Free Speech

N.C. County Removes Coca-Cola Machines from Government Facilities Because of Coke CEO's Speech About Georgia Election Law

This violates the First Amendment, I think; the government generally may not discriminatorily terminate (or refuse to renew) contracts based on the contractors' speech on matters of public concern.

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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.

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  1. So, in real life, what happened to Chick-fil-A in San Antonio? Do they have an outlet in the airport?

      1. So when people you like are treated unfairly, it’s a microaggression which cries out for redress, and when it’s people you don’t like, you deride them for being butthurt? It’s hard to take your politics seriously.

        1. Assuming facts not in evidence.

      2. Butthurt over unconstitutional viewpoint discrimination by a public entity? What a bunch of snowflakes!

    1. I think there’s a much better reason to exclude Chick-fil-A from the airport, and that is that they’re closed on Sundays. Meaning people who travel on Sunday have one vendor less to choose from. If you’re going to be an airport vendor, I think you have an obligation to be open when people travel.

      1. That might have issues with some of these RFRA type laws.

        When you consider the driving motivation is to hurt Chick-fil-A rather than feigned concern for Sunday food service (feel your mind shifting gears to forcefully amp the concern for Sunday food service, dear readers? This means you.) because of the religious convictions of its owner, it’s even more obvious.

        1. Per some other responses, they could swap in Dr. Pepper machines.

          If the motivation is to unconstitutionally hurt Coke for its speech, is that still ok?

          Same exact issue with concern for Sunday food service for Chick-fil-A.

          1. If they replaced them with DP machines, I’d give them a full pass on the abuse of power.

          2. I think you can do all sorts of things motivated (as here) by an unconstitutional motivation if you don’t explicitly state the motivation. Of course they can change contractors for soda/vending machines. But once they openly say it is motivated by the speech of the vendor it becomes problematic.

            Mind you, I was a bit surprised that California’s “boycott” on state funded travel to states with laws it didn’t like was Kosher as it feels comparable. But then IANAL.

          3. There might also be a public safety concern — Coke machines are both heavy (if full) and top heavy — and have been known to seriously injure/kill people when they have fallen on people.

            Hence under the BLM protocols, the presence of a Coke machine in a public building is a “clear and present danger” because of the natural inclination of the public to destroy it. And likelyhood of being injured in the process.

        2. RFRA laws require reasonable accommodation so long as it doesn’t interfere with doing the job. I’m really not sure how you accommodate Chick-fil-A’s decision to close on Sunday while at the same time adequately servicing Sunday travelers.

          An airport vendor space is a limited and valuable piece of real estate. It should go to someone willing to accommodate travelers. Vendors exist to serve the traveling public and not the other way around.

          1. In a large airport, there are TONS of alternatives to eat at.

            1. Assuming that to be true, the problem still is that contracts should go to vendors willing to serve the needs of the traveling public.

              Suppose I own a deli, and an Orthodox Jewish employee refuses to handle ham, which also happens to be an item that I sell a lot of. If he says that I have other employees who can make the ham sandwiches, my response will be that that’s really not the point. He’s not doing the job he was hired to do, which is to make any sandwich a customer orders.

              Same here.

              1. Doesn’t sound kosher to me, either.

          2. Eh, maybe. There are lots of travelers late at night. Does that mean every vendor must stay open for those travelers? Patently, the answer is “no” because I frequently get off the plane and walk past closed outlets as I’m leaving the terminal. If those vendors are allowed to set their own open/closed hours on a Thursday (and they are), what justification is there in interfering with a vendor’s decision to set their own open/closed hours on a Sunday?

            Note: A service-level agreement type clause could be included in an airport vendor’s contract without triggering a constitutional challenge – but I don’t believe that most airports do that. And specifically, that’s not what San Antonio tried to do.

          3. RFRA laws require reasonable accommodation so long as it doesn’t interfere with doing the job.

            That sounds like Title VII on employers accommodating religious conduct of their employees. RFRA’s text typically mimics strict scrutiny, although it isn’t clear how strict it is and if it varies from state to state.

      2. Meaning people who travel on Sunday have one vendor less to choose from.

        One less out of dozens, in an airport of any size. That doesn’t seem terribly oppressive.

        If you’re going to be an airport vendor, I think you have an obligation to be open when people travel.

        That’s not how it works in the real world. I’ve walked through countless airports in the mornings and evenings with shops and restaurants largely closed. I’m sure you have as well. Vendors lease space from the airport and set hours as they see fit. Targeting CF’s choice re Sundays is purely arbitrary.

        1. This, I tend to fly very early and late during the day, and most vendors are closed despite the airport still being running. The airports don’t have a legitimate reason to not rent space to the organization willing to pay for the space.

