Commentary Magazine


Chicago and Boston Chose Liberalism Over First Amendment

Last week, I discussed liberal intolerance of those in opposition of their particular viewpoints, and almost on cue, Chicago Mayor Rahm Emanuel and Boston Mayor Thomas Menino came onto the scene today to embody the ideals of modern-day liberalism: tolerance of only those with whom they already agree. Both mayors expressed support for same-sex marriage and not only expressed their personal opposition to Chick-fil-A’s social conservatism, but also those of their cities.

In a public letter to Chick-fil-A’s President Dan Cathy, and carbon copied to the owner of a property that it appears Chick-fil-A would occupy, Mayor Menino expressed his opposition to the chicken restaurant’s plans to locate in Boston. The strongly worded letter reads in part, “I was angry to learn on the heels of your prejudiced statements about your search for a site to locate in Boston. There is no place for discrimination on Boston’s Freedom Trail and no place for your company alongside it.”

To be clear, Chick-fil-A discriminates against no one, not employees and not customers; its policies expressly forbid it. Chick-fil-A and its president have expressed their support of the traditional family and Christian values, which are not by definition anti-gay. Their charitable organization, WinShape, has donated money not only to organizations that support traditional marriage, but also to foster homes, college scholarships and international relief efforts. Chick-fil-A’s other charitable contributions are irrelevant to those who view anyone who is not with them on the quest to redefine marriage as a bigot who must be taken down at any cost.

Not to be outdone, Chicago’s Mayor (and Barack Obama’s former chief of staff) Rahm Emanuel announced support of a Chicago alderman’s refusal to approve a building permit for Chick-fil-A in one of Chicago’s wards. The Volokh Conspiracy explains just how unconstitutional this move is:

But denying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.

And this is so even if there is no statutory right to a particular kind of building permit (and I don’t know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights. It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law — but Alderman Moreno, Mayor Menino, and, apparently, Mayor Emanuel (if his statement is quoted in context), seem to either not know or not care about the law.

Of course, if Chick-fil-A actually discriminated in their serving or hiring decisions in Chicago in a way forbidden by Chicago or Illinois law, they could be punished for this violation, and possibly even denied future permits based on such illegal behavior. But the stories give no evidence of any such actions, and suggest that the city officials’ statements are based on the Chick-fil-A president’s speech, not any illegal conduct on the company’s part. Finally, note that the government may generally insist that, when it hires people to communicate a government message, those people use that government money only for the government-selected speech (see Rust v. Sullivan (1991)); but that power of the government to control its own speech is far removed from the government’s attempt in this case to retaliate against businesses for their owners’ speech.

Imagine, for a moment, if Governors Rick Perry or Chris Christie banned the sale of Ben & Jerry’s from their states because of that company’s support of same-sex marriage. What if, as his first act as president, Mitt Romney banned the Muppets from government-funded PBS after the Jim Henson company expressed their opposition to Chick-fil-A? You can just hear the wails of the editorial pages of the New York Times and Washington Post, the anchors of every major news station (including Fox) crying “FASCISM!” They would be absolutely correct in their charge. Using the government’s power to restrict commerce based on a personal vendetta is a chilling next step in a culture war that has turned business owners, job creators and people of faith into public enemies.

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