Chick-fil-A on campus is not a free speech issue
The issue of whether we should keep Chick-fil-A on campus is multi-faceted, but it isn’t complex. Some folks in our community seem to think it’s a question of “free speech.” It isn’t.
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First, and very simply, it isn’t a question of free speech legally. The First Amendment to the U.S. Constitution, protecting a freedom of speech, does not apply to private actors. Wake Forest is a private university. Consequently, the freedom of speech enjoyed by our students is due to our commitment to an ethic of free expression, academic freedom and collaborative education.
It is not a legal mandate. Likewise, a legally-relevant question of freedom of speech for Chick-fil-A would arise only if the government prohibited Chick-fil-A from engaging in anti-gay speech or punished it for doing so.
Merely asking it as a commercial enterprise to comply with a generally applicable, neutral nondiscrimination policy, as Chicago and other jurisdictions have, does not prohibit its CEO from saying whatever he wants.
A more difficult question, at least on the surface, is whether ejecting Chick-fil-A from our campus collides with some abstract commitment to free speech.
Again, the answer is no. If we take a principled stand and refuse to support Chick-fil-A’s anti-gay efforts in this country and elsewhere, Chick-fil-A is not, in any way, forbidden to speak. The real question is whether Wake Forest, ostensibly committed to nondiscrimination on account of sexual orientation, should subsidize Chick-fil-A’s anti-gay speech.
Chick-fil-A sends millions of dollars in contributions to anti-gay organizations in this country and abroad.
Most disturbing to me is the organization’s support of Uganda’s “Kill the Gays” bill, a piece of legislation purportedly aligned with Christian values that imposes the death penalty for anyone who is homosexual or living with HIV.
Now, if Wake Forest elects to eject Chick-fil-A from campus, as many other universities have, because this kind of ugliness conflicts directly with Wake Forest’s commitment to nondiscrimination, and to its professed commitment to the well-being of minority students of whatever stripe, this does not prevent Chick-fil-A from speaking.
And, importantly, no person’s ability to survive as a heterosexual or Christian or a traditionalist of whatever persuasion is imperiled.
The action would merely reflect that Wake Forest’s gay students, staff and faculty actually matter in practice as much as in theory.
It would merely be a refusal to subsidize, directly or indirectly in any amount, violence against and murder of gay people. Many questions, more difficult for some than others, arise from this controversy. The gay members of our community might ask, fairly in my opinion: do we matter or not?
If it were revealed that Chick-fil-A spent any sum of money to finance the Ku Klux Klan or a neo-Nazi group, would we still be “discussing” it?
Is our equality and basic dignity worth more around here than any particular brand of processed chicken?
Whatever the relevant questions are, the question of Chick-fil-A’s right to freedom of speech is not one of them.
Shannon Gilreath is an associate professor of law and the author, most recently, of The End of Straight Supremacy: Realizing Gay Liberation (2011).