BOSTON'S LATEST First Amendment case is distinguished by a singular feature: Virtually no one has mentioned the First Amendment.
 A dive bar in South Boston is the site of the city's most recent First Amendment controversy. |
The story of the jungle display in the South Boston bar hardly seems worth all the dust it kicked up. On Feb. 25, the Boston Herald reported that Tom English's Cottage had been decorated with stuffed monkeys and parrots, fake vines, a stuffed gorilla wearing a crown, and statuettes of native warriors holding spears. A sign behind the stuffed animals proclaimed, "Hey, hey, we're the monkeys." And why was this news? Because the guy tending bar supposedly cracked an ugly joke. "When asked . . . what the crew of stuffed monkeys symbolized," the Herald story alleged, "a bartender responded, 'Black History Month.' " The story claimed that a patron laughingly chimed in, "What else would it be for?" and that the bartender said the crowned gorilla represented Martin Luther King.
Was it true? Neither the bartender nor the patron were named, and the reporter provided no corroboration. The bartender flatly denies that the exchange took place. The owner says — and he has a stack of photos to back him up — that the jungle display is part of a rotating series: monkeys in the winter, frogs in the spring, fish in the summer, elephants and donkeys at election time.
But all disbelief was suspended in the rush to condemn.
Actually, that's not accurate. A rush to condemn would have been understandable, if perhaps premature. What took place was a rush to censor — to demand that the government punish the pub's owner because his bartender and a customer supposedly made a racist joke.
And the government was eager to comply.
"That's tantamount to a hate crime," the chairman of the Massachusetts Commission Against Discrimination, an agency charted with enforcing the state's civil rights statutes, told the Herald. The next day he opened proceedings against the bar. "This kind of conduct," he said to The Boston Globe, "is deeply offensive to all decent Americans as well as being illegal." Illegal? It is illegal to make a joke — even a tasteless joke — about Black History Month? Anyone who believes in freedom of speech should have been outraged. Yet as the MCAD commissioner set about to punish an opinion he disapproved of, no one objected.
He wasn't alone. One city councilor urged the Boston Licensing Board to strip Tom English's Cottage of its permit to do business. "A liquor license is a privilege, not a right," he said. "If you abuse it, you should lose it." The licensing board promptly agreed to hold a hearing on the matter. "This board has zero tolerance for any type of prejudice," its chairman said. "If they were running something that's offensive to the community, we can take action, up to and including taking away their license."
In the end, the board took no action, but only because there was no evidence to back up the charge. (The MCAD case is still pending.) And if there had been evidence? Can a business be shut down just because somebody in it says something "offensive?" In a country whose Bill of Rights bars the government from "abridging the freedom of speech," aren't citizens in a bar free to say anything they like without having to fear retribution by agents of the state?
Increasingly the answer is no. The First Amendment is being crucified on a cross of political correctness. Proprietors of public establishments who tolerate boorish jokes or bigoted remarks are now accused of creating a "hostile environment." More and more, that is held to suffice for a finding of discrimination — even if no one was actually discriminated against.
This is alarming. It should not have to be said that there is no right not to be offended. The law guarantees that you will not be barred from a place of public accommodation because of your race, religion, or sex; it does not guarantee that you will be welcomed with hugs and kisses. Freedom of speech means nothing unless it means that no one may be punished by the government just because he — or his employee — said something that somebody else didn't want to hear.
Who will be punished next? Suppose the bartender in a black neighborhood pub admires the Nation of Islam. Imagine that he adorns the bar with photographs of Louis Farrakhan and Elijah Muhammad, and displays literature describing whites as "blue-eyed devils" and "demons." Will the bar lose its license because the material is "offensive to the community?"
What if a bookstore at a women's college showcases works by authors like Catherine MacKinnon and Andrea Dworkin, who are known for their virulence toward men? Suppose it sells male-mocking novelty items, such as T-shirts listing "10 Ways A Cucumber Is Better Than A Man." Should MCAD go after the store because of its "hostile environment?"
What was said in that South Boston bar (if the story was true) was despicable. But the First Amendment protects our right to say even despicable things. "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought," Oliver Wendell Holmes Jr. wrote in 1928. "Not free thought for those who agree with us, but freedom for the thought that we hate."
Jeff Jacoby is a columnist for The Boston Globe.
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