Chick-fil-A fracas highlights widespread confusion about First Amendment

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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With partisanship raging on every front, USA Today’s biweekly “common ground” feature seeks to bridge “the partisan divide in Washington.” This week liberal Bob Beckel and conservative Cal Thomas sought common ground on the subject of Chick-fil-A President Dan Cathy’s public statement on gay marriage and the reaction (boycott) and counter reaction (“buycott”) it generated.

The two pundits fell all over themselves agreeing, including on the fundamental importance of the constitutional guarantee of free speech. Unfortunately, neither of them articulated a clear understanding of what the First Amendment guarantees. Regrettably their apparent misunderstanding is commonplace among people who should know better.

Remember, the context is a public statement by a business executive in opposition to gay marriage, followed by calls for a boycott of that business’s products by those who disagree with Mr. Cathy. Also weighing in were the mayors of Chicago, Boston and San Francisco, all threatening to deny Chick-fil-A permits to do business in their cities.

The mayors quickly backed off when they were advised that denial of permits on the basis of a company executive’s, or even a company’s, political positions would be illegal. It would be illegal because it would violate the First Amendment as government suppression of free expression. Otherwise, there is nothing in the controversy that has anything to do with constitutionally protected free speech.

Beckel says: “I suppose he can say what he wants, but that doesn’t mean I have to give them my business.” To which Thomas responds: “Of all people, I thought you would be a supporter of free speech.”

But what Beckel said in no way threatened Cathy’s free speech. Beckel can patronize or boycott whatever businesses he likes for whatever reasons he chooses and the First Amendment has nothing to do with it. Nor, contrary to Thomas’ claim, was the “buycott” reaction to the boycott “another example of free speech.” Both the boycott and the “buycott” were expressions of free market preferences. There is no rule saying that food purchases must be based only on how it tastes.

After proclaiming his allegiance to the First Amendment, Beckel calls claims that Chicago Mayor Rahm Emanuel denied Cathy’s free speech when he said he didn’t want Chick-fil-A in Chicago because of Cathy’s anti-gay statement “ridiculous.” Emanuel, said Beckel, “was expressing his own right to speak.”

Wrong again, and ridiculous. Emanuel is the mayor of Chicago, presumably with the power to see that business permits are denied. To be sure, the mayor has the constitutional right to speak his mind on any issue, but no public official has a First Amendment right to stifle or chill the speech of others by threatening them with the regulatory powers of the state. (Give Thomas credit for at least understanding this point.)

Thomas observes that both he and Beckel have “experienced attempts to silence us.” For Thomas it has been “letter writing campaigns to force my newspaper syndicate to drop my column.” Beckel chimes in that “it happened to me when I opposed the Iraq war on television.” “I have a right to speak out against war,” says Beckel, “no matter what wing nuts think.”

So what is their point? What are they complaining about? Both Thomas and Beckel do have the right to speak out. But it’s not a right their antagonists have infringed, nor is it a right that has anything to do with free speech under the First Amendment — unless the wing nuts are the government.

What Beckel and Thomas are really talking about are the freedoms that individuals have in relation to each other — the freedoms that, in the words of the Declaration of Independence, governments are instituted to secure. Too often in our hyper-sensitive, politically correct world today, we look to government to stifle the freedoms of others rather than secure the freedoms of all.

Our constitutions protect against government interferences with free speech, like those suggested by the mayors of Boston, Chicago and San Francisco. But otherwise the Chick-fil-A contretemps is exactly what’s supposed to happen in the market place of ideas, as well as the market place for fried chicken. Government’s role is to stay out of the way and let the chips and chicken fall where they may. Unless and until the government takes sides in the argument, the First Amendment has nothing to do with it.

Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.