The full text of this Article may be found here.
30 Fordham Intell. Prop. Media & Ent. L.J. 493 (2020).
Article by Joyce Boland-DeVito*
oes the U.S. Supreme Court believe that the Free Speech Clause of the First Amendment includes freedom of expression in our clothing? The answer is yes! This Article will show that fashion can make a strong political statement (or misstatement) in the court of law as demonstrated by the U.S. Supreme Court’s recent decision striking down Minnesota’s ban on wearing “political apparel” to vote in Minnesota Voters Alliance v. Mansky. The discussion of this case will include quotes from J. David Breemer, Esq., the attorney who represented the Minnesota Voters Alliance. This Article will examine related U.S. Supreme Court cases that uphold Constitutional protections not just in political speech and association, but also in clothing.
If, despite the Supreme Court’s holdings in these cases, you have any doubts about whether fashion can make a strong statement with social and legal ramifications, you need only consider the court of popular opinion—for instance, social media. Social media, as well as traditional media, have openly criticized designers who have created insensitive items such as Prada’s PRADEMALIA charms, Katy Perry’s shoes, and a particular Gucci sweater—all of which appeared to portray racist black-faced images. Another issue— accusations of cultural appropriation—has impacted an African- American rapper Lil Nas X, who was accused of stealing (white) “cowboy culture,” as well as Kim Kardashian, who has been accused of appropriating West African hairstyles and of having chosen a Japanese name (“Kimono”) for a new business venture (which was eventually dropped). Also, media backlash should be expected when someone designs clothes using real fur or ivory and/or the clothing is made by children or under unsafe conditions.
The U.S. Supreme Court may continue to support our rights under the First Amendment Free Speech Clause to freedom of expression in our clothing, but that does not mean that society protects us from the social or economic ramifications from making such statements with our fashion choices. Remember that Oscar Wilde famously wrote in An Ideal Husband that “fashion is what one wears oneself. What is unfashionable is what other people wear.”
* Professor of Administration and Economics, The Collins College of Professional Studies at St. John’s University; Adjunct Professor, St. John’s University School of Law; LL.M. (Intellectual Property), J.D., M.B.A., B.S. Many thanks to Dean Katia Passerini and Dr. Almerinda Forte for their guidance. I thank my parents, John and Veronica, my husband, Vincent, and my daughter, Hope, for their love and support.