Protecting hateful speech

The jungle display at Tom English's Cottage was legal under the First Amendment and should always remain so

Two weeks ago, on February 25, the Boston Herald shined a bright light on a sleazy little corner of the city. In a front-page exposé, the paper reported that Tom English's Cottage, a bar in South Boston, had been decorated with stuffed monkeys and spear-wielding African figurines. According to a bartender interviewed by the Herald, the display was meant to mark Black History Month, right down to a stuffed, crown-wearing gorilla in honor of Martin Luther King Jr.

The display was racist, and never mind the denials from bar owner Thomas English Jr. Even if he is sincere, the Herald's reporting made it clear that at least one bartender and several smirking patrons believed the display was a racial slight. English promised to take down the display immediately and to fire the bartender who spoke with the Herald. This was an appropriate response. Also appropriate was the public condemnation of the bar by organizations such as the NAACP.

What was not appropriate -- although it was entirely predictable -- was the response from elected officials and appointed bureaucrats, who launched an investigation into the incident with the aim of taking away the bar's liquor license. The message, apparently, is that the First Amendment doesn't apply to those whose livelihood depends on their having permission from officialdom to serve beer, wine, and liquor.

Soon came the piling on. In a prepared statement, Massachusetts Commission Against Discrimination chairman Charles Walker Jr. said, "This kind of conduct is deeply offensive to all decent Americans as well as being illegal, and if our investigation confirms these allegations, we will take appropriate action." Added Boston city councilor Charles Yancey, "As far as I'm concerned, his [English's] license is in jeopardy. This person deserves to pay a price for this mocking display." Then there's this from Boston Licensing Board chairman Daniel Pokaski: "The comments made by the bartender, if true, are patently offensive to this board and will not be tolerated."

Make no mistake: the display in Tom English's Cottage was offensive, and it deserves to be met with denunciations, boycotts, demonstrations, and other forms of peaceful protest. But the display is also constitutionally protected speech -- protected not just by the First Amendment to the US Constitution, but also by the free-speech clause of the Massachusetts Constitution, which is, in some ways, even more stringent. The very purpose of the First Amendment is to protect hateful, loathsome speech of the sort that English's customers chortled at. Bland affirmations of patriotism and motherhood, after all, need no such protection.

Since the civil-rights era of the 1960s, public-accommodation laws have prohibited restaurants, bars, and similar facilities from banning patrons on the basis of race or ethnicity. These laws were won after hard-fought battles. Who can forget the image of idealistic young African-Americans being dragged away from segregated lunch counters?

It appears, however, that officials such as Walker, Yancey, and Pokaski are seeking to twist the notion of public accommodation to score cheap political points by not just requiring Tom English's Cottage to admit all comers (something it was, at least in theory, already doing), but also demanding that the bar refrain from offending the sensibilities of anyone who enters. The former is necessary; the latter is unacceptable.

Licensing authority should be used only as it is intended: to maintain public safety, to enforce the legal drinking age, and to control noise and hours of operation in surrounding neighborhoods. It is clearly unconstitutional for government officials to use their licensing power to regulate speech they don't like. The situation facing Tom English's Cottage is comparable to the situation that faced Sambo's, a now-defunct restaurant chain, in the late 1970s. Some officials -- including Frank Bellotti, then the state's attorney general -- attempted to bar the restaurant from Massachusetts because its name was offensive to blacks. Those legal efforts were rightly shot down, though the chain itself, succumbing to public protest, changed the name of most of its restaurants to No Place Like Sam's.

Which demonstrates that the solution to offensive speech is more speech, not censorship. Sambo's changed its name because of community outrage. Tom English's Cottage cleaned up its act because of the Herald's reporting. Speech is the ultimate disinfectant.

More than 200 years ago, Voltaire said, "I disapprove of what you say, but I will defend to the death your right to say it." Voltaire's words have long since passed into the realm of civic piety. Nevertheless, they remain a radical idea. Ours would be a freer society if Voltaire were quoted less and heeded more.

What do you think? Send an e-mail to letters@phx.com.