          1. See my response to kalak above.

          2. “This, I tend to fly very early and late during the day, and most vendors are closed despite the airport still being running. The airports don’t have a legitimate reason to not rent space to the organization willing to pay for the space.”

            Yeah, I don’t recall seeing any rules about being open 24 hours a day.

            1. There should be a rule about being open every day though. It’s one thing to not expect full service at 2 AM; it’s another thing to have an entire day — one of the busiest flying days of the week, no less — in which something isn’t opened at all.

              1. If the lease on the space is awarded by competitive bidding, this is a self-correcting issue. Either CFA is so popular with travelers that it can make in six days what others make in seven, or it will lose out on the space. And if the former, it seems silly for the airport to object; they’re giving travelers what they want.

  2. They could have used health as an excuse.

    1. Not if they allow Pepsi or Dr. Pepper to take the place of the Coke machines.

      1. I think it has to do with the monopoly that Coke insists on.

        It’s that other people’s machines are NOT allowed…

    2. I think if they removed all vending machines that could be legal. although since they made this statemet a court could find otherwise.

  3. Uh oh, don’t let Col. Bat Guano find out what the board did or they’ll be in big trouble!

    Also, isn’t there a typo in their statement? I think they meant to say “Democrat Party”. That may cost them a few MAGA points.

  4. The university I went to entered into an agreement with one of the big soda companies that in exchange for a bunch of benefits for athletics they would get exclusive marketing across campus. So all soda machines except for that company were eventually removed, EXCEPT ONE. A faculty member, somehow got ahold of the agreement, and read it. For some reason competitor was defined a certain percentage of market share, so this guy went out and found a soda company under that. The answer was the maker of RC Cola at the time. And that faculty member personally installed this machine on campus much to the chagrin of the administration (don’t ask me why they didn’t just tell him to stop…) Students would hunt for the fabled soda machine because it was not easy to find and it was sort of a badge of honor to purchase a cold one from it before graduation.

    Also, this is a stupid post. The left doesn’t care about free speech so who really cares if some random county in the South yanked Coke machines as a protest.

    1. Pity. You were doing so well with such un-Jimmy the Dane-like coherence and amusement factor, and then you had to throw in that last line. It’s almost like you were worried that this comment might make you seem like someone who is not a nut.

      1. That was my worry. I finished typing an amusing story and thought “oh gees I need to put some crank factor in here” so then just went for the low hanging “this is stupid because liberals are stupid” approach. So bravo for recognizing the rhetoric.

    2. Coke did the same thing at UM Amherst, although it involved funding a “diversity” slush fund that, amongst other things, funded a visit from Louis Farrikhan…

      I’d love to know how the professor managed to install the RC machine without authorization from the university, though.

      1. Dr. Ed you must know that just like Trump said he might get away with shooting someone in the middle of New York City, a tenured professor can do the equivalent on a college campus (or used to be able to do so). I believe the professor just one day wheeled in the machine with the help of some grad students and *presto chango* you have an RC soda machine on campus.

  5. I’m sure all the usual critics of BDS policies are already lining up around the block to denounce this one.

    1. Why should we?

      People who deny a principle’s protects to others, lose it for themselves. That’s why the Geneva Conventions allow reprisals for violations of the Geneva Conventions: You dont’ get benefits that you refuse to give to others.

      The Left’s main method of action these days is to destroy the freedom of speech of anyone they disagree with. The proper response to that is to work to destroy the Left’s freedom of speech everywhere.

      #Karma

    2. I thought government denials of contracts for companies that participate in BDS were distinguished on the basis that such participation is conduct rather than speech.

      1. That is the argument. I thought about this comparison also, but the last thing we need is to hijack this discussion into that old dispute.

    3. Count me as a usual critic of BDS policies who is lining up to denounce this one.
      (Supporters of the policy have already begun to whine, “The Left started it,” but that excuse stopped working when you were five.)

  6. I’m curious about just what level of proof of discriminatory intent is required to win a case like this.

    Here’s a local example. The Carl’s Jr hamburger chain has been trying to get permission to open a store in Berkeley, CA for at least 40 years. Whenever they find an available site and apply for a permit the city council always finds an excuse to deny it. Nothing about why has ever been put in writing, but the entire Bay Area knows the reason: the council members don’t approve of the owner’s pro-life views.

    1. You see that is “equity” in action. Because “anti-abortion” is bad it is fine to discriminate against people who have that belief. And the entire press, government, and everything else in the power structure will run cover for you as long as you only discriminate against the “wrong” beliefs.

      Here you have some crazy wacky Southerners trying to buck the system and the system is going to have none of that. Coke = woke. Woke = good. Canceling Coke = bad. Therefore, must do something about it.

