Playing Chicken with the First Amendment

Chick-fil-A CEO Dan Cathy’s ringing endorsement of the traditional family has caused quite a stir.  More than a few of my Gen X and Millennial former students have vowed (on Facebook) never to darken the doors of their erstwhile favorite chicken restaurant again. I can’t help but wonder if they’re so scrupulous about the political views of the owners of all the businesses they patronize.  (For the record, I doubt it.  Also for the record, so far as market behavior is concerned, the consumer is sovereign and can make his or her decision on the basis of any information—or misinformation —he or she chooses.  Of course, I’d prefer information to misinformation , but markets are imperfect.)

But various politicians—among them, Boston Mayor Thomas Menino and Chicago Alderman Joe Moreno —have also jumped into the breach on behalf of their offended constituents. To be sure, like their constituents, they’re entitled to say whatever they want. And they can even refuse as individuals to patronize Chick-fil-A.  But when they make the move from voicing their opinions to denying a building permit, business license, or contract on the basis of Dan Cathy’s views, they have, as Eugene Volokh observes, run afoul of the First Amendment, which doesn’t permit viewpoint discrimination.

Does Chicago Mayor Rahm Emanuel really want to spend his city’s scarce resources defending this aldermanic act against a plaintiff with strong convictions, deep pockets, and a solid First Amendment claim?

My advice to the political leaders out there: Use this as a proverbial “teachable moment” about toleration and the limits of government.  My advice to the aggrieved proponents of same-sex marriage: politicians with the courtier spirit displayed by Mayor Menino and Alderman Moreno are not your best friends.  They’ll pander to anyone loud enough and powerful enough.