Regulatory Retaliation, Round Two [UPDATED]
Some of you may recall a couple of years ago when some big city politicians announced that they would block Chik-Fil-E from opening up a store in their cities:
The uproar continues, and quite properly so (earlier here and here), over the threats of Boston Mayor Thomas Menino and Chicago alderman Proco (“Joe”) Moreno to exclude the Chick-Fil-A fast-food chain because they disagree (as do I) with some of the views of its owner. Among the latest commentary, the impeccably liberal Boston Globe has sided with the company in an editorial (“which part of the First Amendment does Menino not understand?…A city in which business owners must pass a political litmus test is the antithesis of what the Freedom Trail represents”), as has my libertarian colleague Tom Palmer at Cato (“Mayor Menino is no friend of human rights.”)
The spectacle of a national business being threatened with denial of local licenses because of its views on a national controversy is bad enough. But “don’t offend well-organized groups” is only Rule #2 for a business that regularly needs licenses, approvals and permissions. Rule #1 is “don’t criticize the officials in charge of granting the permissions.” Can you imagine if Mr. Dan Cathy had been quoted in an interview as saying “Boston has a mediocre if not incompetent Mayor, and the Chicago Board of Aldermen is an ethics scandal in continuous session.” How long do you think it would take for his construction permits to get approved then?
Given the amount of pushback they got, I had somewhat naively thought that we might not be going there again. As it turns out, though, that is not to be. The newest target is one Donald J Trump. In New York City:
New York City Mayor Bill de Blasio said Monday that his city may not be able to break its business contracts with Donald Trump but will avoid future deals with the 2016 GOP contender.
“My impression is that unless there has been some breaking of a contract or something that gives us a legal opportunity to act, I’m not sure we have a specific course of action,” the Democratic mayor told reporters Monday, according to CNN and Capital New York.
“But we’re certainly not looking to do any business with him going forward,” de Blasio added.
And Washington DC:
A pair of Democratic lawmakers are petitioning the Obama administration to block GOP presidential candidate Donald Trump from showcasing his name on the businessman’s new hotel in Washington, D.C.
In a letter to the Department of Interior and General Services Administration (GSA), Reps. Ruben Gallego (D-Ariz.) and Tony Cárdenas (D-Calif.) requested that Trump be prevented from having his name “prominently displayed” on the newly refurbished Old Post Office building on Pennsylvania Avenue, blocks from the White House.
“Trump’s recent and repeated remarks disparaging women, Mexican-Americans, and other Latinos are hateful, divisive and completely inaccurate,” the pair wrote to Interior Secretary Sally Jewell and recently confirmed GSA Administrator Denise Turner Roth in a letter dated Aug. 13.
And, once again, in Boston:
Donald Trump, a reality TV star currently yelling crazy shit on his way through a Republican presidential primary while sporting a sad trombone haircut, is not welcome in Boston.
Boston Mayor Marty Walsh told the Boston Herald Monday that Trump would have to apologize to immigrants for his inflammatory comments.
“I think his comments are inappropriate. And if he wanted to build a hotel here, he’d have to make some apologies to people in this country,” said Walsh, the son of immigrants from Galway.
Each of these cases differ slightly from the others. But as much as I am not a fan of Donald Trump, city contracts and business arrangements really should not depend on such things. I mean, really shouldn’t. We should at least be able to agree on that.
Given the givens, I have little issue with NBC using its pocketbook to cancel The Apprentice, or Macy’s to sever there relationship. But it does get different once we’re starting to talk about governments – even local ones – using their purse strings and regulatory levers to favor some people over others in such a fashion. Are there some circumstances in which I could imagine being okay with it? I don’t know… maybe? But not really. If their views are repugnant enough, there ought to be something behavioral that you can hang your hat upon.
Which doesn’t really work for Trump, of course, because as much as he hates illegal immigrants, one thing he doesn’t do is refuse to hire them.
This is pretty unlikely to be much of a slippery slope. First, because it’s unclear that they can even do what they’re talking about doing. It mostly looks like chest-thumping. But slope or so, this is the sort of thing that should be discouraged and opposed right out of the gate. Even if the “victim” is Donald Trump.
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.
So, according to Volokh at least, the above cases (save perhaps DC, which is not addressed) do actually fall into the same bucket, legally speaking.