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.

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