Free speech and business decor

[Volokh, Eugene]

        Oh, I'm not saying there's a constitutional violation at the moment,
in part because I agree with Mark that the government doesn't violate the
1st Am just by investigating.  Cf., in a religious freedom context, Ohio
Civil Rights Comm'n v. Dayton Christian School, 477 U.S. 619 (1986).

        If Mark's point is simply that the Massachusetts Commission Against
Discrimination and the Boston Licensing Board are free to investigate but
must then conclude that they are powerless, under the 1st Am, to penalize
the bar for its actions, then I agree.  My question has to do with what
happens if the Commission and the Board find that the conduct *was*
unlawful.  May they then, consistently with the 1st Am, punish the bar for
it?

> -----Original Message-----
> From: Mark Tushnet [SMTP:TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU]
> Sent: Tuesday, March 07, 2000 2:04 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Free speech and business decor
>
> 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 thhe 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.
> >
> >
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