The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
NBC News (Alyssa Newcomb) reports:
Commissioner Ed Harris provided "TODAY" Digital with the copy of a letter he sent Quincey, calling out the company's "corporate political commentary favoring the Democratic party" and announcing the decision to remove Coca-Cola machines from government facilities.
"Our Board felt that was the best way to take a stand and express our disappointment in Coca-Cola's actions, which are not representative of most views of our citizens," he wrote. "Our Board hopes that other organizations across the country are taking similar stances against Coca-Cola and sincerely wishes that future marketing efforts and comments emanating from your company are more considerate of all your customers' viewpoints."
I think this is likely unconstitutional, just as I think the same about San Antonio's exclusion of Chick-Fil-A from the San Antonio airport based on Chick-Fil-A's donations to groups that opposed homosexuality.
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 Service, Inc. v. City of Northlake (1996):
Recognizing that "constitutional violations may arise from the deterrent, or 'chilling,' effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights," our modern "unconstitutional conditions" doctrine holds that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected … freedom of speech" even if he has no entitlement to that benefit….
Our unconstitutional conditions precedents span a spectrum from government employees, whose close relationship with the government requires a balancing of important free speech and government interests, to claimants for tax exemptions, Speiser v. Randall (1958), users of public facilities, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist. (1993); Healy v. James (1972), and recipients of small government subsidies, e. g., FCC v. League of Women Voters of Cal. (1984), who are much less dependent on the government [than are government employees] but more like ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing. The First Amendment permits neither the firing of janitors nor the discriminatory pricing of state lottery tickets based on the government's disagreement with certain political expression.
That's true of contracts to perform various services for the government, as in Umbehr and O'Hare Truck Service; and the same logic applies to contracts to allow Coca-Cola to place its vending machines on government property (presumably in exchange for a payment by Coca-Cola to the government). It may be able to terminate contracts, as it may fire employees (terminating their employment contracts), if the contractor's speech is sufficiently disruptive of the government's function; but there's no reason that there was indeed such disruption here.
To be sure, 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.
Members of the public can of course refuse to buy Coca-Cola; 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.