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California Restaurant Bans MAGA Hats

By Christopher Coble, Esq. on February 01, 2019 | Last updated on March 21, 2019

It's the most politically controversial fashion statement since the hippies grew their hair out. Wearing one is like putting a lightning rod on your head during a thunderstorm. And now some public accommodations are banning customers from wearing them.

Yep -- it's the iconic, red, "Make America Great Again" hat, synonymous with President Donald Trump's campaign and a particular strain of his supporters. And they're verboten at Wursthall Restaurant and Bierhaus in San Mateo, California.

"Symbol of Intolerance and Hate"

"It hasn't happened yet, but if you come to my restaurant wearing a MAGA cap, you aren't getting served," Wursthall chef and partner J. Kenji Lopez-Alt tweeted on Sunday. "Same as if you come in wearing a swastika, white hood, or any other symbol of intolerance and hate." The tweet garnered 2,100 likes and 200 retweets before it was deleted, and neither chef Lopez-Alt nor any other restaurant staff have commented further. And as of Thursday, no denials of service, protests, or other incidents have been reported.

Wursthall's ostensible anti-MAGA hat policy also garnered some criticism, so is it even legal? As a privately-owned business that is open to the public, the restaurant's ban may be on shaky ground. Generally, dress codes are enforceable, though they normally apply to shirt, shoe, and the rare coat-and-tie requirements.

The First Amendment provides protections for speech, association, and assembly in places that are open to the public, so banning all racists may be a stretch. But creating facially neutral policies regarding customer clothing -- like prohibiting customers from wearing swastikas or other clothing emblazoned with hate speech or obscenity -- can provide the basis for legally asking a disruptive customer to leave. As long as restrictions do not directly target protected classes, most dress code restrictions have been found to be legal.

But before you ban certain red headgear from your establishment, talk to a local attorney about your options.

Editor's note, February 1, 2019: The restaurant owner has since issued an apology, commenting, "Making a public statement without taking my team's thoughts into consideration was disrespectful and reckless."

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