Free Speech, Hate Speech, Chick-fil-A Speech

Posted on August 3, 2012 by

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Even vegetarians who don’t own televisions and live on Mars are, by now, aware of the Chick-fil-A brouhaha. Dan Cathy, CEO of Chick-fil-A, made public, anti-gay statements. And then it turned out that Chick-fil-A funnels buckets of money to anti-gay organizations.

The fight since then is about two things: gay rights and free speech.

Let’s get the first one out of the way. Gay rights? Yep, I support them. Wholeheartedly. As someone who believes that we all have a duty to respect and care for our fellow human beings, regardless of sexual orientation, race, ethnicity, religion, sex, political views, or dog vs. cat pet ownership status.

Now, free speech.

Yeesh. The public discourse on the issue has done a fabulous job of highlighting just how uneducated we are when it comes to free speech issues. So let’s set the record straight (oh, pardon the pun, dear reader!) on what’s going on with Chick-fil-A and speech.

First, the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It’s helpful to think about the term, freedom of speech, and ask yourself, “freedom from what?” The answer is Congress. Or, more broadly, the government as the Supreme Court has made it clear that first amendment protections extend not just to federal actions (Congress), but to the states as well.

Free speech is about being able to speak freely without government interference. Those protesters who are boycotting Chick-fil-A because of Cathy and Chick-fil-A’s corporate stance on religion, family, and sexuality are NOT infringing upon Cathy’s free speech rights. By definition, the only body that can do that is the government.

Protesters are merely that – protesters. Both they and Cathy are merely participating in the marketplace of ideas.

Now, the mayor of Boston is another story.

Mayor Thomas Menino sent a letter to Chick-fil-A telling Cathy that the business wasn’t welcome in Boston.

Oh, snap, now we got a problem.

While I love, love, love the fact that Menino is publicly supporting gay rights and calling out Chick-fil-A for their hatefulness, if Menino goes further than “not welcome” and actually takes steps to prevent Chick-fil-A’s business enterprise on the basis of Cathy’s speech and beliefs, well that, my friends, is a free speech violation.

Menino is government. Your freedom of speech is freedom from government interference.

It makes me want to vomit, but the various mayors who have said they’ll try to block the fast food chain’s presence are wrong.  Mayors can participate in the marketplace of ideas, but they can’t use the power of the state to silence or impede others solely on the basis of speech and beliefs. Thus, the KKK gets to clean up the highway if they want to. Again, makes me want to vomit, but that’s what speech is all about.

Allowing ugliness keeps us free from governmental and political oppression. Just ask Abbie Hoffman about his shirt sometime… he was busted for wearing a shirt designed to resemble an American flag. Or, you know, ask the Founding Fathers about how important free speech was to organizing the revolution.

But there are limits. Free speech is not Totally Unlimited, Unchecked, Anyone Can Say Anything Speech.

You can’t call fire in a crowded theater.

You can’t incite a riot.

You can’t use fighting words.

In the example of yelling “fire” in a crowded theater, we understand that the government has the power and duty to regulate speech that would reasonably hurt other human beings.

But what about hate speech? Where do we draw the line between a legitimate state interest to prevent violence and protecting someone’s right to voice their opinion?

Hate speech is murky territory. It is the ill-defined space between public safety and unpopular or ugly beliefs. The zone in which legitimate state interests intertwine with individual civil liberties. It is the part of the map in which no one can definitively say how far is too far.

Hate speech is generally protected as a first amendment activity, but not always. Take, for example, Title VII and Title IX. If employers allow hate speech and it creates a hostile environment in the workplace, employers can be sued. But an employee can say those same hateful things outside of work without censure.

So it’s tricky.

But I would argue that Chick-fil-A is engaging in hate speech. And that it creates a hostile environment for its employees by doing so. Unfortunately, the federal government does not recognized the LGBTQ community as protected by civil rights provisions.

There are a number of local jurisdictions who do, and I think the only legitimate way that government can deal with Chick-fil-A’s homophobia is through employment law and hostile environment provisions.

But bottom line: all those protesters? You keep at it. As long as you are a private citizen, Cathy’s first amendment rights won’t be violated in the slightest.

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