of a fatal shooting – – – a hoodie – – – was “as much responsible” for the victim Trayvon Martin’s death as George Zimmerman, the killer, was. However, with the acquittal of George Zimmerman, Rivera took the occasion to gloat:
I was right about the hoodie wasn’t I? I hate to brag, but I got criticized by every pundit in America when I said Trayvon Martin would be alive today but for the fact that he was wearing thug wear – he was wearing the hoodie. Turns out now that we look at George Zimmerman’s interviews with the police; he didn’t profile Trayvon Martin because he was black, he profiled him because he was wearing a hoodie.
Whether or not a hoodie can be characterized as “thug gear” is not really the issue. Instead, this is yet another example of how racism is recalibrated and justified as a matter of style and dress. It is similar to the criminalization of “saggy pants” and “gang attire” that disproportionately effects young men of color. And it is not dissimilar to blaming women who are victims of sexual assault for their “provocative” dress.
Protesters in support of Trayvon Martin have adopted the hoodie, which is now becoming a symbol not of “thug wear” but of the continuing struggle for racial justice.
A man calling himself “Crimson Fist” and a woman, “Meta Data” reportedly like to wear masks and costumes while “patrolling” the streets in an Atlanta neighborhood with the intent of foiling crime.
Here’s a video featuring their efforts:
http://www.youtube.com/watch?v=2WMp2qTFTes
The problem is that they may very well be violating a state criminal statute. Georgia statute §16-11-38 criminalizes the wearing of a “mask, hood, or device which conceals identity of wearer” in a public place. While there are a few exceptions – – – Hallowe’en and umpire masks – – – none seem to apply to the Atlanta duo.
Such anti-masking statutes have several rationales related to the prevention and identification of crime, and in the South they are often closely related to anti-Klan efforts. Constitutional challenges to such statutes, usually on the basis of First Amendment free expression, have had mixed results. The initial hurdle is showing that there is some sort of protected expression intended by the wearer which would be understood by observers. This might be a high hurdle indeed for Mr. Fist and Ms. Data.
Moreover, if the crime-stopping pair are tolerated by law enforcement, later arrests – – – say of protesters wearing Guy Fawkes masks – – – will be susceptible to claims of viewpoint discrimination by the police under the First Amendment.
A new media campaign uses ” the fedora as a metaphor for the many hats that women wear” and a “symbol of the need for immigration reform that treats women fairly.” The well known fashion photographer Albert Watson is spearheading “fedoras4fairness” as the video below explains.
Hats, of course, have featured prominently in nation-building. William Penn’s hat and the Elizabethan Cap Act are but two examples.
(hat/tip Janet Calvo)
The intertwining of our clothes and our Constitution raise fundamental questions of hierarchy, sexuality, and democracy. From our hairstyles to our shoes, constitutional considerations both constrain and confirm our daily choices. In turn, our attire and appearance provide multilayered perspectives on the United States Constitution and its interpretations. Our garments often raise First Amendment issues of expression or religion, but they also prompt questions of equality on the basis of gender, race, and sexuality. At work, in court, in schools, in prisons, and on the streets, our clothes and grooming provoke constitutional controversies. Additionally, the production, trade, and consumption of apparel implicate constitutional concerns including colonial sumptuary laws, slavery, wage and hour laws, and current notions of free trade. The regulation of what we wear – or don’t – is ubiquitous. From a noted constitutional scholar and commentator, this book examines the rights to expression and equality, as well as the restraints on government power, as they both limit and allow control of our most personal choices of attire and grooming.
See the Table of Contents and Read the Introduction here
US BOOK LAUNCH/PRESENTATION at CUNY LAW September 19, 2013
CANADA Book Launch/Presentation at Osgoode Hall September 23, 2013
UK Book Launch/Presentation: November 26, 2013Listen to a 5 minute interview with Jacki Lyden aired on NPR’s ALL THINGS CONSIDERED here; a 12 minute interview with Mocrieff aired on NewsTalk IRISH radio here (starts at 35:00); a 60 minute interview on NPR’s The Diane Rehm Show here; a 20 minute interview with Brian Lehrer of WNYC here; a 15 minute interview on LA’s KPCC “AirTalk” with Larry Mantle on school dress codes here; a 60 minute discussion on Wisconsin Public Radio’s The Joy Cardin Show here; a 15 minute discussion with Margaret Ramirez on CUNY’s “Book Beat” here.
Read an interview with Carrie Murphy on the fashion site Refinery29 here; an interview on UK’s LawBore here; a BBC article on the book here; a review by Dean and Professor Kim Brooks in Jotwell here.
BUY THE BOOK
at your local independent bookstore,
direct from Cambridge University Press (PB US $32.99),
or as an e-book (Kindle app) (US less than $15)
