A Hostile Play Environment

[Barksdale, Yvette]

Marty Lederman writes:

        "7.  A bar owner ensures that black patrons are served the same food
as white patrons, at the same prices, with the same "extras," with no
disparate "wait time" between courses, etc.; but nevertheless puts up the
displays at issue in the Massachusetts case, without any evidence that the
displays are intended to cause black patrons any discomfort, but with some
evidence that the bar owner simply wishes to share his racist views with any
patrons who are receptive to them.
> Surprise:  I agree with Eugene that No. (7) cannot constitutionally be
> prohibited (or at the very least that it would raise serious
> constitutional concerns)....
>
        I agree with you Marty that the threat, if any,  to the first
amendment is not earthshattering, but I think at  least some public
accomodations cases in category 7 should survive.

        The problem with using a purpose standard in this context (also see
Michael McConnell Rule 1) - i.e., Did the bar owner purposefully seek to
undertreat black customers  because of their race is 1) it misprises the
harm - which is the deprivation to the black customer of equal public
accomodations, which doesn't change based upon the subjective state of mind
of the owner. 2)that it provides too easy a defense to the bar owner who is
intentionally discriminating on the basis of race

        1) Defenses. The bar owner in ex. 6 (one who purposefully puts up
the display to exclude blacks) - knowing that example 6 is unlawful need
only say  -my intent was not to exclude blacks but simply to present my
racist views, and to end up in ex. 7 therefore, have a complete defense (how
do you prove intent was otherwise here?)   So if we completely shield 7, we
end up shielding 6 as well, leaving only 5 within the law (case of really
stupid bar owner who doesn't know enough to keep his/er mouth shut.)

        2) Harm involved. How is example 5, 6 or 7 experienced differently
by the black customer - Whether the bar owner says - I don't want blacks
here but Im forced to give them service, or the bar owner says nothing and
puts up the display of racist images intending to exclude blacks, or says
nothing and puts up the display of racist images only intending to express
racist views,  the black customer has the same  experience at the bar, s/he
has a markedly worse (abysmal) experience   than white customers because of
his/er  race and thus is deprived of equal public accommodations. Why should
the subjective state of mind of the bar owner be the sole basis upon which
we determine whether relief is granted?

        At the same time, you obviously don't want to prohibit speech about
race from these establishments. I think that what distinguishes this Mass
case  and thus more clearly brings the case into Hank's  "mocking racial
groups" category, is the bar owner's gratuitous use of these horrific racist
images (again spearchuckers, blackfaced coconuts etc.) Like the "N" word,
(perhaps this is where Leslie's sign comes in) these images are so hateful,
and so debasing and so unnecessary to the overall point the owner claimed
(criticizing the concept of a Black history Month), that their only use is
to disrespect blacks (including black customers) and thus deprive them
rights of equal accomodations.  (think analagously,  "reckless disregard"
type of analysis) analysis,











