Halloween and the Law: Not Every Place Has to Tolerate Your Costume

Boo! Photograph by Getty Images

In the small French town of Vendargues, no one over the age of 12 is allowed to wear clown makeup or costumes today. In contrast, no reported anti-clown ordinances have cropped up this year in the U.S. But that doesn’t mean you can wear your Halloween costume wherever you want. Below, a few legal fine points to consider:

Can I wear my costume on the street? Probably. “People can wear what they want on the street so long as they do not violate public indecency laws,” says Erwin Chemerinsky, dean of the University of California at Irvine School of Law. Some states and municipalities have passed anti-mask laws; New York State’s 19th century statute was used to bring charges against Occupy Wall Street activists. But many states have exceptions for Halloween and for kids.

Can I wear my costume to the corner store? Not if management doesn’t want you to. “A private store can regulate its customers so long as it does not discriminate on a prohibited basis, such as race, religion, sex, and in many states like California, sexual orientation,” Chemerinsky says. Because the First Amendment generally binds the government, not private companies, it’s up to the owner whether goblins, ghouls, or zombies are welcome.

Can I wear my costume to school? That’s probably up to the principal. “The First Amendment does not apply in private schools, so no student [or teacher] has a ‘right’ to wear a costume in those places,” says Mary-Rose Papandrea, a professor at Boston College Law School.

Public school students do have some First Amendment rights, but their principals have a lot of leeway. Courts have held, notes Georgetown Law professor Rebecca Tushnet, that “schools can make rules to preserve the learning environment; although a nondisruptive symbol like a black armband is protected, it’s hard to imagine a court extending that to a full costume.”

Can I wear my costume to work? Probably not. “Historically, especially in the private-sector workplace, there’s almost no protection for employees,” says Paul Secunda, who directs the labor and employment law program at Marquette University. “They can be fired for good reason, bad reason, no reason at all,” including for what they wear to work.

Even in the public sector, where the First Amendment does apply, courts have generally sided with management when it comes to how workers dress at work. “Earrings, tattoos, long hair, clothes—these cases made their way through the Supreme Court in the early to mid-’70s with all the hippies and everything,” says Secunda. “And pretty early on, the court said there’s really no constitutional right here to self-expression.”

There is a potential exception: A company that punished a group of employees who dressed up as an act of protest against their working conditions, or allowed workers to wear anti-union costumes but not pro-union ones, could run afoul of federal labor law. Costumed protests aren’t unheard of: Last Halloween, an activist employee of the pharmaceutical company McKesson alleged he was interrogated and suspended because he showed up to the company party dressed up as the chief executive officer.

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