Recently, mayors and other politicians in Boston, Chicago, San Francisco, and elsewhere drew criticism for their comments suggesting that they would consider imposing legal obstacles to the expansion of the Chick-fil-A restaurant chain in retaliation for the anti-same-sex-marriage statements of the chain’s president, Dan Cathy. As law professors Nathan Oman and Eugene Volokh each independently observed, the First Amendment to the U.S. Constitution forbids government officials from discriminating against a person or business based on the viewpoints expressed by the person or by a representative of the business.
I agree with the analyses of Oman and Volokh, given the facts as they appear. Nonetheless, as I shall explain in this column, the Chick-fil-A controversy raises a question that will often prove vexing, because the speech of businesses and their representatives can be a legitimate concern of local government for two main reasons: First, speech manifesting bias may hint at illegal conduct manifesting the same bias; and second, in many circumstances private speech may implicate the government itself.
The Controversy
Gay-rights supporters have noted that over the last several years, the privately held business Chick-fil-A donated millions of dollars to organizations that oppose same-sex marriage and other gay rights. Although the company has denied that it is anti-gay, last month its president, Cathy, stated publicly that his company supports “the Biblical definition of the family unit” and that he prays for “God’s mercy on our generation that has such a prideful, arrogant attitude to think that we have the audacity to try to redefine what marriage is about.”
Private citizens who disagreed with Cathy organized boycotts of Chick-fil-A. In addition, a number of local politicians around the country entered the fray by warning that Cathy’s remarks could cost the company should it apply for such legal necessities as building permits or restaurant licenses. Chicago Alderman Joe Moreno went the farthest, flatly announcing, “I will deny Chick-fil-A a permit to open a restaurant in my ward.”
Criticism ensued from the likes of Oman, Volokh, and the American Civil Liberties Union. Private customers are entitled to withhold their business from a company based on their opposition to the company’s politically contentious speech, but the Constitution forbids government officials from denying licenses and other benefits on the basis of such speech, the critics noted. In response, some of the politicians backed down.
The critics, after all, were right. There are plenty of good reasons for an individual to avoid patronizing Chick-fil-A—not just the company’s opposition to equality for LGBT humans, but also the plight of the chickens whose slaughtered flesh Chick-fil-A laughingly sells. But for government, motivation matters. For a government entity to deny Chick-fil-A a license for no other reason than its president’s speech—no matter how distasteful that speech may be—would clearly violate the First Amendment.
That said, civil libertarians should think twice before championing Chick-fil-A’s cause in all contexts. For while a case of clear-cut retaliation by a government official or entity against Chick-fil-A would violate the First Amendment, there remains a considerable gray area in the applicable law.
Using Speech as Evidence of Conduct
Although federal law does not forbid discrimination on the basis of sexual orientation by private firms, in many places state or local law does. Of course, it is possible for the leadership of a firm to oppose same-sex marriage and simultaneously comply with such anti-discrimination laws. And indeed, a recent posting on Chick-fil-A’s website states that the company “treat[s] every person with honor, dignity and respect—regardless of their . . . sexual orientation.”
Nonetheless, it would be reasonable for a government official to subject Chick-fil-A to careful scrutiny in order to ensure that the company really is complying with anti-discrimination laws. After all, as I have argued at length in a recent academic paper, laws forbidding same-sex marriage can reasonably be understood as conveying a pernicious social meaning—suggesting that LGBT Americans are merely entitled to second-class citizenship. Granted, it would not be fair to conclude that a firm that opposes same-sex marriage also discriminates on the basis of sexual orientation in employment or public accommodations, but it would be fair to investigate that possibility on such grounds. Other things being equal, surely such a firm is more likely to discriminate than is a firm that applauds same-sex marriage.
Moreover, Chick-fil-A’s past political contributions have gone not only to organizations that simply oppose same-sex marriage but also to ones that oppose homosexuality itself. For example, according to the Equality Matters report linked above, Chick-fil-A’s charitable arm has supported Exodus International, a controversial ministry that offers assistance to LGBT persons seeking a “way out” from homosexuality.
