Free speech and business decor

[Mark Tushnet]

One thought is this:  What's the theory according to which "launching an expedited investigation" is a free speech violation?  How confident are we that the outcome is, in the columnist's word, "preordained"?  The commissioner's comment might be taken to indicate a prejudgment on the issue of legality, in which case there might be a due process violation -- if there's ultimately a finding of illegality -- as well as a possible free speech violation.  But at the moment where's the constitutional violation?

<<< "Volokh, Eugene" <VOLOKH at MAIL.LAW.UCLA.EDU>  3/ 7  1:56p >>>
        Any thoughts on the following?

> -----Original Message-----
> From: CathyYoung1 at cs.com [SMTP:CathyYoung1 at cs.com]
> Sent: Tuesday, March 07, 2000 10:35 AM
> To:   undisclosed-recipients
> Subject:      More PC insanity
>
> Time to talk to Tom English
> By Brian McGrory, Globe Staff, 3/7/2000
>
>
> His name is Tom English, and as he sat in his lawyer's office yesterday
> morning reflecting on a life that has been torn asunder, he seemed nothing
>
> like the racist monster he has been portrayed to be.
>
>
> His salt and pepper hair is tousled in some spots, matted against his
> scalp
> in others. His face is broad, pink, and ruddy. He speaks through an
> esophageal tube because his voice box was removed during cancer surgery a
> year ago.
>
>
> ''It's a strange feeling,'' he says of the last two weeks. ''Everyone's
> talking about me, but no one's talking to me. It's like I'm in a dream. I
> have no say, and it hurts.''
>
>
> English, 62, awoke on Feb. 25 to the news in the Boston Herald that he was
>
> the worst kind of bigot - a South Boston bar owner who placed stuffed
> monkeys
> and spear-toting figurines around his tavern in a blatant mockery of Black
>
> History Month.
>
>
> Put the words ''South Boston'' together with ''blacks'' and ''racism,''
> and
> the outcome is preordained. The Boston Licensing Board now threatens to
> revoke his license. City Councilor Charles C. Yancey, who is black, said
> he
> was ''outraged by this display.'' One young woman called it an
> ''atrocity.''
>
>
> Charles E. Walker Jr., chairman of the Massachusetts Commission Against
> Discrimination, launched an ''expedited'' investigation, saying, ''This
> kind
> of conduct is deeply offensive to all decent Americans, as well as being
> illegal.'' . . .
>
> And the facts are these: Yes, there were monkeys at the bar, white,
> purple,
> and brown, as well as a dozen parrots, several hippopotamuses, a giraffe,
> a
> lion face, and an alligator - all part of English's jungle display
> intended
> to add a touch of the tropics to his bar in the throes of a Boston
> February.
>
>
> You don't believe him? Sitting in his lawyer's office, he pulled out a
> 4-inch
> stack of time-coded color snapshots of his bar in different months of the
> year. In April, he decorates with frogs because of all the rain. In July
> and
> August, he hangs dozens of fish and netting. In September, he has a pirate
>
> motif. October is Halloween, December Christmas. Around elections:
> elephants
> and donkeys. . . .
>
>
> Brian McGrory's e-mail address is mcgrory at globe.com.
>
>
> This story ran on page B01 of the Boston Globe on 3/7/2000.
> © Copyright 2000 Globe Newspaper Company.
>
>