Washington Markup

Hoodies and Congressional Expression

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 5:04pm

It was hard to miss on TV or online yesterday the spectacle of Democratic Congressman Bobby Rush of Chicago being ejected from the House floor for wearing a hooded sweatshirt.

After taking off his jacket and raising the hood over his head during a speech in tribute to Florida shooting victim Trayvon Martin, the presiding officer instructed the Sergeant-at-Arms to give Rush the boot, ostensibly to enforce the House rules on decorum. Now we all know you can’t wear hats while Congress is in session.

The larger question here isn’t whether a hoodie is a hat. I’m more interested in looking at Rush getting the bum’s rush from a First Amendment perspective.

Rush was engaged in the purest form of expression. He donned the hood to protest racial profiling, and in response to comments in the media that Martin was shot because the hoodie he was wearing made him look suspicious.

Second, Rush made the move in the middle of a floor speech. His statement was no more spirited than the average speech one sees on C-SPAN. There was nothing truly disruptive or obscene in the speech that justified ejection (for the record, the presiding officer cited Clause Five of Rule XVII of the House Rules, which you can read here).

The House has broad discretion to set rules for decorum and debate, which serve the ends of the First Amendment by protecting free and fair deliberation in the nation’s legislature. That said, however, debate in Congress is not something accomplished through the spoken word alone.

Indeed, C-SPAN is often rife with shameless theater. Members of Congress often use props, posters and graphs when speaking on the floor, and they, like Rush, use clothing to make a point. The late Senator Ted Stevens used to wear an Incredible Hulk tie for particularly important votes, for instance, and lots of members wear U.S. flag ties).

At the very least here, the presiding officer could have handled the situation with more finesse. He used an arcane rule of decorum to shut down a highly effective and persuasive speech about a matter of vital national import: racial profiling.

Ironically, the use of the rule just made it a matter of national news, not to mention more than 600,000 hits on YouTube, which is all to the good, at least for public awareness and the broader debate. Rush might have had his speech cut short unfairly, but he’s again elevated the discussion of what happened down in Florida, and we applaud him for that.

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