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.

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23 Responses

  1. Orin Kerr says:

    Isn’t the simpler explanation that First Amendment principles get lost very easily when a group has passionate opinions about the correctness of a particular viewpoint?

  2. Erica Goldberg says:

    Yes, that’s certainly a possible explanation. I’ve been ruminating over how I would feel if Chick-fil-A expressed hostility towards a particular racial or religious minority, or towards women. Now, of course, there is a difference between being anti-gay marriage and being anti-gay generally (in some cases), but we might not let Chick-fil-A get away with expressing racist or sexist views precisely because it starts to look less like speech and more like discrimination, no? I guess you would say in rejoinder that society holds even more passionate views about racism and sexism, which further obscures the First Amendment, but I am interested in your thoughts.

  3. Maryland Conservatarian says:

    …just remarkable that just a few months ago many were donating thousands of dollars to one anti-gay marriage guy yet will now refuse, on principle, to buy a chicken sandwich from another.

    If the president hadn’t conveniently “evolved” a few months ago, do you think that Rahm Emmanuel would now also be saying that Obama’s values are not Chicago values?

  4. AndyK says:

    Certainly we need a strong distinction between speech and action if the 1A is to mean anything. Without such a clear distinction, one can make the plausible argument that the public positions of Chick-Fil-A’s management could constitute discrimination in serving. It seems overly formalistic to claim that willingness to perform a monetary exchange for all comers is nondiscriminatory when you make public pronouncements that make it more or less likely that certain groups will feel comfortable shopping at your store or applying for a job. I imagine a case worse than this one, where a company actually has advertisements saying “We will serve all comers and hire anyone, but management is constantly thinking X, even when serving you with a smile on our face.” (X being a belief that certain religious principles are dumb, or that certain sects are dumb, or that certain beliefs or sects shouldn’t be protected by law, etc).

    Of course, if you walk down this road, the 1A ceases to afford any protection at all in the face of nondiscrimination laws.

    I think a better road is not to say that these pronouncements aren’t discriminatory in some sense, but that it is de minimus discrimination.

  5. Orin Kerr says:


    My sense is that people don’t immediately see First Amendment problems when they really really hate the viewpoint expressed. They tend to see that viewpoint as evil, and then they ask themselves whether they should welcome evil. No, they conclude: Commitment to good requires opposition to evil. And so they engage in viewpoint discrimination because they see it as a choice between good and evil.

    My 2 cents, anyway. Sorry for hogging your threads.

  6. Erica Goldberg says:

    AndyK, interesting idea, although that might make First Amendment protections subject to more of a balancing test.

    Orin Kerr, I agree, to some extent, although almost everyone in the US seems to have absorbed the “let the Nazis” march philosophy and can see the larger principles. Perhaps the distinction here is they think the government is implicated because of the granting of building permits, but the same applies to parade permits. Never apologize, btw.

  7. Orin Kerr says:

    I think people people can come around and see the broader principle when it’s pointed out to them. But I disagree that the “let the Nazis march in Skokie” notion has become absorbed. Rather, it has become an abstraction that is easily voiced but not really felt; That famous case is 35 years old, and the idea of American Nazis these days exists only as humor (Cf. The Blues Brothers movie from 1980). When it is something that people today really care about, that notion isn’t the first reaction that many people have.

  8. AYY says:

    “Offensive speech?” It wasn’t vulgar. It simply expresed a viewpoint you didn’t agree with.
    Anyway, this is a golden opportunity for Chik Fil A. They can start an advertising campaign with a “banned in Boston” theme.

  9. Joseph Slater says:

    Isn’t another Occam’s-razor sort of explanation for this that politicians act politically? Politicians want to make it clear to their constituents that they have strong feelings on certain issues. Not infrequently, this leads them to claiming to favor something even though they know (or strongly suspect) they can’t make that position stick, either because it’s unconstitutional (e.g., bills restricting abortion rights in ways that clearly violate existing precedent, or proposed restrictions on Islamic schools or places of worship that don’t apply to institutions associated with other religions), or wildly impractical (let’s build an electrified fence on the Mexican border with a moat and crocodiles. . . .).