> ----------
> From:         Lederman, Marty[SMTP:Marty.Lederman at USDOJ.GOV]
> Reply To:     Discussion list for con law professors
> Sent:         Friday, March 17, 2000 1:54 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: A Hostile Play Environment
>
> Once again, it's not so much that I disagree with Eugene on the law, but
> merely that I think he is taking a very small, perhaps nonexistent,
> problem, and characterizing it as if it were the greatest threat to the
> First Amendment since, oh, at least the CDA, if not the threat of
> devastating defamation verdicts in the days before NYT v. Sullivan.  I am
> what most would consider a First Amendment hawk; but, unlike Eugene, I
> don't think the sky is falling as a result of antidiscrimination laws.
>
> As long as we're using hypotheticals to discern where the lines are to be
> drawn, please allow me to offer the following hypos:
>
> 1.  A restaurant posts a signs that says "Blacks not allowed."
>
> 2.  A restaurant posts a sign that says "Blacks not welcome here."
>
> 3.  A restaurant owner, or waitperson, serves black patrons the same food
> as white patrons, at the same prices, with the same "extras," with no
> disparate "wait time" between courses, etc.; but nevertheless says to
> every black patron the following:  "I'm serving you, and treating you
> equally, because the law requires me to, but I want you to know that I
> hate blacks, that you people are despicable, and that I hope you never
> return to this establishment."
>
> 4.  A bar owner ensures that black patrons are served the same food as
> white patrons, at the same prices, with the same "extras," with no
> disparate "wait time" between courses, etc.; but whenever a black patron
> is present, the owner says out loud, so that all can hear, "I'm serving
> this black customer, and treating her equally, because the law requires me
> to, but I want you all to know that I hate that black person, and I hope
> she never returns to this establishment."
>
> 5.  A bar owner ensures that black patrons are served the same food as
> white patrons, at the same prices, with the same "extras," with no
> disparate "wait time" between courses, etc.; but whenever a black patron
> is present, the owner says out loud, so that all can hear, "Although I
> hate all black persons, think they're despicable, and hope they never
> frequent this bar, nevertheless I am serving this black customer, and
> treating her equally, because the law requires me to."
>
> 6.  A bar owner ensures that black patrons are served the same food as
> white patrons, at the same prices, with the same "extras," with no
> disparate "wait time" between courses, etc.; but nevertheless puts up the
> displays at issue in the Massachusetts case, *for the purpose of causing
> black patrons to feel uncomfortable and unwanted in the establishment* --
> i.e., for the purpose of ensuring that black patrons have a very different
> experience than white patrons in that bar.
>
> 7.  A bar owner ensures that black patrons are served the same food as
> white patrons, at the same prices, with the same "extras," with no
> disparate "wait time" between courses, etc.; but nevertheless puts up the
> displays at issue in the Massachusetts case, without any evidence that the
> displays are intended to cause black patrons any discomfort, but with some
> evidence that the bar owner simply wishes to share his racist views with
> any patrons who are receptive to them.
>
> I'm confident Eugene would agree that (1) and (2) could constitutionally
> be proscribed, because such (commercial) speech fairly indicates to the
> reasonable observer (and potential patron) that the restaurant will, in
> fact, unlawfully discriminate against black patrons in the provision of
> goods or services.  See Pittsburgh Press.  I think Eugene also would agree
> that (3) can be proscribed, because black patrons are, in fact, being
> treated worse than white patrons as a result of what Eugene calls
> "one-to-one" speech that white patrons do not have to suffer.  I hope
> Eugene also would agree that (4) can be forbidden, even though it involves
> "one to many" speech, because the black patron is still personally being
> treated worse than she would be treated if she were white (the owner makes
> the speech only because of the presence of the black patron, and no white
> patron would be subjected to personal insults).  I think that (5) and (6)
> also can be prohibited, because, while the speech !
> is not made directly to the black patron and is not expressly about the
> particular black patron, nevertheless the owner's intent in these cases is
> to ensure that the black patron has a very different, and worse,
> experience in the establishment (i.e, while receiving goods and services)
