Don't Fil-A the First Amendment

As established by the traditions of Chicago politics, aldermen can assert their privilege to deny permits to businesses who want to do business in their wards. This week, Alderman Joe Moreno said that that he would invoke that privilege to deny a permit to the fast-food chain Chick-fil-A, which is seeking to open a second franchise in the Windy City. According to Moreno, Chick-fil-A should be denied permission to operate in the neighborhood he represents because of the "bigoted, homophobic comments by Chick-fil-A President Dan Cathy, who recently came out against same-sex marriage." Boston Mayor Thomas Menino made vaguer threats about stopping the chain from doing business in Boston, although he has since backed off. Moreno is undoubtedly well-intentioned, and he's right that "[e]quality for LGBT people is the civil-rights issue of our generation." But denying Chick-fil-A a permit solely based on the political beliefs of the company's president violates the progressive principles Moreno is seeking to uphold.

To understand why Moreno's actions go too far, it is critical to make some crucial distinctions. The city of Chicago can—and should—protect LGBT people from discrimination by businesses. Compliance with civil-rights law is a legitimate factor to consider in determining whether permits should be granted. If Chick-fil-A had a history of denying service to people based on their sexual orientation, or discriminating against LGBT employees or job applicants, Moreno's actions would be entirely justified. But Moreno is not alleging that the company has a history of noncompliance with civil-rights codes. Instead, Moreno's basis for denying the permit are the comments recently made by Cathy defending his opposition to same-sex marriage. Unlike a pattern of discrimination, however, Cathy's comments are not a legitimate reason to deny Chick-fil-A a permit. It crosses the line into the kind of viewpoint discrimination forbidden by the First Amendment, which Moreno, in this case acting as a state actor, is failing to comply with.

Moreno would surely object to Cathy's views, and argue that Cathy's (and his company's) support for anti-same-sex marriage groups has harmed LGBT people, including those in his district. In my judgment, Moreno is entirely correct about this. By fighting to keep bans on same-sex marriage intact in most states, and successfully repealing same-sex marriage rights in California, Cathy and his allies have inflicted real harm on millions of Americans. But this doesn't mean that Cathy doesn't have the right to express his views. And his donations to political groups, like his vocal opposition to same-sex marriage, are also protected free speech. I trust that it would be obvious that if a state banned contributions to groups supporting LGBT rights this would violate the First Amendment, and it would also be unconstitutional to use such support to deny an otherwise legitimate business a permit.

The most serious problem with an argument based on the harms that flow from Cathy's views and political donations is that it proves too much. All illegitimate suppression of free speech is based on the assumption that the speech will be harmful. When Eugene Debs was handed a ten-year sentence for giving a speech opposing America's entry into World War I, Woodrow Wilson sincerely thought that his speech was harmful to the national interest. Richard Nixon thought the same thing when he attempted to suppress the publication of the Pentagon Papers. Cold Warriors who fired civil servants based on their political beliefs and associations thought that communism represented a major threat to American government. Censors who ban works of literature because of their sexual content generally believe that this content will be harmful to the morals of society. In all of these past cases, these fears might be specious, but that isn't the point. In a liberal democracy, what does and does not constitute harm is a matter of political contestation, and the First Amendment does not permit the state to determine which ideas are harmful and which aren't by preventing one side from making its case. There's always an argument that speech has harmful consequences, and when these arguments have been accepted the result has been oppressive restrictions on political and artistic speech. And as the recent attempts to stop a Muslim religious center from being erected near the World Trade Center site show, making zoning decisions based on political or religious beliefs is not likely to advance progressive interests in most cases.

Fortunately, the First Amendment also allows many avenues for opponents of Cathy to act. As ​Mother Jones' Adam Serwer notes, supporters of LGBT equality "have a right to protest, boycott, and make Chick-fil-A's customers aware that their purchases fund anti-gay activism." This is the appropriate response to Cathy's reprehensible views. It's an encouraging sign that Cathy's views make Chick-fil-A toxic for many Chicago residents. But the First Amendment isn't necessary to protect popular opinions. LGBT rights can be advanced without making the First Amendment a casualty in the fight.


[A] "pattern of discrimination" is exactly what people are afraid of - especially in those to whom they grant a operator license. From Forbes 2007:

Loyalty to the company isn't the only thing that matters to Cathy, who wants married workers, believing they are more industrious and productive. One in three company operators have attended Christian-based relationship-building retreats through WinShape at Berry College in Mount Berry, Ga. The programs include classes on conflict resolution and communication. Family members of prospective operators--children, even--are frequently interviewed so Cathy and his family can learn more about job candidates and their relationships at home. "If a man can't manage his own life, he can't manage a business," says Cathy, who says he would probably fire an employee or terminate an operator who "has been sinful or done something harmful to their family members."

The parent company asks people who apply for an operator license to disclose marital status, number of dependents and involvement in "community, civic, social, church and/or professional organizations."

