Skip to main content

Chick-fil-A and free speech

By Marc J. Randazza, Special to CNN
July 31, 2012 -- Updated 0938 GMT (1738 HKT)
Mayor Thomas Menino has objected to Chick-fil-A locating in Boston because of its CEO's views on same-sex marriage.
Mayor Thomas Menino has objected to Chick-fil-A locating in Boston because of its CEO's views on same-sex marriage.
STORY HIGHLIGHTS
  • Marc J. Randazza: Dustup over Chick-fil-A shows confusion over First Amendment
  • After CEO's remarks on same-sex marriage, some politicians said business unwelcome
  • Randazza: Politicians can't deny permits to block free speech but have other recourse
  • He says pols should have and express opinions but can't give them the force of law

Editor's note: Marc J. Randazza is a Las Vegas-based First Amendment attorney. He is licensed to practice in Arizona, California, Florida, Massachusetts and Nevada. He is the editor of the law blog, The Legal Satyricon.

(CNN) -- Dan Cathy, the CEO of Chick-fil-A, proudly proclaimed his opposition to marriage equality and drew flak from politicians and citizens nationwide, who said Cathy's position made the chain unwelcome on their turf. Some of the condemnation crossed the line, offending the First Amendment. Some did not. Many don't understand where the line is, and now a population already sharply divided over same-sex marriage is collectively less informed about the First Amendment.

The First Amendment protects you from government action suppressing your right to free speech. It does not protect you from private individuals' negative reaction to your speech. As an extreme example: In my younger and more impulsive days, I punched out a guy who offended my then-girlfriend (now wife). He said he was exercising his First Amendment rights. I agreed and told him that I would defend him if the government messed with him, but the First Amendment didn't protect him from a private punch. I broke a few laws that day, but I didn't violate the First Amendment.

Similarly, the First Amendment does not protect you from criticism. Sarah Palin infamously took us all back a few steps by ignorantly criticizing the media for its negative commenting on her views. She said, "I don't know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media." This statement is utterly wrong. The First Amendment does not protect you from scrutiny or criticism by the media or others.

Christian groups allege threats to religious freedom in anti-Chick-fil-A campaigns

Marc J. Randazza
Marc J. Randazza

Therefore, those claiming that the private calls to boycott Chick-fil-A have any First Amendment implications are wrong. Cathy put his thoughts into the marketplace of ideas, where they may be bought or rejected. He has no First Amendment right to our approval, or to our money for his sandwiches.

But can cities use zoning to combat unpopular speech?

Unfortunately, when we chip away at the First Amendment, unpleasant unintended consequences are not far behind. In Barnes v. Glen Theatre Inc., the Supreme Court allowed municipalities to use zoning to regulate strip clubs and adult bookstores to combat their "adverse secondary effects."

Blocking construction of Chick-fil-A
Chick-fil-A gets the boot
Chick-fil-A faces gay marriage backlash

In other words, a city can't ban adult bookstores because it doesn't like the books it sells. The city can effectively ban them by claiming it is doing so to prevent litter, traffic, lowered property values or other secondary effects it claims the business may cause (and needs scant evidence to support the regulation).

Over the years, courts expanded the doctrine to be virtually limitless. Now a city need only mouth the words "adverse secondary effects" when enacting a regulation, and for the most part, courts will uphold it -- even though everyone knows the real reason is that the city doesn't like the books and movies that the store sells.

Eatocracy: Why I'm celebrating Chick-fil-Gay Appreciation Day

When municipalities are told for years they can make up zoning or other regulatory issues to make an end run around the First Amendment, is it any surprise that they would look to zoning obstacles to stop Chick-fil-A from coming into town because they don't like the CEO's views on same-sex marriage?

Some cities responded to Cathy's statements with proper deference to the First Amendment, but others have not. Boston Mayor Thomas Menino initially said, "If they need licenses in the city, it will be very difficult. ..." After considering the issue, though -- and probably talking with his attorneys -- Menino acknowledged he did not have the power to block the chain from operating in Boston.

In contrast, Chicago Alderman Joe Moreno went further, saying he would work to block any Chick-fil-A in his ward. Moreno defended his view by saying, "You have the right to say what you want to say, but zoning is not a right." He then took a page out of the "adverse secondary effects" doctrine playbook by saying he had concerns about increased traffic in the area. So far, Moreno has not backed down.

