City official’s complaint about cartoon illustrates ignorance

Friday, June 18, 1999

Brazen. Bold. Audacious. Ignorant. Alarming. Incredible.

So many adjectives exist to describe Tyrone Terrill’s recent conduct that it’s difficult to know where to start.

Terrill is the human rights director for the city of St. Paul, Minn. As such, he enforces the city’s anti-discrimination laws, usually in cases involving employment or access to public places. He extended that reach last week, charging the St. Paul Pioneer Press with racial discrimination after the newspaper published an editorial cartoon that offended many African-Americans.

The cartoon commented on the allegations of academic fraud surrounding the University of Minnesota’s men’s basketball program. Titled “The Plantation,” the cartoon depicted several African-Americans playing basketball, with one white spectator saying to another, “Of course, we don’t let them learn to read or write.”

In his charge, Terrill claims that the newspaper, by publishing the cartoon, “discriminated against African American student-athletes past, present and future in the area of public accommodation on the basis of race… .”

Although Terrill has not clarified his linking of the cartoon to a “public accommodation,” it appears he is claiming that the cartoon somehow discriminates against African-American students attending the university.

Terrill’s charge also is unusual because it is not based on any formal complaint from a university student or other African-American. Instead, it is a “director’s complaint,” which Terrill has the authority to file when a person does not want his or her name used or when a discriminatory practice is aimed at a large group. Only 3% of the charges filed each year by Terrill’s office are director’s complaints.

Although Terrill has conceded that his office never has before charged a newspaper with discrimination because of something the paper published, he told the Pioneer Press that he did not believe the complaint implicated the First Amendment. Rather, he says, the cartoon is comparable to an employee hanging nude centerfolds in the workplace or directing racial epithets at co-workers.

Terrill’s comparison, however, ignores at least one critical distinction. The restrictions on employees’ free-speech rights cited by Terrill are constitutional only in the limited context of the workplace. Outside the workplace and the employer-employee relationship, people are generally free to display centerfolds and use racial epithets. Terrill cannot use employment laws to punish non-employment speech.

Terrill’s charge not only involves the First Amendment, it targets it. The cartoon, regardless of whether it is effective, clever or in good taste, is pure political speech, which traditionally has been afforded the most constitutional protection. The cartoon also clearly expresses an opinion through hyperbole, which is another category of speech that courts have vigorously protected. If Terrill and other bureaucrats like him can charge newspapers and other media with discrimination every time a minority is offended (or even potentially offended) by a published opinion, the First Amendment quickly will be stripped of its meaning.

Terrill’s obliviousness to the First Amendment is also evident in his description of possible ways to resolve the charge. He told the Pioneer Press that his primary goal in these cases was to ensure that the discrimination was not repeated. In the case of the newspaper, he suggested, one resolution would be to establish an outside committee to review all cartoons before they are published.

Needless to say, the newspaper intends to forcefully resist the charge, which has already generated a firestorm of controversy. St. Paul Deputy Mayor Susan Kimberly met with Terrill shortly after he filed the complaint and, after that meeting, she conceded to the Pioneer Press that the charge is “a stretch.” Kimberly also suggested that the newspaper’s formal response to the complaint, which is due at the end of June, might persuade Terrill to drop the matter.

Let’s hope so. And let’s also hope that, in the process, Terrill learns a valuable lesson about the First Amendment.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.