By David Burr ‘13
Last month Dan Cathy, the CEO of Chick-fil-A, spoke out against marriage equality and landed sunny side down in a PR disaster that continues to damage the brand.
Members of the pro-gay rights community launched a nationwide boycott, joined by the mayors of Boston, Chicago, San Francisco, and Washington, D.C., who announced the restaurant would not be welcome to expand into their cities.
The company already had egg on its face after it was revealed to have donated more than $2 million to anti-gay causes in 2009, including support for the failed Proposition 8, California’s ban on same-sex marriage.
Only after Cathy’s most recent remarks, however, did a public office vow to take action to bolster the private backlash.
But birds of a feather don’t always flock together.
I am pro-gay rights and favor a private boycott, but I do not support the use of a public office to punish a business for its speech.
Dan Cathy is free to advocate a position on behalf of Chick-fil-A, and customers are free to punish the restaurant with a boycott. But if the First Amendment does not protect Cathy from private criticism and boycotts, it does protect him from state action.
So far the mayor of Boston, Thomas Menino, has walked back his statements, clarifying that he does not have the power necessary to block a restaurant from opening in his city.
Historically, that is not altogether true, and Chicago Alderman Joe Moreno signaled he knows it by saying, “You have the right to say what you want to say, but zoning is not a right.”
Under the guise of preventing “secondary adverse effects” (such as traffic or litter) or protecting morality, a municipality can use zoning laws to keep out a business whose exercise of speech it finds obnoxious. The burden of proving these effects is very low.
This tactic has been used for decades to deny permits to adult theaters (Young v. American Mini Theaters), nude dancing establishments (Barnes v. Glen Theater), and adult book stores (City of Los Angeles v. Alameda Books).
Is all of that really necessary to get Chick-fil-A to shape up?
Boycotts and public outcry continue to nip the heels of wayward businesses, producing unprecedented results without loosening the First Amendment’s muzzle. Global names such as Apple, Google, Starbucks, Microsoft, Nike and Oreo have come out in support for gay rights.
Oreo’s debut was not as warmly received as I’m sure it would have liked. It now faces a boycott because an ad it ran on Facebook featured its famous cookie with rainbow-colored frosting. Like Chick-fil-A, Oreo took a risk and now faces the consequences.
Still, for many companies it has become better business to speak than to be silent. And it has nothing to do with avoiding the wrath of the government.
I strongly doubt Cathy’s remarks will be the demise of Chick-fil-A. But hopefully the boycott is the beginning of the end of Chick-fil-A as we know it. I hope one day I can eat there in good conscience, knowing my money isn’t funding anti-gay campaigns.
We need more leaders to open their windows and proclaim solidarity with the movement for marriage equality. We need the mayors of Chicago, Boston, San Francisco, and Washington to stand firmly on our side and continue to loudly inspire the country.
The tides will continue to change. But I don’t want to see that happen by circumventing the First Amendment and letting slip the righteous dogs of government, even if they are right.