Marion Barry—the District of Columbia’s rather notorious former mayor and current city councilman—has a knack for making embarrassing and controversial public statements. One of the more recent, spectacularly offensive even by Barry’s standards, was his widely-condemned remark that the city should “do something” about Asian Americans opening up “dirty shops” in his district, and that they “ought to go” to allow African American business owners to “take their places.”
Annoyed that Barry “gets away with this stuff continuously,” local bar owner Tony Tomelden decided to satirize the councilman at his establishment, The Pug, with a sign advertising a new drink special, “Marion Berry’s [sic] Dirty Asian Summer Punch.” The sign was illustrated with an offensive caricature of an Asian man declaring “No tickee, no punchee.” Even assuming the intent of the caricature was to lampoon Barry’s crude and stereotypical views, it’s hard to deny that this was a rather tasteless and poorly thought-out piece of satire. Customers unfamiliar with the controversy over Barry’s remarks would surely be offended by it, and even among those who understood the context, many would doubtless find the use of a racist caricature objectionable regardless of the owner’s ironic intent. But does that mean it should be illegal?
In a society governed by the First Amendment, there’s no place for government bureaucrats to determine which satires of public officials are acceptable and which are so offensive they should be met with the threat of legal sanctions. Yet that’s just what the D.C. Commission on Human Rights has presumed to do, invoking a section of the city’s Human Rights Act which makes it illegal to post any sign at a business indicating that members of any minority group are unwelcome as customers. In the Commission’s view, apparently, the statute doesn’t just bar straightforward declarations that some people will not be served, but gives them veto power over any sign—including political satire—that its members deem “not demonstrative of the shared values and practices that make the District a fully inclusive environment for all residents and visitors.” That’s a bridge too far.
Maybe this sign is a bad and inept political satire; maybe it’s tasteless, or offensive; and maybe it fails to get its intended message across clearly—making it easy to interpret as an expression of racism rather than a criticism or spoof of it. But for legal purposes, that shouldn’t matter, because the point of the First Amendment is that government officials don’t get to make that judgment call—especially when the target of that satire is another local official. And the Constitution prohibits granting them that power through an overbroad interpretation of anti-discrimination rules just as surely as it prohibits doing so directly and overtly with censorship legislation. Otherwise any political speech someone thinks could make members of a particular group uncomfortable—a sign opposing gay marriage? a sign supporting it?—becomes vulnerable. Legal equality cannot become a pretext for bureaucratic censorship, as certainly seems to have occurred here.