Law Mon Jul 30 2012

Dispatch from Chicago: Free Speech Meets Urban Planning at Chick-Fil-A

By Ramsin Canon

Should the City of Chicago deny Chick-Fil-A zoning relief because of the political opinions of its chief executive, Dan Cathy--and the political spending of the corporate parent?

Courtesy of Alderman Proco "Joe" Moreno and Mayor Rahm Emanuel, a bit of an internecine row broke out amongst liberals in trying to answer this question. Immediately after the news was announced, I poked fun at the idea of using state power to punish businesses for their political activities, suggesting city officials were being a bit selective in singling out Chick-Fil-A. After all, Boeing, which was in the running to manufacture killer drones, not only is headquartered here, but is feted by the administration and receives tax incentives.

Things escalated after Adam Serwer, Kevin Drum, Glenn Greenwald and others published articles criticizing Alderman Moreno and Mayor Emanuel for setting a dangerous precedent, denying a business regulatory relief to which they would otherwise be entitled because of the political opinions and activities of its chief executive. Count me among those who think the City of Chicago has no business considering the unrelated political activities of applicants for land use relief when making a decision. This comes with several caveats and excursuses.

One threshold issue: Mayor Emanuel did not say he would deny Chick-Fil-A (and can I just take a moment to tell you how grating it is to type "Chick-Fil-A" over and over again?) any zoning relief, only that he opposed their entry into Chicago personally, in principle, because of the politics they embody. Granted, he was treading on thin ice given his rocky relationship with the Chicago Cubs and the staunchly conservative patriarch of the Ricketts family that owns them -- but expressing his displeasure at their business practices and expressing his opinion as to whether they would be welcome or not -- even encouraging a boycott -- is his own prerogative and in fact his free speech right; arguably, what he was elected to do.

On Monday, Lee Fang, a great reporter for The Nation, took up the gage these liberals had dropped, arguing that Chicagoans had every right to choose who comes into their community, and that in fact, state power is one of the few things liberals have at their disposal to combat the fusion of corporate power and political activity that is anathema to progressives. His piece argues that the problem isn't only Cathy's views, but also that Chick-Fil-A spends corporate revenues, into the tens of millions of dollars, to fund anti-gay causes. For liberals to criticize the City Council for trying to deny Chick-Fil-A, therefore, is to validate the idea that corporations enjoy free speech rights -- a tacit or practical endorsement of the much-excoriated Citizens United decision.

There are two important substantive responses to this. First is the legal one about the constitutional limits to urban planning discretion; the other is a practical one focusing on politics, Citizens United and corporations as enjoying speech rights.

As a strong supporter of the labor movement, I'm certainly receptive to communities using state power to keep out businesses that engage in unsavory anti-competitive or anti-labor practices. But these are business practices. If an employer is a notorious union buster, or aggressively drowns out small businesses, cities certainly can use their planning laws to keep them out. Using planning to manage competition is not unconstitutional. The use of such discretion is little different from pressure the city put on Midwest Generation to shut down early because of the (legal) damage they were doing to their immediate environment. Municipalities have home-rule powers that permit them to exercise precisely this kind of discretion.

Aggressively anti-union employers could also be subject to this type of exercise of discretion again because the decision would not be based on "purely political" activities, but on business practices. Ultimately, how a company actually does business is a planning issue; the purpose of comprehensive urban planning is to encourage good businesses and discourage deleterious businesses. Thus cities may use what discretion is available to them to keep out businesses that do not fit into the modeled business community. It may not always be a good idea, but it is the community's prerogative. Thus communities can pass "living wage" requirements for employers of a certain size, enforce picketing rights, and so forth.

But there are limits, and those limits are First Amendment, particularly speech, limits. It is unconstitutional, for example, for a community to wholly ban "adult uses" [PDF] because such a ban would violate the free speech rights of the producers and retailers of adult materials. Fang introduces evidence that Chick-Fil-A is the subject of litigation alleging gender discrimination -- but if this were a criteria for exclusion, hundreds if not thousands of major employers would be subject to exclusion. Being a defendant in employment discrimination litigation is very common particularly for large employers, including governments. If such discrimination is going on in bad faith, that'd certainly be grounds for increased scrutiny, but the commonness of such litigation could hardly be a workable basis for exclusion from a community.

If "adult uses" can't constitutionally be excluded from a municipality, it stands to reason that purely political opinions cannot form the basis for exclusion. The reason cities historically tried to exclude sex shops, strip clubs, and the like, is because they don't "match the values" of the community. If you want to open up a communist reading room in Townsvilleburg, Idaho, I imagine you'd meet similar resistance from the Townsvilleburg Board of Zoning Adjustments, and if their denial rested on a mismatch of values, you'd have 20 (non-local) lawyers banging down your door to take that slam-dunk case.

If Chick-Fil-A has an organized corporate posture to discriminate against women and LGBTQ employees, they're breaking the law in Illinois. If they're discriminating against LGBTQ employees in other states without an Illinois-like statute forbidding such discrimination, they're loathsome, Fang's argument would be stronger, but the answer still wouldn't be to deny their zoning relief on the grounds of political views. The answer would be pass a blanket statute forbidding entry into the city by employers who maintain such policies.

Because once the state does something, you are raising the stakes. What Fang is actually providing evidence for is something else, something deeply necessary in a post-Citizens United political climate: the horizontal withholding of consumption. Boycotts. This brings us to the political argument.

Fang does his due diligence, showing how deeply embedded Chick-Fil-A (again, I can't emphasize enough how typing that name makes every subsequent word seem trivial) is with vehemently anti-gay charities and organizations. But this is an argument for boycotts, not for the use of the state's coercive power. And it precisely because of corporations' political power post-Citizens United that this is the case.

I've argued consistently since the Citizens United decision came down that the time was nigh to abandon electoral politics and its attendant legislative expression in favor of mass direct action in the form of the withholding of labor and consumption -- strikes and boycotts -- in order to build the necessary people power to match corporate power. If governments can consider the political activities of corporations or their ownership in making regulatory decisions, it is a mere matter of time before those very corporations that hold such incommensurate political power begin to capture that decision-making process to serve their own ends.

Corporate power in politics is a fact. Citizens United accelerated an already barreling trend. Any time government asserts a questionable power, it is incumbent on the public, particularly the political left, to consider the worst possible use of that power. It's necessary because the electoral and legislative process is in thrall to corporations, and any new assertion of power is likely to be used in service of corporate agendas. Thought about that way, from a purely political point of view, accepting that a municipality can exclude a business not because of a documented business practice qua business practice, but because of the political activities of the corporation, is de facto giving corporations immense power over potential future businesses.

If the City Council is concerned with the national business practices of potential entrants, why hasn't it passed an ordinance forbidding entry into the city by any business which in its business practices explicitly discriminates against certain classes or has been found to do so in a court of law? That option is and has been available to them. But ultimately, what is true of the nation is true of Chicago: business interests dominate our civic conversation. That is why public housing is dissolving, that is why the public school system is struggling to survive as public, that is why the city has given billions to corporations and major developers through tax increment financing districts. Tacitly recognizing the government's power to exclude a business -- or a development of any type -- because of the purely political activities of the applicant, besides baldly falling afoul of constitutional strictures, is, ultimately, a grant of new, menacing power to the very interests that need that power least.