Chick-fil-A, Nudity Bans, and the Speech/Conduct Distinction
In the wake of the very public opposition to gay marriage by Dan Cathy, president of Chick-fil-A, local government officials have taken steps to make Chick-fil-A unwelcome in their cities. Although these officials may express their justified antipathy towards Chcik-fil-A, denying it permits to operate restaurants on the basis of Chick-fil-A’s viewpoint is clearly unconstitutional. Professor Eugene Volokh, on The Volokh Conspiracy, has fully covered why. This isn’t a close First Amendment case.
It seems strange to me that Chicago’s Mayor Rahm Emanuel, who supported an alderman’s decision to block permits for Chick-fil-A to build a second store in Chicago, wouldn’t realize this. It would be painfully obvious that Boston, for example, couldn’t deny building permits to a clothing store because the store, for example, donated money to Ron Paul. Or, Boston couldn’t decide to fire a teacher for her speech about gun control unrelated to her job duties written in a private newspaper (although the city may have almost total control of her speech in the classroom). So, why aren’t the free speech implications of this case more apparent?
My guess is because Chick-fil-A’s speech, and the company’s expression through its donation of money to anti-gay rights causes, begins to blur the speech/conduct distinction. As Professor Volokh notes, Chick-fil-A, a private speaker, cannot be denied a governmental benefit on the basis of its viewpoint, but if Chick-fil-A discriminated in serving or hiring decisions, the company could be punished. This is because, while speech cannot be punished, conduct can. This speech/conduct divide is what preserves our First Amendment values. Chick-fil-A’s statements against gay marriage, when they sound like “I think we are inviting God’s judgment on our nation when we shake our fist at him and say, ‘We know better than you as to what constitutes a marriage,’” make it difficult for us to believe that the company’s views won’t bleed into its conduct and impact hiring decisions. And even if the company doesn’t breach the speech/conduct divide, I cannot imagine that a gay couple would feel entirely comfortable entering the establishment holding hands (although they certainly should).
The speech/conduct distinction can be a murky divide. Consider a recent case where a man stripped down naked in purported protest of TSA’s intrusive searches at airports. Nudity is, in many cases, protected expression. However, the act of exposing oneself in public comes uncomfortably close to conduct that can be regulated. In addition, a plurality of the Supreme Court considers bans on public nudity to be constitutional as a content-neutral regulation of expressive conduct, meaning that nudity bans are permissible if they serve an important government interest (regulating health and safety) and the nudity is prohibited for reasons unrelated to the content of the speech. See City of Erie v. Pap’s A.M., 529 U.S. 277 (2000). However, is a restriction on nudity truly content neutral- or is it a restriction that attempts to regulate a particular type of expression because of what it says, how it will impact cultural values, or how it affects the viewer emotionally?
In the case of Chick-fil-A, the officials of Boston and Chicago are abusing their power. The speech/conduct distinction must remain robust to protect all of our speech (I wrote about this issue in the context of a Christian student organization denying leadership positions to those who do not uphold its mission, which is anti-gay and anti-premarital sex). Although the sentiment is well-intentioned, government officials cannot deny benefits to private speakers on the basis of their viewpoints. Let private individuals boycott Chick-fil-A, and let beloved Kermit the frog take a stand. Wait for Chick-fil-A to actually discriminate. The government is eclipsing Chick-fil-A’s offensive speech with its even more offensively unconstitutional actions.