    Now, one could make the argument that politicians *shouldn’t* behave that way, but I don’t think it’s all that surprising that they do. The most surprising, or at least interesting, thing about the Chik-Fil-A brouhaha, if my view is correct, is that some politicians want to let their constituents know that they strongly oppose folks who oppose gay marriage.

  10. The (odd) premise in this analysis is that Chik-Fil-A has, or should have, free speech rights in the first place. Of course, it does under current Supreme Court precedent. But that precedent contradicts the premise of the First Amendment, which, in turn, makes it difficult to intelligibly apply the precedent to even relatively simple First Amendment contexts.

    The basic insight of the First Amendment is that individual freedom often requires collective constraints. Liberal states agree to have no religion to make more room for their citizens to practice their own.

    Chik-Fil-A is a corporation created under state law. Corporate law governs the behavior of its directors and managers in their roles as corporate decisionmakers and spokespeople: they have a legally imposed duty to spend corporate money (and otherwise speak and act) only in pursuit of the corporate interests. It is a violation of corporate law for them, for example, to use Chik-Fil-A’s money or reputation to pursue their own political agenda in conflict with its interests.

    In addition, all corporate employees, including managers, are agents of the corporation. As agents, they are compelled by law to set aside their own interests and direct their efforts, instead, on behalf of their principal, the corporation.

    These rules are an essential aspect of our market-based economy. But they are not political or religious freedom.

    If we were genuinely concerned with the religion and speech rights of the people associated with corporations, we would treat the company more or less as we treat the state. That is, we would recognize that PERSONAL freedom requires COLLECTIVE abstention. Employers can, for example, agree to allow employees freedom of belief or advocacy off hours; they can create an institution that is open to people of varying beliefs; they can maintain a more or less neutral space to make it possible for individuals to follow their consciences.

    In contrast, pretending that Chik-Fil-A — a legal entity with no conscience or cerebellum — has a religion or opinions is simply a legal fiction allowing its leaders to coerce all other Chik-Fil-A participants to act as the the leaders wish.

    When Chik-Fil-A takes an official position on the correct reading of the Bible — contending as a matter of corporate policy that the Bible requires hatred of our neighbors, rather than, for example, that a just God requires justice, the lesson of a single creation is the equality of all, or Exodus’s commitment to ending oppression extends beyond Pharaoh’s Egypt — the effect is to reduce freedom. Under corporate law, consumers have no mechanism to require that their funds be used for producing chicken sandwiches instead of lobbying to deny some American families basic rights. Employees have no right to state in the corporation’s name that its managers are wrong, or to vote to determine the corporation’s position, or to advocate better readings of morality or the Bible, or even to dissent without fear of firing. Even shareholders have no say on corporate policy, unless they control enough votes to elect the board of directors and preclude a lawsuit for breach of fiduciary duty if directors defer to them.

    Forced speech and forced religious practice and forced interpretations of Biblical teachings are the opposite of the freedoms the First Amendment is meant to protect. Just as we were less free when the Corporation of the City of Boston was allowed to require that every Bostonian follow the Boston City Council’s interpretation of the Bible, so too we are less free today when every Chik-Fil-A employee, investor and customer is required to associate with its (mis)interpretation.

    Instead, freedom belongs to individuals. Chik-Fil-A’s managers are (and should be) free to cause the corporation to give its employees and managers time to advocate their beliefs, or to pay its assets to its participants — as dividends, price discounts or payments for services rendered — so that they, as individuals will be free to advocate for the positions they actually believe.

    But neither free speech nor freedom of religion is advanced by Chik-Fil-A’s leaders’ attempt to use corporate law to coerce its participants into supporting (or pretending to support) their views, let alone misappropriating funds entrusted to them for other purposes entirely.

  11. mls says:

    Starbucks supports gay marriage. Would you infer that it therefore has a propensity to discriminate against Christians? It would be no more ridiculous than suggesting Chick-fil-A is going to discriminate against gays.

    Rahm Emanuel is not under the misapprehension that Chick-fil-A is likely to discriminate against anyone, and he wouldn’t care if they were. He believes that it is in his political interest to stoke hatred and resentment against the company and its owner, as well as anyone who opposes gay marriage. I doubt that he would hesitate to do the same to gay marriage supporters, if the political circumstances warranted.

