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Monday, January 10, 2011

Chick-fil-A meets Citizens United

There has been a minor dust-up, largely confined to the internet, over reports that ChikChick-Fil-A was the co-sponsor, along with the Pennsylvania Family Institute, of an event called The Art of Marriage, designed to give couples a chance to examine their marriages and what the Bible has to say about marriage. The Pennsylvania Family Institute also is leading efforts to put an anti-marriage-equality constitutional amendment to the public. Chick-fil-A insists (via Facebook) that the corporation is not a co-sponsor, but that an independent franchisee merely is donating food for the event. Of course, ChikChick-fil-A has long cultivated its image as a "Christian" company (famously being closed on Sundays); and the company, and its charitable arm, the WinShape Foundation, have been linked to a number of religious-conservative and anti-marriage-equality sources, including Focus on the Family. Implicit in the controversy is the  suggestion that, by patronizing Chick-fil-A (full disclosure: it is my absolute favorite fast-food chain and I did cartwheels when one opened on FIU's campus) one is supporting their anti-equality efforts and an appropriate response is for supporter of marriage equality (and gay rights generally) is to boycott the company.

Missing from this controversy is any suggestion that a corporation such as Chick-fil-A is wrong to sponsor political and social events (as opposed to the suggestion that it is wrong to take the position is is taking). No one is railing against its use of corporate wealth to influence a political issue. No one is complaining about Chik-fil-A drowning out other voices in the marriage-equality debate. No one is complaining that Chik-fil-A is abusing state-conferred benefits and power. No one is arguing that, because Chick-fil-A is not a person, it has no constitutional liberty to engage in these activities. No one is arguing that the state could (or should) stop Chik-fil-A from doing this. And no one is suggesting that the First Amendment has nothing to say about this type of corporate activity because it is not speech, only money.

So how do we reconcile this view of Chick-fil-A's activities with the ongoing drumbeat of criticism for Citizens United? The answer, I believe, is that this is not an election, but simply a singular event within the broader everyday public dialogue. Elections are different, uniquely important, and uniquely self-contained ("bounded") as expressive events--and the campaign-finance debate is over what we should do to recognize and acknowledge that uniqueness.

But if so, then Citizens United really is not about corporations v. natural persons, but is instead about campaign financing and the influence of expression by wealthy interests within political campaigns. And, as I argued years ago (and again after Citizens United last year), the argument against corporate speech really uses "corporate" as a proxy for wealthy, although there is no difference in terms of supposed harms (drown-out, corruption, undue influence, etc.) caused by corporate political expenditures as opposed to those by wealthy individuals. If we accept corporate expenditures on expression here, we must accept them in the electoral context--at least to the same extent as individual expenditures on expression.



Posted by Howard Wasserman on January 10, 2011 at 09:21 AM in Constitutional thoughts, Current Affairs, Howard Wasserman | Permalink


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Two points. First, you're missing a "c" in "Chick." Second, I think your larger point is right, but would argue that because elections are so important we have less of a justification to regulate speech in that context. I found it interesting to read the late-age reminiscences of the people who pushed through and managed the Fairness Doctrine. The one I read regretted what they'd done and admitted that despite the lofty rhetoric of "fairness" and letting all voices speak, the goal was to use the government to shut down political opponents. How could it be otherwise, really? The McCain-Feingold Act was written by incumbent legislators and it sought to use government power to limit political speech right before an election.

I don't share the politics of the founders of Chick-fil-A, but why shouldn't they continue speak out as they see fit, in elections as well as in smaller matters?

Posted by: love Chick-fil-A | Jan 10, 2011 10:27:22 AM

Thank you for pointing out the campaign focus of Citizens United, as opposed to the "corporations aren't people" mantra that became popular. I kept hearing otherwise-intelligent people repeating that, and I asked them all the same thing: If you are serious about a per se rule against corporate First Amendment rights, how would you object to federal censorship of books, TV, and movies? If Doubleday, CBS, and Miramax have no rights at all, make them submit their scripts to the government. The natural people behind the books can be free to self-publish without going through any corporate entity.

Silly, stupid, etc. But I was amazed how many bright people refused to answer, sputtered about Citizens United again, and walked away. Sad.

Posted by: joe reader | Jan 10, 2011 4:26:06 PM

Howard, I am not understanding the link between your example and your thesis. Your thesis may be correct, or not, and that is not my point. No one is arguing that Chick-fil-A is drowning out other voices because, as a single corporation spending what appears to be a fairly limited sum of money, it is not drowning out other voices. The fear in Citizen's United is not that one corporation would be able to produce one ad against Hillary Clinton, per se. It is that the decision establishes a much more general principle that applies to all corporations. There is an enormous difference in scale.

Posted by: TJ | Jan 11, 2011 2:33:50 AM

But presumably lots of corporations are doing what Chick-fil-A is doing (either as to this issue or as to lots of different issues) and no one objects on the various anti-corporate-speech grounds. And no one objects to Chick-fil-A by saying this will open the door to other corporations doing the same. Corporate speech is accepted in this context, on par with speech by individuals.

Posted by: Howard Wasserman | Jan 11, 2011 7:11:12 AM

This is a great post. My own favorite example of this phenomenon is Flynt v. Falwell --- almost everyone has a strong instinct that Hustler ought to win, but people rarely confront the tension between that outcome, and the sort of glib "corporations don't have rights" theory of the constitution.

(Note that Hustler Magazine, Inc., was a named defendant in the suit.)

Posted by: matth | Jan 11, 2011 11:27:18 AM

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