> than a "similarly situated" white patron.  This is, in effect, disparate
> treatment, which may be proscribed under O'Brien even when it is caused by
> speech, for reasons I and others have discussed at excruciating length in
> prior CONLAW and RELIGIONLAW debates with Eugene.  If Eugene agrees, then
> the only area of possible dispute is No. (7), which essentially is a
> "disparate impact," rather than "disparate treatment," situation.
>
> Surprise:  I agree with Eugene that No. (7) cannot constitutionally be
> prohibited (or at the very least that it would raise serious
> constitutional concerns).  However, where I part company with Eugene is
> that I do not think that hypo No. (7) is a serious threat to First
> Amendment values because:
>
> (i) I don't think there are many instances in which governments attempt to
> prohibit such conduct;
> (ii) I know of no authoritative constructions of any accommodation
> statutes that would prohibit it; and
> (iii) I think there is little, if any, likelihood (and no reason even to
> seriously think) that the courts (esp. the US Supreme Court) would reject
> a First Amendment challenge in such a case.
>
> In the federal system, the relevant statute is Title II, 42 USC 2000a(a),
> which provides that "[a]ll persons shall be entitled to the full and equal
> enjoyment of the goods, services, facilities, privileges, advantages, and
> accommodations of any place of public accommodation, as defined in this
> section, without discrimination or segregation on the ground of race,
> color, religion, or national origin."  See also 42 USC 2000a-2 ("No person
> shall (a) withhold, deny, or attempt to withhold or deny, or deprive or
> attempt to deprive, any person of any right or privilege secured by
> section 2000a or 2000a-1 of this title, or (b) intimidate, threaten, or
> coerce, or attempt to intimidate, threaten, or coerce any person with the
> purpose of interfering with any right or privilege secured by section
> 2000a or 2000a-1 of this title, or (c) punish or attempt to punish any
> person for exercising or attempting to exercise any right or privilege
> secured by section 2000a or 2000a-1 of this title.").
>
> Although I am not a Title II expert, I am unaware of any reported cases in
> which these statutes have been applied to a case such as hypo (7), let
> alone such a case in which a First Amendment defense was rejected (or even
> raised).  Indeed, although I could be wrong, I don't recall any case in
> which a disparate impact theory -- even apart from a "disparate impact
> caused by speech" -- has ever been applied to title II.  See LaRoche v.
> Denny's Inc., 62 F. Supp. 2d 1366, 1370-71 n.2 (S.D. Fla. 1999).
> Moreover, even if there were "disparate impact" title II claims, and they
> were to be treated like the "hostile environment" claims under title VII,
> then one would suspect the Court would, in title II "environment" cases,
> require disparate treatment, just as the Court requires under title VII
> (see Oncale).  Hence, hypo (7) would not be prohibited.  And, in the
> unlikely event that the courts do construe title II to prohibit hypo (7)
> and its ilk, I'd be surprised if any federal appellate!
>  court, let alone the US Sup. Ct., would give short shrift to the First
> Amendment argument.
>
> Having said that, I should note that I can easily imagine many cases in
> categories (1)-(6), as well as numerous cases of outright disparate
> treatment in provision of goods and services, in which plaintiffs might
> introduce evidence of conduct such as that in hypo (7), in order to
> establish that the restaurant owner is, in fact, racist, and that it
> therefore is more likely than not that the owner did, in fact, invidiously
> discriminate in the manner plaintiff alleges.  Such evidentiary use of
> hypo (7) speech would, of course, be perfectly permissible under the First
> Amendment.  See Wisconsin v. Mitchell.  But, as in title VII, I suspect it
> would be extremely rare to find a litigated case in which liability was
> dependent upon hypo (7) conduct, i.e., in which conduct such as hypo (7)
> was not accompanied by the sort of disparate treatment that can,
> constitutionally, be prohibited.
>
> Marty Lederman (in my private capacity)
>
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
> Sent: Thursday, March 16, 2000 8:46 PM
> To: CONLAWPROF at listserv.ucla.edu@inetgw
> Subject: Re: A Hostile Play Environment
> Sensitivity: Personal
>
>
>         Marty, as I understand it, is making a fairly narrow proposal:
> That
> businesses may not make statements that strongly suggest that the business
> will engage in prohibited nonspeech conduct -- will discriminate based on
> veteran status, religion, race, sex, etc. against customers by refusing to
