Who’s the Greater Threat to Freedom? Chicago or Chick-fil-A?

3 Aug

Whatever you think of Chicago’s and Boston’s attempts to prevent Chick-fil-A from setting up shop in those cities because of its president’s anti-gay views—there’s been a great discussion about this issue among progressive, led by Glenn Greenwald, who’s got the better of the argument, it seems to me—one thing is clear.

No matter how much of a threat to Chick-fil-A president Dan Cathy’s freedom of speech Chicago and Boston’s actions pose—and for the record, I don’t think it’s much (there’s little evidence to suggest Cathy’s fortunes would be so altered by these two individual actions as to compel him to change his positions; that’s not to say, however, that these actions don’t set bad precedents, which is why they must be opposed)—it’s miniscule in comparison to Chick-fil-A’s infringements upon the freedoms of its employees.

As Josh Eidelson makes clear in this must-read from Salon:

It’s now common knowledge that Chick-fil-A wears its brand of Christian conservatism on its sleeve. In a 2007 article, Forbes’ Emily Schmall described how that ethos infused the company’s employment policies. It meant extensive vetting of franchise operators, including interviewing their children and asking about their involvement in “community, civic, social, church and/or professional organizations.”  “If a man can’t manage his own life, he can’t manage a business,” Chick-fil-A founder and chairman S. Truett Cathy told Schmall.

But operators weren’t the only ones being judged on their private lives: Schmall wrote that Cathy “says he would probably fire an employee or terminate an operator who ‘has been sinful or done something harmful to their family members.’”

In 2002, Houston restaurant manager Aziz Latif allegedly was fired the day after he declined to take part in a prayer to Jesus during a training program. He sued Chick-fil-A for discrimination and reached a settlement whose terms have not been made public. Last year, Aziz’s attorney, Ajay Choudhary, told The Collegian that his client had been fired “for not conforming.” “Prayer,” he added, “should be, if anything, a private purpose, not a corporate purpose.” (Choudhary did not respond to a request for comment.)

Praying to Jesus isn’t the only activity Chick-fil-A employees claim has been illegally imposed on them. Brenda Honeycutt, who was hired by a Georgia Chick-fil-A in 1991 and promoted to general manager in 1997, charges that last year her franchise owner/operator began excluding her from management meetings and then fired her so that she would be home with her kids. In May, Honeycutt filed a Civil Rights Act lawsuit against the owner/operator and Chick-fil-A, Inc. The suit alleges that the owner told Honeycutt and three other witnesses “that he terminated the Plaintiff so she could be a stay at home mother.” In the period prior to firing her, it states that he “routinely made comments” to her “suggesting that as a mother she should stay home with her children.” It says she was replaced by a man.

In California, workers charge they were retaliated against for exposing abuse. In a pair of lawsuits, six current and former workers allege a multi-year pattern of sexual harassment by their supervisor. Their attorney, Fernando Tafoya, told Salon that the supervisor has been “using his authority as a manager to abuse the women in the workplace,” including “forcibly kiss[ing] the women, the manager putting his hands down the bra of some women as they’re getting ice from the ice machine, grabbing their genitalia, slapping them on the ass, constantly rubbing up against them when he passes by them.”

“I want this to come to an end,” one of the women, Norma Duarte, told a San Diego CBS station, “and I don’t want him continuing to harass other women in the future like myself.”

Tafoya said that when workers brought complaints to the franchise owner, she “basically just ratified the conduct,” telling them the supervisor “was just playing around, or not taking it seriously.” Tafoya also said that appeals to Chick-fil-A’s corporate office “basically fell on deaf ears.” Now that the lawsuits have been filed, Tafoya said that the national company, through its attorneys, has claimed “that the women are lying, and they’re in a conspiracy to gain money from the employer.” The women range in age from 18 to 40; some speak English, some Spanish.

According to Tafoya, the supervisor called immigration authorities and tried to have two of the six workers deported in retaliation for speaking up: “These are women who have worked loyally for Chick-fil-A, for some [up] to six years, and it wasn’t until they complained about the sexual harassment that suddenly there was an immigration issue.”

