-Submitted by David Drumm (Nal), Guest Blogger
The Civil Rights Agenda (TCRA) has filed a complaint with the Illinois Department of Human Rights accusing Chick-fil-A of violations of Illinois law, namely the Human Rights Act which prohibits a “public accommodation” from making protected classes “unwelcome, objectionable or unacceptable.” TCRA insists that “this is not a First Amendment issue,” and that “this is about Chick-fil-A having a policy, a corporate culture, which promotes discrimination.”
State or municipal public accommodation laws follow the Civil Rights Act of 1964, enacted to prohibit discrimination of blacks, which states that:
All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination … on the ground of race, color, religion, or national origin.
A proprietor, who wants to circumvent the Civil Rights Act of 1964, just has to use offensive racial epithets to make his black patrons choose to leave his establishment. Should his speech be protected under the First Amendment?
Rodney A. Smolla points out that it’s the “underlying nonspeech conduct” that is being regulated and that any penalty exacted on speech is incidental. In our proprietor example, his speech has the same effect as the conduct of refusing service to the black patrons.
However, Eugene Volokh writes that “these ‘it’s not speech, it’s conduct’ doctrines are misguided.” Volokh notes NAACP v. Claiborne Hardware Co. (1982) where speech, in favor of a boycott of white-owned businesses that constituted the “tort of malicious interference with respondents’ businesses,” was protected speech.
Daniel Koontz proposes a three-pronged test creating a new First Amendment exception:
(1) The proprietor or employee of the public accommodation speaks directly and specifically to a member of a protected class, as opposed to the public at large;
(2) The speech would cause a reasonable member of the protected category to believe that the proprietor did not want to extend to him or her full and equal enjoyment of the accommodation as a result of his or her membership in that protected category; and
(3) The totality of the circumstances indicates that the proprietor’s offensive statements are motivated by a desire to exclude the patron because of the patron’s membership in a protected category.
Clearly Dan Cathy’s comments would not violate any of Koontz’s prongs. Cathy’s personal opinions are far removed from any Chick-fil-A store, the public accommodation, via the company’s franchise arrangement. Any reasonable LGBT individual understands that Cathy’s statements deal with same-sex marriage, not the “full and equal enjoyment” of chicken sandwiches.
TCRA is just milking the Chick-fil-A controversy for its own publicity purposes, and this futile action reflects poorly on their cause.