      1. Jimmy, you could barbeque an entire herd of cattle with that chip on your shoulder.

        1. Let them whine and mutter. Losing the culture war — and knowing you have no chance to reverse the tide of American progress against your wishes — probably is dispiriting and saddening.

          I wouldn’t know, of course, but I can try to put myself in clinger shoes.

          1. It’s not, yet, a “war” Rev.

            War is when lots of people are getting killed every day.

            500 million+ firearms in private hands, and growing.

            Keep on advocating for a war, and eventually you’ll get one

            1. Greg: The Army has tanks, drones, intelligence capabilities, and lots of things to make insurgents lives miserable. Don’t assume you know how such a war would turn out.

              1. Why did the Japanese not invade California?

                “In America, there is a rifle barrel behind every blade of grass.”

                And why hasn’t the War on Drugs gone well? The DEA has “tanks, drones, intelligence capabilities, etc” and I don’t see us even winning the war on Fentanyl….

            2. “Keep on advocating for a war, and eventually you’ll get one.”

              All-talk, blustering right-wingers are among my favorite losers as the liberal-libertarian mainstream continues to craft our national progress against the preferences and efforts of our vestigial, vanquished, dwindling clingers.

        2. You fail to say I am wrong though….

          1. You’re wrong.

            This is very much like sibling rivalry in which each sibling is hyper-sensitive to any perceived unfair treatment, real or imagined, and is absolutely convinced that the other one gets preferential treatment. You’ve convinced yourself that “the man” is biased against your viewpoint and does everything possible to keep you down.

            And you know what? If you find a hundred things to complain about, you’ll eventually find a genuine grievance; that’s the law of large numbers at work. But most of your grievances are more along the line of “he started it”.

            1. I don’t have to convince myself, it is there right in front of you to see in all of its naked glory. If you choose not to pay attention to it, well, that is your choice….

  7. Uh oh…

    The Surrey County Board is NOT going to be happy when they see Pepsi’s political positions.

    https://www.politicususa.com/2021/04/05/republicans-pepsi.html

    1. ‘member when, in the 1990s I think, Disney had a gay day, and then extended benefits to domestic partners?

      How astoundingly avant garde that was?

      Republicans, what were they doing? They were disobeying your social ostracism (and often legal) rules you (well, religion as motivator for political control) relied on for centuries.

      The last gasp of the TV religious organizations tried to cancel them, but Disney stuck to it and survived, and is doing fine now.

      And now you’re suddenly bent out of shape over that tool because someone else is using it?

      Nice pieces of work.

    2. I guess it’s time for RC.

  8. The scumbag lawyer profession is forcing hypocrisy on people. This government should have quietly given the contract to RC Cola. Price is not discriminatory. The taste is great, and it is popular with real Americans.

  9. They should have just said they were denying Coca-Cola any contracts due to it’s announced racial quota hiring policy being discriminatory.

  10. Let’s just take a moment and savor the idea that Coke is too commie for red-blooded North Carolinians.

    1. Which is pretty funny, because I live in NC and I can tell you that people here call all soda “Coke.” Except for cheerwine, of course.

  11. Honest question…

    What if people began to gather and protest the Coke machines? And/or began to deface them with messages stating it was because of Coke’s statements?

    Could the gov then terminate the contract because Coke’s behavior was creating turmoil? But for Coke’s statement nothing would have happened…

    I know… a bit of a heckler’s veto. But would the gov really be forced to maintain a contract that had real world costs based on their partners actions and not theirs? I suppose the closest analogy I can think of is commencement speakers maybe? In which case I suppose the school should keep their contract unless the speaker began to do things that would knowingly cause issues after the contract was signed… which would be like this issue maybe?

    Just thinking out loud. But my gut says the state just needs to deal with it until the contract is up then look for another supplier.

    1. Turmoil that interferes with government function would be a legitimate reason to cancel the contract. See the last sentence of the paragraph above beginning “That’s true of contracts…”.

      But vandalizing the soda machines probably wouldn’t meet that threshold because maintenance of the machines is (as far as I know, always) a vendor responsibility.

  12. They missed their opportunity. The county might have removed Coke products because of Coke’s illegal discriminatory contracting plans:

    https://www.powerlineblog.com/archives/2021/03/coke-demands-that-its-law-firms-engage-in-unlawful-discrimination.php

    That would have been a better (and likely constitutionally permissible) reason to dump Coke.

  13. I’d have more respect for the action if they refused to allow Coke machines on the premises because Coke [that which is made in the USA, anyway] contains High Fructose Corn Syrup, which is worse on your liver than ethanol! But the First Amendment issue is worrying.

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