Tafoya said he was “shocked” that, when employees raised the issue internally, “the initial response of the corporation wasn’t to order their local franchise to resolve this problem immediately.” In contrast, he said, “The Chick-fil-A national headquarters keep a very strong arm in terms of making sure that Chick-fil-A operates in a certain manner and is putting out a certain message.” The case is currently in discovery, which Tafoya said will determine whether the national corporation becomes a named defendant.

Let me be clear: I very much agree with Greenwald and other liberals that governments cannot punish corporations because of the views of their CEOs. That seems obvious and straightforward.

But let’s be equally clear about two other things:

First, while many of us on the left were made quickly aware of Boston’s and Chicago’s actions against Chick-fil-A and spoke out against them, how many of us had ever heard of these actions against Chick-fil-A’s employees and said anything about them? That’s not an accusation: I myself had never heard of them, and I try to keep up with these things. It’s just a commentary on the state of our discourse where government infringements upon our rights rightfully get attention while the private sector’s don’t.  Once upon a time, that wasn’t the case on the left.

Second, while we are right to protest Boston’s and Chicago’s actions, we need to be mindful of the power differentials. People with lots of money and power can withstand infringements upon their livelihoods; people with not so much money or power can’t. Again, this doesn’t mean we shouldn’t protest Boston or Chicago (and the precedents those actions might set). But it does mean that we need to restore some sense of sociological realism to our analysis of rights and power.

If we think that a wealthy CEO’s freedom of speech can be restricted by putting constraints upon his livelihood—and that, we should remember, is what Chicago and Boston were threatening to do (as opposed to more traditional modes of censorship)—how much more so is that the case when the victim in question is a low-wage employee?

The fact that the offender in the one case is the city of Chicago while in the other it’s a corporation is neither here nor there. As libertarians never stop reminding us, employees who don’t like their employers can take their labor elsewhere.  Well, so can Chick-fil-A.

34 Responses to “Who’s the Greater Threat to Freedom? Chicago or Chick-fil-A?”

  1. Connie Keyes August 3, 2012 at 10:14 pm #

    “People with lots of money and power can withstand infringements upon their livelihoods; people with not so much money or power can’t”.

    That is my objection to Chick-fil-A after reading about the suit brought against the man printing tee shirts from his garage that said “Eat More Kale”. Chick-fil-A contends that is an infringement of their copyright. To me the bigger offense than his religious beliefs is the corporate bullying of a single individual trying to make a living and in all likelihood by doing so would never impact the corporations profits or operations.

  2. Rob Warmowski August 3, 2012 at 10:56 pm #

    I’m in Chicago and I’m left shaking my head at the various insane premises that just about every liberal seems willing to accept:

    1) That a community has no right to stop a business from opening. This isn’t 1830; commercial land use is a privilege granted by the community — not a right by a long shot.

    2) That the legality of a proposed business is the only standard that should apply, everywhere, ever.

    3) That Chicago banned Chick-Fil-A (it didn’t, there are restaurants in Chicago already).

    4) That the free speech protections the CEO absolutely and rightly enjoys magically extend to protection of how he conducts business — as if the First Amendment somehow grants a commercial entity carte blanche to use land, consume city services, fund hate groups and discriminate against employees with impunity.

    5) That objecting constituents living in a ward where a business wants to set up shop are rightly denied their electoral representation as long as it so happens the company’s CEO is a religious fundamentalist.

    From where comes this civic literacy vortex? Is it sourced in fair-mindedness? Or is it a pernicious national inclination away from community prerogatives and toward lickspittle deference to business?

    • David Kaib August 3, 2012 at 11:18 pm #

      It’s funny how “the various insane premises that just about every liberal seems willing to accept” are things that are completely foreign to me as I’ve been following this.

      • Rob Warmowski August 3, 2012 at 11:33 pm #

        These are the explicit and implicit positions that I repeatedly encounter from people who, as I do, support GLBT equality but will not support the rights of the people of Chicago’s 1st Ward to tell Chick-Fil-A to take a hike due to its practices.

