The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
NBC News (Janelle Griffith) reports:
The San Antonio City Council voted recently to block Chick-fil-A from opening a restaurant at San Antonio International Airport, citing what it called the company's "legacy of anti-LGBT behavior."
The council voted 6-4 Thursday to approve a concession agreement for the airport that includes chains such as Smoke Shack BBQ and Boss Wood Fired Bagels and Coffee, provided it excluded a Chick-fil-A concept.
The vote came a day after Think Progress reported that newly released tax documents show the fast-food chain donated $1.8 million in 2017 to groups that discriminate against the LGBTQ community.
San Antonio Councilman Roberto Treviño said the council's action affirms the city's efforts to "become a champion of equality and inclusion."
When one looks at the Think Progress report, though, it's clear that the bulk of the objections have to do with the viewpoints of the groups to which Chick-fil-A donates. ("The Fellowship of Christian Athletes is a religious organization that seeks to spread an anti-LGBTQ message to college athletes." "Paul Anderson Youth Home … teaches boys that homosexuality is wrong and that same-sex marriage is 'rage against Jesus Christ and His values.'" "The Salvation Army has a long record of opposing legal protections for LGBTQ Americans.") Some have to do with Chick-fil-A's own viewpoint. ("Back in 2012, Chick-fil-A's CEO Dan Cathy opined that America is '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.'" "Chick-fil-A's CEO Dan Cathy opined that America is '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.' When pressed about the company's anti-gay positions, he responded 'Well, guilty as charged.")
A few objections have to do with employment discrimination by the groups and by Chick-Fil-A (though there's no indication that it's illegal employment discrimination): "The Fellowship of Christian Athletes is a religious organization that … requires a strict 'sexual purity' policy for its employees that bars any 'homosexual acts.'" "Salvation Army has a long record of opposing legal protections for LGBTQ Americans and at the time of the donations had a written policy of merely complying with local 'relevant employment laws.' The organization's website has since changed to indicate a national policy of non-discrimination based on sexual orientation and gender identity." "Chick-fil-A is one of a dwindling number of companies that still refuses to include explicit protection against discrimination on the basis of sexual orientation and gender identity in its employment non-discrimination policy." The government could demand that all their contractors not discriminate based on sexual orientation (at least setting aside constitutionally protected discrimination, just as in groups' choice of their clergy or, sometimes, their speakers), just as I think it can demand that they not discriminate against Israeli institutions or businesses.
But there's no indication that this is part of an evenhanded policy under which San Antonio doesn't deal with companies that lawfully discriminate based on sexual orientation or gender identity, or give money to groups that engage in such discrimination. Many people, for instance, donate money to churches, synagogues, mosques, or other religious organizatins of all denominations, and those institutions often don't have their own antidiscrimination policies (and, in many of the states in which they operate, aren't barred by state law from discriminating based on sexual orientation). Nothing suggests that San Antonio would refuse to contract with all these people. Rather, this seems an ad hoc decision that is likely motivated by Chick-fil-A's and its recipients' prominent speech (the cause of many past boycotts of Chick-fil-A).
If that's so—if the real reason for San Antonio's action is (even in part) Chick-fil-A's speech, and the speech of the charities to which Chick-fil-A donates—then this violates the First Amendment. The government generally may not discriminate based on a contractor's speech, or its expressive association, see Board of County Commissioners v. Umbehr (1996); O'Hare Truck Serv. v. City of Northlake (1996). The same would be true of discrimination against prospective contractors; the Court has made clear that discrimination against prospective employees is treated the same as discrimination against current employees, and Umbehr and Northlake were themselves based on the government employee speech cases.
The government may generally insist that, when it hires people to communicate a government message, those people use that government money only for the government-selected speech (see Rust v. Sullivan (1991)). But that power of the government to control its own speech is far removed from the government's attempt in this case to retaliate against businesses for their owners' speech.
Finally, this would of course apply to governmental refusals to deal with Nike because of its speech or expressive association (see this post), perhaps on the theory that Nike's speech is offensive to various patriotic Americans or families of police officers. Likewise, the government couldn't constitutionally refuse to deal with businesses that have owners who have publicly mocked religion, or that donate to anti-religious organizations—or that think Israel should not exist, or praise Hamas—even though many citizens may be offended by such businesses.
Members of the public can of course refuse to shop at Chick-Fil-A or buy from Nike or from the atheistic or anti-Israel or pro-Hamas business; no law forbids them from doing so. But the First Amendment does forbid the government from engaging in this sort of discrimination based on contractors' First Amendment activity.
UPDATE: See also this post by Hans Bader (Liberty Unyielding).