Austin American-Statesman, Ricardo Brazziell, Associated Press
Texas Lt. Gov. David Dewhurst visited a Chick-fil-A in Austin, Texas, as he began campaigning on the day before the runoff election. Dewhurst also met with his supporters and spoke with local media before heading to the airport on Monday, morning July 30, 2012.
Free speech has consequences. The First Amendment guarantees that governmental retaliation will not be one of them.
Some seem to miss this particular distinction. For instance, there may be a consequence when a television personality says something inappropriate or out of line with an employer's policy. In such situations, a stupid statement could result in the loss of a private job. Sometimes in these instances, there will be a chorus of critics complaining that constitutional rights have been violated.
Individuals may have the right to say what they want, but they don't have the right to make anyone listen. And they certainly don't have the right to force a private individual or company to provide them with a platform.
Similarly, if a person or company is saying something people don't like, people are well within their rights to repudiate or ignore them.
Serious problems arise, however, when public officials express their personal disapproval for speech by wielding the power of the state.
Statements by Chick-fil-A CEO Dan Cathy in favor of traditional marriage have met with widespread criticism in recent days by those who favor same-sex marriage. Those who disagree with Cathy are well-within their rights to criticize his viewpoint. They may choose to stay away from his company's restaurants as a powerful way to voice their criticism.
What is not permissible, however, is for public officials to deny licenses or services because of a difference of opinion. And yet this is precisely what Boston Mayor Thomas Menino and Chicago Alderman Joe Moreno threatened recently, suggesting that they would block licensing and zoning to Chick-fil-A restaurants because of their disagreement with Cathy's statements.
Any first-year law student should be able to tell you that officials cannot deny licenses or permits because they disapprove of how the owner exercises his or her First Amendment rights. That would be an extraordinary abuse of authority and a clear violation of the First Amendment.
If it could be proven that Chick-fil-A was not complying with the health code, or were discriminating against certain customers or were otherwise unwilling to comply with established standards necessary to receive a business license in a given city, then a local government would be well-within its rights to keep them away.
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No one has seriously suggested, however, that Chick-fil-A is out of compliance in these ways. No public official should be able to enforce a private policy disagreement by denying a public accommodation. The power of public office does not give officials the right to arbitrarily limit the choices of the rest of us.
Instructively and gratefully, many of the officials who threatened to deny licenses and zoning have since backed off, and even commentators who disagree with Chick-fil-A's CEO have welcomed those reversals. This latest spat is a reminder that if public officials could quash businesses with which they disagree, then your business could be next.