  12. m.r. says:

    Mr. Greenwood,

    I’m pretty sure Chick Fil A is a privately held corporation, not a public corporation. So I’m not sure much of your analysis holds up, although it’s very passionate.

    But anyway, why is it “forced speech” when employees are free to work for companies whose political views/contributions are less offensive, and when consumers are free not to eat Chick Fil A sandwiches?

    I’m not sure you’ve really addressed the underlying issue — that is, whether a state actor can condition the right to do business on the political views its owners espouse.

  13. My comment above applies equally to close and public corporations. However, the notion that a closely-held corporation with a single shareholder should have rights in addition to the rights of its sole shareholder is even stranger than the idea of a publicly traded corporation having rights independent of any participant.

    A single shareholder controls the corporate board and can therefore cause the corporation, to the extent permitted by law, to pay a dividend to the shareholder at any time. Once the dividend is paid, the property becomes the shareholder’s, not the corporation’s. The shareholder is then as free as any property holder to use his/her property to promote his/her religion or politics.

    The puzzle is why the First Amendment should hold that the shareholder also has the right to use corporate property for personal purposes, in violation of corporate law. The First Amendment does not license fraud or theft in other contexts; why should it here?

    As to the supposed freedom of employees to quit or consumers to go elsewhere: this is a misunderstanding of the speech and corporate law issues. Under our corporate law, corporations have the basic agency right to force employees to speak for them. The First Amendment does not exist to promote coerced speech.

    The right to quit does not eliminate the basic coerciveness of an employer requiring that employees practice its religion (if a corporation can have a religion in any meaningful sense) or follow its political line. If it did, the right to move would mean that Boston should have a Constitutional right to censor or impose an established religion or to use taxpayer money to lobby taxpayers to give it more money. We fought a revolution to reject this notion of tacit consent; the First Amendment does not reinstate it.

    In any event, the freedom to quit is highly fact dependent, not something we can just assume. Competition is rarely perfect. Often employees have seniority or health insurance, social networks, geographical limitations and other constraints on mobility. Consumers may as well, although probably not so much in chicken sandwiches as other areas.

    Business corporation law structures corporations for specific (and vital) economic reasons. The First Amendment — which long predates modern corporate law — should not be distorted to require us to allow these useful economic entities to distort our political processes.

    Nor should the Supreme Court constitutionalize corporate law in a latter-day Lochnerism. Either Chik-fil-A’s managers are fulfilling their fiduciary obligation and speaking on behalf of the interests of the corporation, in which case their views are state-mandated, not free. Or they are violating their fiduciary duty, in which case they have no right to use the corporation’s assets as their own. This is no more an issue of free speech than a burglar’s attempt to use the proceeds of his enterprise to advocate for Proudhon’s principle of property.

  14. AYY says:

    “pretending that Chik-Fil-A — a legal entity with no conscience or cerebellum — has a religion or opinions is simply a legal fiction allowing its leaders to coerce all other Chik-Fil-A participants to act as the the leaders wish.”

    Who are these “participants” of which you speak? The customers don’t have to adopt a point of view. Neither do the people who work in the kitchen.

    “When Chik-Fil-A takes an official position on the correct reading of the Bible — contending as a matter of corporate policy that the Bible requires hatred of our neighbors, rather than, for example, that a just God requires justice, the lesson of a single creation is the equality of all, or Exodus’s commitment to ending oppression extends beyond Pharaoh’s Egypt — the effect is to reduce freedom.”

    I don’t know for sure, but I’d willing to guess that if you asked a spokesman for Chik Fil A if company policy requires hatred of their neighbors, he’d tell you “no”. The rest of the sentence begs the question.

    “But neither free speech nor freedom of religion is advanced by Chik-Fil-A’s leaders’ attempt to use corporate law to coerce its participants into supporting (or pretending to support) their views, let alone misappropriating funds entrusted to them for other purposes entirely.”

    Let’s assume you’re right. What business is that of the mayors of Boston, Chicago and SF? They don’t have enough to worry about running their own cities? They have to make sure management doesn’t violate its fiduciary duties? If the stockholders don’t mind, then why do the politicians have to get involved.
    Besides I haven’t heard one word from these mayors that suggested that their positions are based on a concern about the fiduciary duty that management has to its stockholders

    And if what you’re saying about coercion is true, then corporations shouldn’t have any policy either for or against gay marriage. Either way it’s coercive.

