No Building Permits for Opponent of Same-Sex Marriage

The Chicago Tribune reports:

[Chicago Alderman] Proco “Joe” Moreno announced this week that he will block Chick-fil-A’s effort to build its second Chicago store … following company President Dan Cathy’s remarks last week that he was “guilty as charged” for supporting the biblical definition of marriage as between a man and woman….

The alderman has the ideological support of Mayor Rahm Emanuel.

“Chick-fil-A values are not Chicago values,” the mayor said in a statement when asked about Moreno’s decision. “They disrespect our fellow neighbors and residents. This would be a bad investment, since it would be empty.”

Moreno is relying on a rarely violated Chicago tradition known as aldermanic privilege, which dictates that City Council members defer to the opinion of the ward alderman on local issues. Last year Moreno wielded that weapon to block plans for a Wal-Mart in his ward, saying he had issues with the property owner and that Wal-Mart was not “a perfect fit for the area.” …

The alderman, serving his first full term, dismissed any First Amendment concerns.

“You have the right to say what you want to say, but zoning is not a right,” he said, adding that he also had concerns about traffic in the area….

In Boston, Mayor Thomas Menino reportedly took a similar view [UPDATE: but has since recanted]:

Mayor Thomas M. Menino is vowing to block Chick-fil-A from bringing its Southern-fried fast-food empire to Boston … after the family-owned firm’s president suggested gay marriage is “inviting God’s judgment on our nation.”

But denying a private business permits because of such speech by its owner is a blatant First Amendment violation. Even when it comes to government contracting — where the government is choosing how to spend government money — the government generally may not discriminate based on the contractor’s speech, see Board of County Commissioners v. Umbehr (1996). It is even clearer that the government may not make decisions about how people will be allowed to use their own property based on the speaker’s past speech.

And this is so even if there is no statutory right to a particular kind of building permit (and I don’t know what the rule is under Illinois law). Even if the government may deny permits to people based on various reasons, it may not deny permits to people based on their exercise of his First Amendment rights. It doesn’t matter if the applicant expresses speech that doesn’t share the government officials’ values, or even the values of the majority of local citizens. It doesn’t matter if the applicant’s speech is seen as “disrespect[ful]” of certain groups. The First Amendment generally protects people’s rights to express such views without worrying that the government will deny them business permits as a result. That’s basic First Amendment law — but Alderman Moreno, Mayor Menino, and, apparently, Mayor Emanuel (if his statement is quoted in context), seem to either not know or not care about the law.

Of course, if Chick-Fil-A actually discriminated in their serving or hiring decisions in Chicago in a way forbidden by Chicago or Illinois law, they could be punished for this violation, and possibly even denied future permits based on such illegal behavior. But the stories give no evidence of any such actions, and suggest that the city officials’ statements are based on the Chick-Fil-A president’s speech, not any illegal conduct on the company’s part. Finally, note that 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. Thanks to commenter CalderonX for the pointer.

UPDATE: Just to make clear, I think the government has even less power to control the speech of those it regulates than its (already heavily limited) power to control the speech of those to whom it awards government contracts. The Court, for instance, has repeatedly protected the rights of even heavily regulated businesses to speak; that the government may regulate the business in various ways, or even bar it from being in business, doesn’t mean that the government may restrict the speech of the business. See, e.g., Consolidated Edison Co. v. Public Service Commission (1980) (holding that even status as a heavily regulated monopoly doesn’t strip the speaker of First Amendment rights). And just as the government may not restrict speech by businesses that are already operating, so it can’t deny a business a license to operate based on its owner’s speech.

FURTHER UPDATE: To be precise, the permit is “to divide the land so it can purchase an out lot near Home Depot”; I call it a building permit as shorthand, because it’s a permit that would be needed for Chick-Fil-A to build and open its restaurant. In any case, nothing turns constitutionally on whether the case involves a building permit, a subdivision permit, a business license, or what have you.

STILL FURTHER UPDATE: The ACLU of Illinois likewise condemns the Chicago alderman’s statement.

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