May Massachusetts law bar racially offensive displays in bars?

[Daniel Hoffman]

May Massachusetts law bar racially offensive displays in bars?If the First Amendment protects speech like this,  it must also protect more familiar forms of obscenity.  For surely, racially offensive displays appeal to an  unhealthy passion, threaten to aggravate an especially serious social harm, and often if not always transgress accepted community norms.  Nor do they, as a class, have a redeeming social value that sexual displays do not.  So it seems that the law is valid on its face and the facts present a legitimate jury question--unless sexual expression is constitutionally unique.  But how could it be?
            Daniel Hoffman 
  ----- Original Message ----- 
  From: Volokh, Eugene 
  To: CONLAWPROF at listserv.ucla.edu 
  Sent: Tuesday, March 14, 2000 7:36 PM
  Subject: May Massachusetts law bar racially offensive displays in bars?


          I just got material from the Mass. Comm'n Against Discrimination on that Boston bar case.  It turns out that the MCAD, though it's still investigating the matter, has itself filed a formal complaint against the bar -- this isn't just some third party filing the complaint, but rather the Massachusetts government.  The relevant parts of the complaint state:

          "1. . . .  This complaint . . . charg[es] Respondent[] Tom English's Cottage . . . with discrimination on the basis of race in a place of public accommodation. . . .

          "7.  Upon information and belief, Respondents maintained a display during the month of February that includes at least twenty (20) stuffed monkeys, some of which are hanging from vines in various locations throughout the bar.  The display also includes a large stuffed gorilla wearing a crown.  Upon information and belief, the crowned gorilla was intended as a derogatory reference to Martin Luther King, Jr.

          "8.  Upon information and belief, the display also included a wooden figure holding a spear and coconuts painted with black faces and large red lips.

          "9.  Information obtianed by the Commission indicates that this display was erected by Respondents for the purpose of mocking the celebration of Black History Month in February."

          Charles E. Walker Jr., chairman of the MCAD, was quoted in the Boston Globe (Mar. 10) as saying that the MCAD is investigating "whether the display was set up to mock Black History Month and Martin Luther King or was simply an innocuous display not identifiable with any race or nationality.  This is a business that caters to the public.  We have laws to follow through on."  Earlier, Walker said "This kind of conduct is deeply offensive to all decent Americans, as well as being illegal."  (Boston Globe, Mar. 7.)  The Mar. 10 article also says, seemingly as a paraphrase of Walker (though I'm not completely sure) that "Under the law, creating a hostile environment -- one that ridicules or creates a racial stereotype and makes certain people feel unwelcome -- counts as discrimination and is prohibited."  My sense is that the MCAD's main question now isn't whether the display would be illegal if it were a comment on Black History Month and Martin Luther King -- they seem to be assuming that it would be.  Rather, it's whether or not the display was indeed so intended.

          Note also that Daniel F. Pokaski, chairman of the Boston Licensing Board, which voted unanimously to hold a public hearing on this issue -- both the Board (which controls liquor licenses) and the MCAD are thus both involved -- has been quoted as saying that "The board has zero tolerance for any type of prejudice. . . .  If they were running something that's offensive to the community, we can take action, up to and including taking away their licenses."  (Boston Globe, Mar. 3.)  Finally, the Boston Globe (Mar. 14, 2000) has editorialized that "[a] liquor license 'is a privilege, not a right,'" that "the Licensing Board forbids offensive posters and displays," "State law forbids discrimination in places of public accommodation," and that thus presumably that the display is illegal.  None of the articles that the MCAD faxed to us in response to the library's request even mentions the First Amendment.

          So, given this extra detail, what do the list members think?  May Massachusetts law bar racially offensive displays in bars?

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