    • Corey Robin August 3, 2012 at 11:30 pm #

      Rob: On #1, I don’t think that’s the issue. The question is on what basis can a government legitimately deny a business from opening. Surely, you wouldn’t think it legitimate if the government prevented a business from opening because it espoused pro-gay views, right? But regardless, the point is not that commercial land use is a fundamental right but that governments have to provide legitimate reasons for their actions. In this case, many liberals don’t think Chicago has one. On #4, I don’t think the issue for many liberals is how Cathy conducts his business. If Chicago had decided to subject his permitting request to greater scrutiny b/c of his firm’s record of bad employment practices, I don’t think you’d see the same outcry. But denying it on the basis of his speech is something else.

      • Rob Warmowski August 4, 2012 at 12:01 am #

        Corey, if a proposed business’s established practices were to prefer to hire gay people, to deny employment on the basis of sexual preference and to impose tests on its employees to make sure that the employees were sufficiently gay, all while funding groups who work to deprogram sexual preference — a set of conditions that form the only comparison that matches what CFA does — I would head over to the Alderman’s office and let her know that these practices are not welcome where I live.

        The fact that many liberals don’t think Alderman Moreno had good reason to deny the permit has far more to do with the polarizing nature of the widely publicized speech of the CEO and less to do with the hidden, boring civics taking place in the ward office. I grant that it would have been less impolitic to interrupt the permit rather than deny it, but I see no chance there have been less outcry from the monumentally, perpetually aggrieved religious right.

        The situation suggests we have widely bought into the hard right premise that liberty is useful only to business. When it is exercised by the electorate through its representative – even at the most local levels – it immediately becomes oppression

  3. David Kaib August 3, 2012 at 11:12 pm #

    Auerbach’s book is great. Reconnecting with that history might help us see the threats to free speech in the workplace.

    On a sem-related note, I’ve been thinking for a while that it’s unfortunate how the role of labor in the development of free speech law is left out of the standard stories. We skip from Holmes’ opinion around WWI to Jehovah’s Witnesses in the 40s to the Civil Rights Movement. I suppose the (sanitized version of) the Civil Rights Movement feels less threatening.

    • Corey Robin August 3, 2012 at 11:16 pm #

      David Rabban’s Free Speech in Its Forgotten Years is very good on precisely that issue.

  4. Benedict@Large August 3, 2012 at 11:19 pm #

    “If we think that a wealthy CEO’s freedom of speech can be restricted by putting constraints upon his livelihood—and that, we should remember, is what Chicago and Boston were threatening to do …”

    Horsecrap! Neither Chicago nor Boston are trying to restrict in any way Dan Cathy’s freedom of speech. He is free to enter either of those cities at any time and spead his hate speech among any that will listen. He’s only being told where not to peddle his chicken; not where to not peddle his ideas.

    • GTChristie August 5, 2012 at 1:12 am #

      “Where not to peddle his chicken” is “putting constraints on his livelihood,” that’s what the sentence actually refers to — so in a sense you’re right. Literally speaking, only his business is being controlled. The beginning of the sentence is a big if we think that’s also constraint of speech …

      To deny a business permit based on disapproval of an owner’s opinions is not direct censorship of speech, as Corey points out — and so do you. But it does link negative government consequences to constitutionally protected speech acts.

      I think both liberals and conservatives agree such a link is unconstitutional (anything else would be an undesirable precedent, as Corey calls it). Most Americans think government should not have the power to punish anyone, in any way, for an opinion.

      (Note that Mr. Cathy’s business is prohibited by law from discriminating against employees in several ways, regardless of his opinions. As far as I know, he cannot discriminate in hiring or treatment of employees based on sexual orientation. At the same time, as I read it, what he vocally opposes is gay marriage.)

  5. Jeremy Nathan Marks August 3, 2012 at 11:20 pm #

    I am not satisfied with the idea that it is wrong and always wrong for “governments to punish corporations for their views.” When we talk about government in this way we are turning it into something abstract and removed from the people and communities it is supposed to represent. When we talk about it this way we are envisioning government as a bunch of suits acting tendentiously to punish individuals or businesses “it” does not like. It is a sign of how alientated many people are from the government that government itself is seen as faceless, a black box, monolithic or sinister but a large corporation like Chick Fil A is somehow embodied in Dan Cathy. We make business about the rights of individuals and government out to be an oppressor. I am not defending the government, I only seek to accentuate your point that their is a real imbalance here. T