Chick-fil-A wades into a fast-food fight over same-sex marriage rights

These statements clearly raise First Amendment issues. A city can't deny permits because it disapproves of the owner's exercise of his First Amendment rights. Both Menino and Moreno were dead wrong even to claim they would do so. That crosses the line between simply speaking out and abusing government power.

Menino's critics are right about his initial misuse of zoning law being a violation of the First Amendment, but after backing down on his threats, the mayor maintained he did not welcome Chick-fil-A in Boston.

He was within his rights to do so -- expressing his own opinion, both personally and as mayor. In a letter to the chain, he wrote: "When Massachusetts became the first state in the country to recognize equal marriage rights, I personally stood on City Hall Plaza to greet same-sex couples coming here to be married," he added. "It would be an insult to them and to our city's long history of expanding freedom to have a Chick-fil-A across the street from that spot."

As mayor of Boston, Menino has a First Amendment right, and perhaps even a duty, to express his views, as all political figures do. They have a position that gives them a platform to speak out, and be heard, on matters of public concern. Rick Santorum had a right to say that a mosque shouldn't be built in Lower Manhattan.

A mayor in a less enlightened city has a right to say that Chick-fil-A is especially welcome, just as he might want to say that Starbucks is not welcome because it gives benefits to same-sex couples. A city council member has a right to say that "my district doesn't want an adult bookstore," and Menino has a right to say that Boston does not welcome a business run by someone who is prejudiced. As long as they do not then try and give their views the force of law, they are within bounds.

And if their constituents disagree with their views, then they use the political process to cure the problem.

Politicians' rights, however, do not bleed over into using their official power to deny a business its fair due because of its, or its CEO's, exercise of our cherished First Amendment rights.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Marc J. Randazza.

ADVERTISEMENT
Part of complete coverage on
December 25, 2014 -- Updated 0633 GMT (1433 HKT)
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
December 23, 2014 -- Updated 2312 GMT (0712 HKT)
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
December 24, 2014 -- Updated 1336 GMT (2136 HKT)
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
December 24, 2014 -- Updated 1914 GMT (0314 HKT)
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
December 23, 2014 -- Updated 2027 GMT (0427 HKT)
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
December 24, 2014 -- Updated 0335 GMT (1135 HKT)
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
December 23, 2014 -- Updated 1257 GMT (2057 HKT)
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
December 23, 2014 -- Updated 0429 GMT (1229 HKT)
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
December 23, 2014 -- Updated 2115 GMT (0515 HKT)
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
December 23, 2014 -- Updated 1811 GMT (0211 HKT)
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
December 22, 2014 -- Updated 1808 GMT (0208 HKT)
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
December 20, 2014 -- Updated 1853 GMT (0253 HKT)
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
December 20, 2014 -- Updated 2019 GMT (0419 HKT)
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
December 22, 2014 -- Updated 2239 GMT (0639 HKT)
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
December 20, 2014 -- Updated 0112 GMT (0912 HKT)
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
December 19, 2014 -- Updated 1709 GMT (0109 HKT)
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
December 18, 2014 -- Updated 2345 GMT (0745 HKT)
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
December 19, 2014 -- Updated 2134 GMT (0534 HKT)
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
December 18, 2014 -- Updated 1951 GMT (0351 HKT)
Jeff Yang says the film industry's surrender will have lasting implications.
December 18, 2014 -- Updated 2113 GMT (0513 HKT)
Newt Gingrich: No one should underestimate the historic importance of the collapse of American defenses in the Sony Pictures attack.
December 10, 2014 -- Updated 1255 GMT (2055 HKT)
Dean Obeidallah asks how the genuine Stephen Colbert will do, compared to "Stephen Colbert"
December 18, 2014 -- Updated 1734 GMT (0134 HKT)
Some GOP politicians want drug tests for welfare recipients; Eric Liu says bailed-out execs should get equal treatment
December 18, 2014 -- Updated 1342 GMT (2142 HKT)
Louis Perez: Obama introduced a long-absent element of lucidity into U.S. policy on Cuba.
December 16, 2014 -- Updated 1740 GMT (0140 HKT)
The slaughter of more than 130 children by the Pakistani Taliban may prove as pivotal to Pakistan's security policy as the 9/11 attacks were for the U.S., says Peter Bergen.
ADVERTISEMENT