Chick-Fil-A, Thomas Menino, and the First Amendement – Interview with Dustin Hecker
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On the 20th of July, Boston mayor Thomas Menino sent Dan Cathy, President of Chick-Fil-A, a strongly worded letter discouraging him from expanding his enterprise into his city. Proponents of both figures hastily emerged to voice their opinions on this issue. It seems that the scale ultimately tipped in favor of Cathy, as evidenced in Chick-Fil-A’s record breaking sales in the aftermath known as “appreciation day.”
Here to answer some questions and offer some analysis of this event is Dustin Hecker, co-chair of Posternak Blankstein & Lund LLP’s Litigation Department. Hecker concentrates his trial practice on the prosecution and defense of business-related disputes, rendering him a valuable resource in determining right and wrong in this dispute of free speech.
Why did Menino and others single out Chik-Fil-A?
Dustin Hecker: There was a good deal of publicity about the statements made by the president of Chick-fil-A, coupled with the fact the company was seeking to expand into Boston. Put it together and it was an opportunity most politicians could not pass up.
What authority does the mayor have to deny or discourage a particular business from setting up shop in his city?
DH: Assuming the business is prepared to comply with all applicable laws and regulations, including anti-discrimination laws, there really is nothing the mayor of Boston can do, ultimately, to prevent it from setting up shop here. However, Mayor Menino certainly can use his bully pulpit to try to make a point about the business or to try to convince its management and owners to change some of the business's policies. Or, in this case, to try to convince the public that its owner's point of view on a matter of public concern is not correct.
How does Menino’s condemnation differ from Chicago Alderman Joe Moreno’s flat out refusal of permit?
DH: I have not really followed the Chicago debate; however, I doubt the alderman in question has the legal authority to prohibit a permit from being issued in Chicago to a business that would comply with applicable regulations. To date, the City of Boston has not denied a permit. Mayor Menino’s letter does not even state the city would deny a permit.
Just how much of a role does the First Amendment play in this situation?
DH: As of now, the First Amendment has essentially nothing to do with this dispute. The owner of the company, speaking as a private citizen, has voiced his point of view about a matter of public concern. Private citizens, so far acting as such, are protesting against his point of view. The mayor of Boston is entitled to join the debate with his political and personal points of view. Nothing in the First Amendment prohibits or, really, even protects any of that.
The First Amendment could become implicated in the event the City of Boston denies the necessary permits for Chick-fil-A to operate in Boston or, perhaps, if the city pressures an owner of real estate not to deal with Chick-fil-A. The First Amendment likely would prohibit the federal government (or, as here, a municipality of a state) from denying a permit to operate a business that is available to other similarly-situated businesses based on a disagreement about its owner's point of view on a controversial matter of public concern.
How does Menino’s letter impact the notion of corporate responsibility to social justice?
DH: My guess, and that is all that it is, is that Mayor Menino's letter probably will have minimal impact in and of itself. There are certain social causes that corporations will support, other causes that some businesses will oppose, and quite a few others that most businesses will conclude have nothing to do with their business and so do not merit a position one way or the other. The controversy could chill the interest of owners of other companies from stating their points of view if they perceive those points of view are not popular. Which, ironically, is a result that the protections for speech that we loosely call "First Amendment rights" are designed to avoid.
What can this incident teach us about the way consumer expectation and regard of corporations have evolved over recent years?
DH: Consumer boycotts of corporations because of their practices or their owners’ beliefs are by no means unprecedented. Many businesses were targeted for protests in connection with, for example, continuing to do business with South Africa while apartheid was still the law there. Sit-ins of private businesses' soda counters helped integrate the South (as well as the North).
Why would Chik-fil-A take sides in a heated debate, and essentially alienate a portion of their customer base?
DH: My guess is that the owner of the company did not anticipate the amount of negative publicity his company received. The company certainly has tried to distance itself from the publicity, while reiterating its Christian roots and that it does not discriminate in its employment or business practices. It also is not clear that the portion of its customer base that was alienated by its owner's comments is larger than the portion that seems energized by them.
Finally, "witnessing" is something that evangelical Christians often do. I would not expect that the evangelical owner of a company that proudly displays its Christian beliefs on its website will stop talking about such a hot button issue with social conservatives until – and unless – he sees a real negative effect on his business. And, according to the company, "Chick-fil-A Appreciation day” was a banner day for sales.
