Monday, July 30, 2012
As many of you probably heard, public officials in Boston recently declared that Chick-Fil-A (a fast food chain that specializes in fried chicken sandwiches) would not be welcome within the city limits because of the anti-gay sentiments expressed by the company's CEO. Officials in some places have gone so far as to threaten to deny Chick-Fil-A the permits it needs to open a store.
Over at Land Use Prof, Matt Festa asks whether a city could legitimately use zoning laws to block the sitting of a commercial enterprise based on the political views expressed by company employees. The answer, in short, is "no." Matt summarizes, "Many of us disagree with the Chick-fil-A CEO's opinions, but everyone seems to agree that it would be unconsitituional to prohibit the company's land use on that basis."
Eugene Volokh concurs and gets into the First Amendment weeds: "It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law . . . ."
While all that's true, I think it's important to acknowledge a point recently made by Matt Yglesias, "while the Constitution would almost certainly prevent Chicago from de jure banning Chick-fil-a on these grounds, it's almost trivially easy for jurisdictions to abuse the extremely wide discretion they're granted to de facto do the same thing." For example, Yglesias argues that Boston could simply pass a law that all fast-food restaurants must be open seven days a week. Since Chick-fil-a doesn't open on Sunday as part of its owners' socially conservative worldview, that would effectively ban the chain.