Again, it is possible that despite Chick-fil-A’s support for Exodus, the firm does not discriminate on the basis of sexual orientation at all—not even in jurisdictions where such discrimination is legal. But for government officials with limited resources, it would not be unreasonable to scrutinize Chick-fil-A’s claims of non-discrimination somewhat more closely than the parallel claims of, say, Joe’s Gay Bar & Grill.
Government’s Implication in Private Speech
In addition, in some contexts government officials may have legitimate reasons to worry that private messages will be attributed to the government. Suppose, for example, that the federal government wishes to rent space to a fast-food restaurant in a food court on a military base. In light of the recent repeal of the Don’t-Ask-Don’t-Tell law, and the ongoing efforts by the military to make gay and lesbian service members feel comfortable serving openly, we could expect the officials charged with renting space to worry about the public association of Chick-fil-A with anti-gay sentiment. Would gay and lesbian service members feel devalued by the decision to open the Chick-fil-A? Would the restaurant’s presence be divisive, leading some members to boycott it, and others to patronize it specifically for the purpose of taking a stand on gay rights issues (much as some conservative politicians already have)? One could well imagine a base commandant opting for a KFC or Subway, rather than a Chick-fil-A, simply to avoid the attendant headaches.
To be sure, in light of military discipline, the base commander need not worry about protests in front of the Chick-fil-A. But given judicial precedents extending deference to decisions taken by military leaders, the courts might well accept any decision that the hypothetical base commandant took.
What about civilian life, though? Does the same analysis apply?
Consider a proposed Chick-fil-A in a government office building or public park. In the 2009 case of Pleasant Grove City v. Summum, the Supreme Court held that the First Amendment allowed the government of a Utah municipality to deny permission to a private organization to erect a permanent monument in a city park. Why? In a nutshell, because the government would necessarily be implicated in the message that the monument conveyed. While the government would seemingly be less implicated in any message conveyed by a restaurant operating in a public park, the difference seems more one of degree than of kind.
Is there a difference in kind between, on one hand, the government granting or withholding access to government property—as in my military base and public park examples—and, on the other hand—the government restricting who may have access to private property—as in the action that Alderman Moreno threatened to take against Chick-fil-A? Professor Volokh thinks so. He cites the 1991 Supreme Court case of Rust v. Sullivan in making the point that the “power of the government to control its own speech is far removed from the government’s attempt . . . to retaliate against businesses for their owners’ speech.”
That may be right in theory, but in practice it can be difficult to draw clear lines between government’s own speech and private speech. I know, because as a third-year law student, I assisted in the writing of the brief for the ultimately unsuccessful doctors in the Rust case. We argued that despite working in practices that received government funds, the doctors remained private speakers, entitled to control their own messages. We lost, just as the plaintiff in Summum lost in its bid to claim that its message was private.
Indeed, the category of “government speech” has expanded over the years as courts have recognized that in a pervasively regulated market, very few decisions are purely “private.” Seen in this light, Alderman Moreno’s threat to withhold a permit expressly in retaliation for speech may be the exceptional case of punishing private speech, with muddy mixtures of private and government speech and conduct being more common.
None of this is to say that government officials should have broad license to discriminate among businesses based on the speech of their owners, or even based on the anticipated response of the public to such speech. Down that road lies a real concern about the “heckler’s veto”—with zoning boards denying building permits or variances to the likes of Planned Parenthood based on the fear of protesters disturbing a quiet neighborhood.
My point is simply this: We should not be misled by the clear unconstitutionality of the proposed (and now abandoned) plans to deny Chick-fil-A its permits in retaliation for speech. That is a rare real-world case that exhibits the clarity of a law school classroom hypothetical example. For the most part, however, the real world serves up harder cases, in which more complex constitutional analysis is needed.
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