ABOUT THE AUTHOR: Alex Levin
Alex Levin is a writer for Seeger Weiss LLP, a top ranking Plaintiff’s law firm specializing in injury cases, consumer protection, and commercial disputes.
Copyright Seeger Weiss LLP
More information about Seeger Weiss LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
Why did Menino and others single out Chik-Fil-A?
Dustin Hecker: There was a good deal of publicity about the statements made by the president of Chick-fil-A, coupled with the fact the company was seeking to expand into Boston. Put it together and it was an opportunity most politicians could not pass up.
What authority does the mayor have to deny or discourage a particular business from setting up shop in his city?
DH: Assuming the business is prepared to comply with all applicable laws and regulations, including anti-discrimination laws, there really is nothing the mayor of Boston can do, ultimately, to prevent it from setting up shop here. However, Mayor Menino certainly can use his bully pulpit to try to make a point about the business or to try to convince its management and owners to change some of the business's policies. Or, in this case, to try to convince the public that its owner's point of view on a matter of public concern is not correct.
How does Menino’s condemnation differ from Chicago Alderman Joe Moreno’s flat out refusal of permit?
DH: I have not really followed the Chicago debate; however, I doubt the alderman in question has the legal authority to prohibit a permit from being issued in Chicago to a business that would comply with applicable regulations. To date, the City of Boston has not denied a permit. Mayor Menino’s letter does not even state the city would deny a permit.
Just how much of a role does the First Amendment play in this situation?
DH: As of now, the First Amendment has essentially nothing to do with this dispute. The owner of the company, speaking as a private citizen, has voiced his point of view about a matter of public concern. Private citizens, so far acting as such, are protesting against his point of view. The mayor of Boston is entitled to join the debate with his political and personal points of view. Nothing in the First Amendment prohibits or, really, even protects any of that.
The First Amendment could become implicated in the event the City of Boston denies the necessary permits for Chick-fil-A to operate in Boston or, perhaps, if the city pressures an owner of real estate not to deal with Chick-fil-A. The First Amendment likely would prohibit the federal government (or, as here, a municipality of a state) from denying a permit to operate a business that is available to other similarly-situated businesses based on a disagreement about its owner's point of view on a controversial matter of public concern.
How does Menino’s letter impact the notion of corporate responsibility to social justice?
DH: My guess, and that is all that it is, is that Mayor Menino's letter probably will have minimal impact in and of itself. There are certain social causes that corporations will support, other causes that some businesses will oppose, and quite a few others that most businesses will conclude have nothing to do with their business and so do not merit a position one way or the other. The controversy could chill the interest of owners of other companies from stating their points of view if they perceive those points of view are not popular. Which, ironically, is a result that the protections for speech that we loosely call "First Amendment rights" are designed to avoid.
What can this incident teach us about the way consumer expectation and regard of corporations have evolved over recent years?
DH: Consumer boycotts of corporations because of their practices or their owners’ beliefs are by no means unprecedented. Many businesses were targeted for protests in connection with, for example, continuing to do business with South Africa while apartheid was still the law there. Sit-ins of private businesses' soda counters helped integrate the South (as well as the North).
Why would Chik-fil-A take sides in a heated debate, and essentially alienate a portion of their customer base?
DH: My guess is that the owner of the company did not anticipate the amount of negative publicity his company received. The company certainly has tried to distance itself from the publicity, while reiterating its Christian roots and that it does not discriminate in its employment or business practices. It also is not clear that the portion of its customer base that was alienated by its owner's comments is larger than the portion that seems energized by them.
Finally, "witnessing" is something that evangelical Christians often do. I would not expect that the evangelical owner of a company that proudly displays its Christian beliefs on its website will stop talking about such a hot button issue with social conservatives until – and unless – he sees a real negative effect on his business. And, according to the company, "Chick-fil-A Appreciation day” was a banner day for sales.
ABOUT THE AUTHOR: Alex Levin
Alex Levin is a writer for Seeger Weiss LLP, a top ranking Plaintiff’s law firm specializing in injury cases, consumer protection, and commercial disputes.
Copyright Seeger Weiss LLP
More information about Seeger Weiss LLP
View all articles published by Seeger Weiss LLP
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
