D.C. Orders Bar to Stop Offering “Marion Berry’s Dirty Asian Summer Punch”

From the Washington Post:

Walk into The Pug today, and you can order a beer or a shot, but you can no longer order “Marion Berry’s Dirty Asian Summer Punch.”

The punch, a fruity vodka concoction, was whipped up by the H Street NE bar’s owner, Tony Tomelden, as an admittedly crude but satirical tribute to D.C. Council member Marion Barry’s controversial comments this year criticizing Asian shop owners and Filipino nurses. “The Ward 8 Special,” he called it.

“I put it up there for a reason,” Tomelden said. “He gets away with this stuff continuously.”

There’s more: Drawn on a chalkboard behind the bar was an advertisement for the punch featuring an Asian caricature — bald, with slanted eyes and buck teeth. “No tickee, no punchee,” the sign says.

As I said, admittedly crude. To many, just plain offensive. But illegal?

The sign was removed Friday after a city agency threatened to drag Tomelden before the D.C. Commission on Human Rights in a rare display of the city’s little-known power to regulate speech in places of public accommodation.

I have argued that such “hostile public accommodations environment” theories violate the First Amendment even when patrons claim that a business’s decor inside the business is offensive based on race, religion, sex, sexual orientation, and so on. (See also Daniel Koontz, Hostile Public Accommodations Laws and the First Amendment, 3 NYU J. Law & Liberty 197 (2008). If a restaurant or a bookstore, for instance, wants to hang Confederate flags, Playboy centerfolds, pictures hostile to Catholicism, or insults of Republicans (in those cities which ban public accommodations discrimination based on political affiliation) or whatever else, it has a First Amendment right to do that, I think, even if some patrons as a result feel offended.

This, I think, applies at least as clearly to satirical speech such as this (see here for what the satire is referring to), though I think it should apply to outright racist, sexist, and religiously bigoted material as well. Indeed, the presence of such products or decor in a business establishment could lead people of various groups not to want to shop there; but that is not a sufficient reason, I think, to suppress the business’s speech. (To answer the regularly asked question, if some place has a sign saying “we don’t serve Jews,” that might be illegal because it states to people that they will indeed not be served there. But if a bar wants to decorate using swastikas, or KKK memorabilia, or Hamas propaganda — and expresses a willingness to serve Jews, even if the speech leads Jews to be unwilling to drink there — the First Amendment protects that.)

For some caselaw on the subject, compare Sambo’s Restaurants, Inc. v. City of Ann Arbor, 663 F.2d 686 (6th Cir. 1981) (saying that use of Sambo’s name was protected by the First Amendment even if it was offensive to black customers) and Sambo’s v. City Council of City of Toledo, 466 F. Supp. 177 (N.D. Ohio 1979) (holding that it was unconstitutional for a city to deny sign permits to Sambo’s because of its name) with In re Urban League v. Sambo’s, No. 79 PRA 674-06/06 (R.I. Comm’n for Hum. Rts. Mar. 16, 1981), reaching the opposite conclusion. I think the Sixth Circuit majority opinion is correct.