    I find this debate very disatisfying (not your contribution) because it seems that everything is about commerce. We have a prejudice in favor of business in the United States that leads us to defend the business practices of companies who have odious policies, Chick Fil A being one of so very many. We extol predatory behavior among business people as part of the business culture. Is it unrealistic to say that almost inevitably this leads to an absurd sympathy for the rich and irresponsible? After all, was Cathy’s behavior responsible behavior? Has anyone benefitted from his remarks? Boston and Chicago responded to his hateful words they did not make him act this way. Should we really be afraid of a discussion about excluding from our communities bigots who use their profits to fund their bigotry?

    Of course communities can also discriminate against businesses with ethics that I personally approve of (that is the risk). But I am not satisfied with a moral position that says this subject is largely off limits because we don’t want to get muddied by examining particular claims and that we should make a general rule which states that a business man (or woman) can feel free to say whatever they like without any consequence to their company because it is absolutely beyond the pale for communities to penalize them for their conduct. I also am aware that this is a difficult issue because Cathy’s company employs a great many people who will, in turn, pay a penalty for his conduct. But the reality is that his employees are already paying a penalty by working for him as reporters are uncovering.

    • jonnybutter August 4, 2012 at 8:23 pm #

      I find this debate very disatisfying (not your contribution) because it seems that everything is about commerce. We have a prejudice in favor of business in the United States that leads us to defend the business practices of companies who have odious policies…

      I find it dissatisfying too, but that doesn’t make the 1st amendement argument wrong. That the US has turned into a gigantic chamber of commerce is a different issue. Cathy is not breaking, nor threatening to break, the law. I think Corey’s point is that what is legal and customary is the problem. But he and Greenwald are right on this one. You can’t deny Cathy a right to sell his fried dreck just because he’s an asshole or a christian or whatever.

      btw, I know some people who work at a CFL. They treat employees like my friends – minimum wage workers – like shit, all the while ladling on the sanctimony. THAT’S the problem.

      • Jeremy Nathan Marks August 4, 2012 at 9:05 pm #

        I am not saying the 1st amendment argument is wrong, I am interested in questioning the absoluteness of the 1st amendment argument.

        There are many issues at work here, I agree. But I think the notion of community is an important one and needs to be investigated further. Cathy and his company benefit from the privilege of being part of many communities: they draw from the local employment pool; they enjoy city services; they enjoy tax breaks; police and fire protection are granted them. My problem with the 1st amendment argument is that this element, this communitarian component, is left out.

      • jonnybutter August 4, 2012 at 9:38 pm #

        My problem with the 1st amendment argument is that this element, this communitarian component, is left out.

        It’s left out because it’s a different issue. How can you reliably legislate/regulate about political opinion? The problem is the laws – and resultant ethos – that we already have. Not letting this guy do business in this ward of Chicago or somewhere else changes absolutely nothing. The problem is that the very idea of community is suspect in the US. Again, denying this guy the ability to sell fast food in a couple locations doesn’t do anything about that. It’s just more symbolic ghetto-left crap, which actually distracts from the real problem.

    • GTChristie August 5, 2012 at 1:22 am #

      Should we really be afraid of a discussion about excluding from our communities bigots who use their profits to fund their bigotry?

      I don’t think there’s much to discuss on that point, really. It’s not the government’s job to arbitrate who gets a permit to operate based on an owner’s public opinions. People who don’t like Mr. Cathy’s opinions don’t have to eat his food. It’s people power: if enough people disagree with the business owner enough to totall avoid his excellent, high-quality, reasonably priced, wholesome and delicious product with a pickle … his business will fail. You don’t need government to tell you how to vote with your feet.

      • Jeremy Nathan Marks August 5, 2012 at 9:30 am #

        I don’t agree with you. There is a great deal to discuss here. What I will emphasize is that your position suggests that government is the problem. Chicago and Boston or any community can act on behalf of their citizens and this is an example of government acting on behalf of public opinion if enough people in that community feel strongly enough. If a community doesn’t want Cathy to set up shop in their town because they are deeply offended by his hateful message then why deny citizens the exercise of their ability to collectively force out Cathy’s company? If Chick Fil A wants to challenge the constitutionality of that action let them do that and hire lawyers to formulate a first amendment response.

