Monday, August 06, 2012

Misunderstanding What Free Speech Means

In the wars of words swirling around Chick-fil-A this week, I saw many supporters of CfA's "Appreciation Day" saying they were in it to support CEO Dan Cathy's right to free speech on principle, while not necessarily taking a position on the content of Mr. Cathy's views. The discussions were disturbing to me for many reasons, including an apparently widespread confusion about our constitutional right to free speech, a confusion which went across the ideological spectrum.

On the "blue" end of the spectrum, some liberal mayors of large cities were stating that Chick-fil-A was not welcome in their jurisdictions. Boston Mayor Thomas Menino wrote in a letter that "Chick-fil-A had no place on the Freedom Trail", implying that he would block plans to open a Chick-fil-A in Boston's historical center. Chicago Alderman Joe Moreno along with Mayor Rahm Emanuel announced their intention to block Chick-fil-A from opening in Moreno's ward. While I personally appreciate the sentiment behind these moves, they are wholly inappropriate and unconstitutional. For a government official to block or interfere with a law-abiding company, merely on the basis of the company or its owners' stated values being unpopular, is a clear and direct violation of the First Amendment. (Well, for a state or local official, it's a violation of the First in concert with the Fourteenth Amendment, but that's getting technical.) If the right to free speech means anything, it means that a person (or the companies they own or manage) will not be treated adversely by the government on account of their views and statements. Fortunately, the ACLU exists to maintain a principled defense of free speech rights, and they already have Dan Cathy's back on this. A senior attorney for the ACLU of Illinois called Moreno's actions "wrong and dangerous," saying "We don’ think the government should exclude Chick-fil-A because of the anti-LGBT message. We believe this is clear cut." Comedian Jon Stewart and Salon columnist Glenn Greenwald also jumped on the mayors for their unconstitutional overreaction.

On the "red" end of the spectrum, many commenters seemed concerned that the firestorm of criticism of Dan Cathy and the calls to boycott Chick-fil-A were somehow infringing Cathy's right to free speech. This is just a fundamental confusion. Criticism and calls to boycott (as long as they are coming from private citizens and not government officials) are categorically not infringing anyone's right to free speech. They are free speech. The Constitution guarantees citizens a right to express their views without fear of legal penalty or adverse treatment based on the content of their views. When the US Government, under the infamous Sedition Act of 1798, was fining and jailing newspapermen for printing criticism of the Adams administration, that was a clear violation of the First Amendment. That's the sort of thing the First Amendment was meant to protect against. The First Amendment does not, however, protect anyone from being criticized or their businesses being boycotted by those who disagree with their views. Mr. Cathy's right to express his views is not infringed when someone else exercises their right to criticize him, nor when someone exercises their right not to buy his chicken sandwiches. (Fortunately, those concerned that calls for boycotting Chick-fil-A somehow infringed Mr. Cathy's constitutional rights stopped short of calling for a government mandate to buy chicken sandwiches.)

While there may be some people who turned out on "Appreciation Day" to support the principle of free speech, I suspect that many of those claiming that motive were actually motivated by support for Cathy's particular viewpoint rather than any general principle. Fortunately, there's a simple test to tell the difference. Do you donate or at least verbally support the ACLU, an organization which has consistently defended the principle of free speech, even when the content of the speech was completely odious to many of the ACLU's own financial supporters? Did you support JC Penney when they were threatened with a boycott over their choice of openly lesbian Ellen DeGeneres as a spokesperson? Did you support the Dixie Chicks when they were massively boycotted for making public statements critical of then-President Bush? If you claimed to be supporting Dan Cathy on the principle of free speech, but you can't answer "yes" to any of those questions, then you need to make an honest re-assessment of your true motivations.

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