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adornment and affiliation
This page provides a perspective on online censorship
by looking at the censorship of adornment: headscarves,
jewellery, tattoos and other decoration or indicators
of affiliation.
It covers -
clothing
Fin de siecle clothing reform enthusiasts such as Australia's
William Chidley
criticised restrictions on dress (or requirements that
one must be dressed, in the street, on the beach or in
the surf) as censorship and as a remnant of mediaeval
sumptuary legislation
that both regulated morals and inhibited identity
offences. Restrictions are not entirely a thing of
the past, in Australia and elsewhere.
Australian police force personnel have on occasion used
offensive behaviour provisions in state criminal codes
to arrest or threaten youths wearing 'obscene' tshirts
(eg acquittal in Police v Pfeifer (1996) 189
LSJS 123 and (1997) 68 SASR 285 of a youth charged under
the SA Summary Offences Act 1953 for wearing
a Dead Kennedys tshirt).
In principle that is not surprising: many theorists would
argue that a tshirt deserves no more (or less) protection
than a book, albeit that an unwilling consumer is not
forced to read a book as it walks down the street.
Courts have also taken exception to slogans on tshirts
worn in courtrooms, eg Re Bauskis [2006] NSWSC
908. In 1989 an Indigenous man in riot-stricken Walgett
was charged under s 4 of the Summary Offences Act
1988 (NSW) for publicly wearing a tshirt featuring
the words "Black Deaths in Police Custody" with
the image of a white arm clad in police sergeant's uniform
- an arm clutching a noose.
Courts in the US have given some recognition to other
clothing as a protected expression. Tinker v. Des
Moines Independent Community School District, for
example, concerned suspension of secondary school students
during the Vietnam War for wearing black armbands to school.
The Supreme Court ultimately reversed lower court decisions
that had favoured the school administrators, finding that
in the absence of a material and substantial disruption
of school operations the students had a protected right
to wear the armbands.
In December 2008 a Northampton (UK) magistrate imposed
a five-year Asbo on a 59-year-old man who went out in
public dressed as a schoolgirl. Peter Trigger had recurrently
waited near a primary school. The antisocial behaviour
order banned him from wearing a skirt or showing bare
legs on a school day at specific times, with Northampton
Borough Council commenting that "We appreciate that
Mr Trigger has a right to dress how he likes, but not
if it is causing distress or alarm to others, particularly
young children, which is the case here".
other expression
In Europe and elsewhere there have been arguments over
restrictions on clothing, jewellery or other symbols in
schools and the workplace.
Some organisations have sought to enforce an 'all-faiths'
restriction, for example prohibiting public display in
the workplace of crucifixes, the mogen david or wiccan
pentacle (with employees being free to wear those symbols
if they are covered up). Schools and government agencies
have placed restrictions on headscarves and other clothing,
variously claimed to be divisive or to inhibit public
safety.
Media attention has centred on highly-politicised restrictions
in France and on cases in the UK, with teenager Lydia
Playfoot for example unsuccessfully going to the English
High Court in 2007 with the claim that a school ban on
her 'purity ring' (supposedly an integral part of the
Christian faith) breaches her right to express her religious
beliefs under Article Nine of the Human Rights Act.
It is worth noting that restrictions in Germany, Sweden
and the Netherlands among other European nations have
been unsuccessfully appealed to higher courts (with those
courts rejecting claims that restrictions are a fundamental
breach of EU or UN human
rights conventions).
Kimberly Cloutier of Massachusetts sued for the right
to wear 11 earrings and eyebrow piercings while at work
as a cashier at US retailer Costco. Cloutier claimed membership
in the Church of Body Modifications, arguing that her
piercings were a form of religious expression. She ultimately
lost the case.
studies
Perspectives are offered in John Bowen's Why the French
don't like Headscarves: Islam, the State and Public Space
(Princeton: Princeton Uni Press 2007), Joan Scott's The
Politics of the Veil (Princeton: Princeton Uni 2007),
Dominic McGoldrick's Human Rights & Religion:
The Islamic Headscarf Debate in Europe (Oxford: Hart
2007), Symbolic Clothing in Schools (New York:
Continuum 2008) by Dianne Gereluk, 'Covering Islam: Burqa
and Hijab - Limits to the Human Right to Religion' by
Paul Morris in 2 Human Rights Research Journal
(2004) (PDF),
'It's not because you wear a hijab, it's because you're
Muslim: Inconsistencies in South Australia's discrimination
laws' by Anne Hewitt in QUT Law & Justice Journal
(2007) here,
'Hijab and the Limits of French Secular Republicanism'
by Robert Carle in 41(6) Society (2004) 63-68
and 'Columbine Fallout: The Long-Term Effects on Free
Expression Take Hold In Public Schools' by Robert Richards
& Clay Calvert in 83 Boston University Law Review
(2003) 1089.
Works on public school dress codes include 'Undressing
the First Amendment in Public Schools: Do Uniform Dress
Codes Violate the Students' First Amendment Rights?' by
Alison Barbarosh in 28 Loyola of Los Angeles Law Review
(1995) 1415-1451, 'School Regulation of Exotic Body Piercing'
by Karen Haase in 79 Nebraska Law Review (2000)
976-997, 'Student Rights: Can We Create Violence-Free
Schools that Are Still Free?' by Victoria Dodd in 34 New
England Law Review (2000) 623-633, 'No Shoes, No
Shirt, No Education: Dress Codes and Freedom of Expression
Behind the Postmodern Schoolhouse Gates' by Alison Myrha
in 9 Seton Hall Constitutional Law Journal (1999)
337-364, 'Students under Seige? Constitutional Considerations
for Public Schools Concerned with School Safety' by Jennifer
Barnes in 34 University of Richmond Law Review
(2000) 621-645, 'Educating Youth for Citizenship: The
Conflict Between Authority and Individual Rights in the
Public School' by Betsy Levin in 95 Yale Law Journal
(1986) 1647-1680
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