> serve them or by charging them more or by serving them worse food.  I
> agree
> that this is probably right, which is why a "Blacks not allowed" sign may
> be
> forbidden.  But this principle, as I read it, is limited to a concern that
> people will reasonably perceive that the business will discriminate; it
> doesn't cover situations where people are simply offended based on veteran
> status, religion, race, sex, etc.
>
>         Let me ask, though, two questions:
>
>         1)  Say that a business puts up a sign saying "We are unabashed
> racists -- haters of veterans -- militant atheists who hate religious
> people
> -- and proud of it.  But we recognize our legal duty to serve everyone
> without regard to veteran status, religion, race, sex, etc., and will
> comply
> with this duty."  Marty, would you agree that this speech may not be
> suppressed?
>
>         2)  A wide range of statements might be interpreted by some people
> as a hint that the business owner may discriminate based on veteran
> status,
> religion, race, sex, etc.:  A confederate flag; a religious symbol
> associated with a group that holds views known to be racially,
> religiously,
> or sexually bigoted; a David Duke for President poster; and so on.  If I'm
> right that such speech must be protected, how can the definition be
> clarified to make sure that this speech isn't suppressed?
>
> > -----Original Message-----
> > From: Lederman, Marty [SMTP:Marty.Lederman at USDOJ.GOV]
> > Sent: Thursday, March 16, 2000 10:59 AM
> > To:   CONLAWPROF at listserv.ucla.edu
> > Subject:      Re: A Hostile Play Environment
> > Sensitivity:  Personal
> >
> > Yes, "surely there is some point" at which free speech rights outweigh
> the
> > state's interest in antidiscrimination laws, *and* "surely there is some
> > point" in which the antidiscrimination laws trump the First Amendment
> > interest.  I think, however, that Prof. Sager was describing a fairly
> > uncontroversial case.  I am not aware of any case in which a restaurant
> > (or other buisness) has been permitted, for "expressive" purposes, to
> > discriminate against African American patrons.  And, because a
> restaurant
> > may not, in fact, discriminate in the provision of service to blacks, it
> > may not post signs saying "blacks not welcome here."  Prof. Sager is, I
> > think, describing speech that is not materially different than the
> "blacks
> > not allowed" sign:  racist speech that does not expressly indicate that
> > the restaurant owner will discriminate against blacks in provision of
> > goods or services, but nevertheless suggests to the reasonable observer
> > that, indeed, black patrons are likely to be treated !
> > worse than white patrons.  In Prof. Sager's words, "the formal
> willingness
> > of the establishment to accommodate all is betrayed by the nasty
> message."
> > The more difficult question -- the one at issue in this thread -- is
> with
> > respect to messages that are not so unambiguous.
> >
> > Marty Lederman (in my private capacity)
> >
> >
> > -----Original Message-----
> > From: Michael McConnell
> > Sent: Thursday, March 16, 2000 12:33 PM
> > To: CONLAWPROF at listserv.ucla.edu@inetgw2
> > Subject: Re: A Hostile Play Environment
> >
> >
> > I am curious how Larry Sager decides which principle should be
> > subordinated to the other. Why is it not equally logical to say that
> > "surely there is some point" at which the right of free speech
> > outweighs the interest in public accommodations laws?
> >
> > > Date:          Thu, 16 Mar 2000 12:22:50 -0500
> > > Reply-to:      Discussion list for con law professors
> > >                <CONLAWPROF at listserv.ucla.edu>
> > > From:          Larry Sager <lgs at WORLD.STD.COM>
> > > Subject:       A Hostile Play Environment
> > > To:            CONLAWPROF at listserv.ucla.edu
> >
> > > <html>
> > > <font size=3>Setting aside factual issues about the Massachusetts
> > > bar display, let's assume that a bar or restaurant prominently
> > > displays an unequivocally nasty message about African-Americans or,
> > > for that matter about Martin Luther King.&nbsp; State and federal
> > > law oblige this establishment (I've self-censored various
> > > adjectives) to welcome the business of all persons, without regard
> > > to race.&nbsp; Surely there is some point at which the formal
> > > willingness of the establishment to accommodate all is betrayed by
> > > the nasty message, and the purpose of the law subverted.&nbsp; The
> > > fact that the message might in other contexts qualify for robust
> > > first amendment protection ought not permit this subversion of the
> > > obligation of a public accommodation to accommodate.&nbsp; <br> <br>
> > > --Larry Sager</font> <BR> </html>
> > -- Michael McConnell (U of Utah)
>