  15. Ken Arromdee says:

    When Chik-Fil-A takes an official position on the correct reading of the Bible … the effect is to reduce freedom.

    The same argument could be made for Biblical positions other than anti-gay ones. Just stating that you are a Christian means that you is stating that the religious beliefs of millions of non-Christian Americans are false. In that case, Chik-Fil-A shouldn’t be able to get away with it just by disavowing any anti-gay beliefs, they also need to disavow the belief that Jews, Muslims, and atheists have chosen the wrong path.

    In fact, the same argument could be made for any positions on controversial issues whatsoever. A company that express pro-gay views, or pro-social-justice views (especially if, as you suggest, they do so on a religious basis), is still “coercing their participants into supporting or pretending to support their view”. If it’s coercion at all, then it’s just as much coercion, and therefore just as illegal, for a “good” view as for a bad one.

  16. Ken Arromdee says:

    is->are, I know grammar, that’s just an editing error

  17. AYY: Investors, employees and customers all contribute funds and work to the corporation, which exists only because of their collective efforts. Corporate management then diverts those efforts to support its political platform. That is coercion of corporate participants to act as management wants.

    Liberty within the necessary coercion of corporate collectivism, would require an opt-out provision at a minimum, or perhaps the full panoply of liberal rights, including corporate neutrality on issues of religion and conscience.

    On your other point, fiduciary duties are owed to the corporation, not just its shareholders; the mayors are quite clearly claiming to be acting on behalf of corporate participants who have no voice in current corporate law. But whether the mayors are right or not is irrelevant to my point. Corporations continue to have no reasonable claim to religious freedom even if mayors are politically grandstanding.

    Ken: It is not illegal for a corporation to coerce its employees. On the contrary, coercion is the core of corporate law, which is centrally about duties, not rights. Nor is there anything illegal about a corporation taking a position — right or wrong — on a controversial issue, so long as the managers and directors cause the corporation to take that position in pursuit of the corporation’s interests rather than their own personal ones.

    The issue is, rather, whether corporate management is entitled to assert that the First Amendment rewrites corporate law or leaves the citizenry powerless to restrict corporate management or to protect the freedom of citizens who work for, or provide the money for, or have to compete with the advertising and lobbying of business corporations.

    Free speech and religion **values** demand limits on corporate coercion (that do not exist in current law) and practices of corporate neutrality (that are common but not universal) for exactly the same reasons that they demand governmental neutrality. Freedom for collective governance entities is never the same as freedom for the governed. We’d all be freer if business corporations limited themselves to business, and left Biblical interpretation to human beings and religious associations.

    However, First Amendment **law** should be silent in this area: the First Amendment does not restrict business corporations (due to the state action doctrine) and should not privilege their managers (for the reasons stated above). The struggle for freedom in the corporate world belongs elsewhere.

  18. AYY: The merits of Chik-fil-A’s managers Biblical interpretation are irrelevant, of course, to whether they are entitled to misuse the corporate vehicle to promote it.

    On those merits, however, the most obvious explanation of their interpretation is hatred, regardless of what they’d pay their PR person to say or what verse they’d use to insist that they are exempt from the central requirements of morality and fellow-citizenship.

    The sin of Sodom, the only sin so great it could justify destroying the entire city, the Talmud explains, was “hatred-for-its-own-sake.” Ordinarily selfish people, it explains, hurt others to benefit themselves. The Sodomites, however, went further — they would hurt others even when they expected no benefit at all.

    Barring our gay fellow citizens from marrying harms them without helping anyone else. Thus, the anti-gay marriage position is pure Sodomy — hatred of our neighbors for its own sake.

    A more text-based Biblical interpretation might begin with “it is not good for man to be alone.”

  19. Erica Goldberg says:

    Daniel Greenwood,

    I appreciate your arguments, although I disagree because I think courts should look at the speech, not just the speaker, when attaching First Amendment protections. I assume your views do not apply to the NYTimes, or other corporations that produce speech for profit…

    What about the argument that, if a permit were denied Chick-fil-A, it would be to punish Dan Cathy, the president, for his views?