As the same article points out, there is no federal laws that prohibit companies from asking such things. But it is clear based on past behavior and Cathy's comments that if an openly gay person came to Chick-fil-A and applied for a license, they would be denied.

It isn't like any of this information about Cathy is news. But his continued comments proves that the business would be a hostile environment for an openly gay and lesbian (or non-Christian) employee.

And it's not like Chick-fil-A hasn't been sued for employee discrimination many times.

Many cities don't allow Hooters or Tilted Kilts or strip clubs to open or make it as difficult as possible. I imagine they'd do the same thing with a Klan-owned bar and grill that, while not breaking any discriminatory laws, made their views clear.

A "pattern of discrimination" is often difficult to identify, particularly in the case of fast-food outlets that tend to employ very young, unsophisticated workers. Savvy bigots who do the hiring are always careful to hire "acceptable" individuals whose preference can be justified on paper, should it become necessary, with subjective and frequently falsified assertions that the candidate hired had a "neater appearance" at interview. At one time, I hired countless hundreds of people for global corporation. Although located in the San Francisco Bay Area, a bastion of non-discrimination, I was nonetheless called into the CEO's office and directed to "Stop hiring so many Blacks. It doesn't look good." Then and subsequent to my experiences with that company, I witnessed the various ways in which business discriminates against ethnic minorities, women, the disabled, homosexuals and others who fall outside of what decision-makers consider the norm. Even in cases where discrimination is blatant and ongoing, it generally takes many years to document - and proving it occurred ranges from extremely difficult to impossible.

I consider Chick-fil-A's apparent lack of a documented pattern of discrimination against homosexuals meaningless. Dan Cathy captains that ship, dictates and models the corporate culture and has made his bigotry abundantly clear to his employees who, if inclined to treat homosexuals with less courtesy & respect than others, surely know that they may do so with the tacit approval of the President of the company. Why would any state or city that respects all its citizens welcome a company such as Chick-a-Fil into their midst with the knowledge that discrimination aimed at a segment of their population was probable? Would Boston or any other city be expected to put out the welcome mat for an enterprise headed by a person with demonstrated disdain for African-Americans who publicly stated that he was "pro-White", a defender of the "White family" and contributed generously to causes seeking to deny African-Americans their rights? I think not.

No one has denied Dan Cathy the right to exercise free speech. Each of us is free to speak as we see fit - and to have our intelligence, education, ethics and character assessed by our words and deeds. Mr. Cathy has made evident as President of Chick-fil-A that he nor the company he controls is compatible with Boston's ethics and character.

While I certainly support the first amendment and Chick-Fil-A President Dan Cathy's freedom to spew hateful speech, denying a company zoning does not fall under the purview of free speech or under any federal law even if it is being done on the basis of things said by Dan Cathy. This is really something that would need to be considered according to the zoning laws for that particular neighborhood in Chicago. If a community feels the presence of a business would have a negative impact on their community, that is a totally justifiable stance and they have every right to fight against that business opening in their community and to change their zoning laws accordingly. Many communities ban sex shops and corporations for this reason. There are communities in California working to ban marijuana dispensaries because they feel they are negatively impacting their neighborhoods. If a community wants to ban businesses with hateful attitudes, I see nothing wrong with that.

A city has every right to turn down a business, including a fast food joint. They ban porno shops and prostitutes. All too often cities sell out to businesses at the detriment of their residents who bear the costs of the infrastructure which enable businesses to operate.

This is tantamount to saying that not donating to a politician with whom I disagree is violating his right to free speech.

The right to free speech doesn't imply a right to freedom from consequences of that speech. If I speak up in favor of killing puppies and kittens, I think it reasonable to expect some backlash from the puppy and kitten lovers of the world. Nobody prevented Dan Cathy from saying what he wanted to say; therefore, his right to free speech wasn't violated.

Mr. Cathy was free to say what he wanted to; we're all free to spend our dollars where we want to.

I fully agree with you on this! Free speech is for all people not just when you agree!

Great article. To often Left Wing Conservatives seek to oppress Right Wing Conservatives liberties in the name of the so called liberal ideals. True liberals have no desire to limit anyone's freedom of speech or even business options. The argument that communities have a 'right' to limit companies like porn shops because they feel a 'negative' impact on their community does not hold up under examination. Educating people to not WANT porn, for instance, will lead a porn business to not survive in an enlightened community.

Personally, I would welcome Chick-fil-A in my community just so I could protest it and educate it's customers as to the evil that their support of the business does to the greater well being of society.

I am in complete agreement. We should make sure that everyone who supports equality for LGBT people knows where Chick-Fil-A stands, and can make their own informed decision about whether to eat there. That's all. Ever since Richard Nixon perfected the Southern Strategy in '72, Republicans have cherished the opportunity to wallow in the self-pity of victimhood. It's best not to water that sty.

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