  20. AYY says:

    Daniel Greenwood 18
    You addressed the comment to me, but I assume that you meant one of the other commenters. I didn’t say anything about the merits of the biblical views.

  21. Ken Arromdee says:

    Daniel: Why are you invoking the Talmud? The Talmud is a Jewish book. The religious beliefs in question are Christian.

  22. AYY 20, I was responding to AYY 14 para 4.

    KA21, Interpretations are persuasive or not regardless of their provenance. I cite the Talmud because the Talmudic authors often place a great emphasis on careful reading and therefore can be a useful foil to the freer interpretive tradition of so-called “fundamentalists” who claim to read “literally” but often seem to pay little attention to the actual text or its meaning.

  23. Erica —

    In a democratic republic, fundamental rights belong to citizens, and sometimes to people. “Speech” has no standing to assert rights in court and no claims to moral rights.

    The First Amendment was meant protect the rights of citizens to govern themselves collectively and to protect them in their opinions and consciences from collective domination. Nothing in its language, history, or context justifies verbal games that turn it on its head to replace popular self-government and individual freedom with, instead, bars on misuse of position by corporate officers. To make our tools into our masters is a form of idolatry.

    As for the NYT: The NY Times should have First Amendment rights to the extent that it is a proxy for the human beings who author articles and is representing their freedom. That’s a core part of the job of a publisher acting as agent for its authors.

    But the first step is to identify what rights-bearer the corporation is purportedly representing.

    As a corporation speaking for itself rather than a publisher, the NYT Corporation is no different from Chik-fil-A and has no legitimate claim to be considered a citizen that needs protected rather than an institution from which we may need protection.

    When the Times Corporation is speaking as a corporation, not as a publisher, it is like any other corporation. Its speech — meaning the paid productions of agents who will be terminated if they do not produce something that reflects the views of their superiors — reflects the judgments of fiduciaries acting under compulsion of law (or in violation of it) as to the interests of the corporation.

    The actual speakers have no free speech to be protected here, because as servants they are not speaking freely. The PR flak’s right to sell his/her ability to produce persuasive rhetoric is valuable in a market economy, but it is an economic freedom, not freedom of speech.

    Nor can the servants’ speech be assimilated to their master — the master, as a matter of corporate law, is the legal entity, not any citizen. The entity is a tool for one important but limited human value, not a rights-bearing actor entitled to respect in its own right.

    The law is clear: The entity is legally required to act (including by speaking) only in its own interest. It may take account of the national interest or any of the many human values — beginning with morality itself — that might make people act contrary to their interest, only to the extent that those values or interests advance its own interest. Thus, so long as its managers obey the law, “its” speech will always reflect the law that created it as a one-sided instrument, not the free opinions or conscientious values of any citizen.

    Legally mandated speech that is legally required to ignore the central issues of political debate does not deserve First Amendment protection under any theory of freedom of speech. (In Chick-fil-A’s case, it seems more likely that the corporate manager is actually using his corporate office to promote Dan Cathy’s individual values, not the corporation’s interests. This is an obvious violation of fiduciary duty, even if corporate law provides no functional remedy. For First Amendment purposes, the question is whether this abuse of office is somehow entitled to constitutional protection. The answer must be no: the freedom of speech is not the freedom to steal.)

    As for Dan Cathy, the argument that restrictions on the corporation restrict its shareholder’s speech is simply wrong.

    Cathy remains free to spend his money and speak his mind. He remains free, within the creditor protection constraints of corporate law, to cause the corporation to move money out of the corporation and into his personal control. Indeed, he is free to dissolve the corporation and do business as a property owner (sole proprietor), in which case Chik-fil-A’s speech would be his speech.

    But so long as he chooses to take advantage of the privilege of separating Chik-fil-A’s property and actions from his own — and thereby avoiding any personal responsibility for its actions or taxes on its assets — basic consistency means that he is separate from the firm. If he is not responsible for the firm, punishing the firm is not punishing him.

    The “freedom of speech” is not the same as the “freedom to violate corporate law by using corporate assets for personal purposes, the freedom to cheat on your taxes by claiming a business deduction for a personal expense, or the freedom to use funds and other resources that are not your own to promote your views.” Those are the freedoms to cheat.