        What is government actually for if we are saying that a community cannot use it to keep out businesses that it doesn’t like? Cathy benefits from government services all of the time. Corporate tax breaks; the ability to donate extensively to political campaigns without disclosure; the ability to meet and speak with political officials because he is wealthy and powerful. None of those privileges are being threatened. To act as though Cathy should be protected from big, bad government is, to me, missing the point entirely. I know the point here is that this is not about Cathy specifically, we are talking about anyone being able to set up a business regardless of their views. But this too overlooks the fact that Cathy did not have to make the public statements that he made. No one forced him to do that, he enjoyed press attention because of his wealth and influence. In other words, he brought this upon himself because he made inflammatory remarks. No one is threatening him with jail time because of what he said, some of us are simply saying “If you want to speak out on this issues you certainly may, but take your business elsewhere.”

      • jonnybutter August 5, 2012 at 7:07 pm #

        If a community doesn’t want Cathy to set up shop in their town because they are deeply offended by his hateful message then why deny citizens the exercise of their ability to collectively force out Cathy’s company?
        [sorry, I can't seem to comment below your thread JNM]

        I think there’s a fine line here. It’s one thing to refuse to let a Walmart come into a town because you know it will ruin the locally owned retail economy. It’s another to bar this particular asshole because of something not directly relevant to business itself; in fact, the Christianity he wears on his sleeve is belied by how he treats his employees (like shit). Not all evangelical Christian businesses do that – i.e. take their own religious teachings so un-seriously as Cathy does. If one of the latter companies, which provides daycare for mothers, family leave, free schooling, etc. is also against gay marriage, are they being hateful, or are they just being true to what they believe? Cathy is not inciting anything, like the KKK. I’m not saying he *wouldn’t* if it were 30 years ago, but we’ll never know that.

        I am not apologizing for the ‘good’ company above, for any evangelical christians, or anybody else. I’m just saying that it’s not so obvious that it’s right bar a business because you don’t like what the owner thinks about an issue of the day. And how do you decide? Does the alderman decide? The county? Do you have a plebiscite about controversial businesses? Do you have one to decide which businesses are potentially controversial?

        Yes, he could have kept his mouth shut, but why should he have to? Do you really want that? Incitement is hard to prove anyway, but I think it’s pretty clear that what this guy is doing isn’t it. He’s on the wrong side of history, and it gives him some little chubby to announce it. So what?

        I’m a first Amendment almost-absolutist because it is safe and practical.

  6. communistsneversleep August 4, 2012 at 12:40 am #

    I’ve long since tired of trying to follow the logic of rights to speech in this context, as it now often appears to me merely as so many library stacks of corporate jurisprudence listing various imagined infringements thereof, along with settlements in the form of freshly-minted constraints on flesh-and-blood humans actually speaking.  

    The only perspective of the powerless – particularly in this Fourth World gulag archipelago of fundamentalist-run chicken nugget vendors and CEOs with “threatened livelihoods” – must be this: In any capitalist society, what is called speech we will understand as money.

    The notion that anyone remotely serious about the condition of the working class would consider for one moment the “rights” of some poor capitalist as ever having been “infringed upon,” much less that some supposed infringement sets a dangerous precedent which must be opposed, is well beyond my comprehension. 

    As goes the bulk of Corey’s analysis regarding the manner in which this particular plantation institutionalizes the actual violation of human freedoms, in all its horrid (and all-too familiar) minutiae; this is indeed precisely the matter at hand.  

    • Jeremy Nathan Marks August 5, 2012 at 9:32 am #

      I agree with you. What really matters here is the institutionalization of the violation of human freedoms. You’re right, this is about vulnerable people who are being abused by the powerful.

  7. wisedup August 4, 2012 at 1:01 am #

    When you started to write The Reactionary Mind, did you deliberately cripple your argument by making obviously false assumptions?
    Why then are you engaged in this rather inane argument?
    It is inane because Glen Greenwald makes the rather astonishing assumption that since the supremes have declared corporations to be superior to people – all of the rights they want and none of the obligations – all we can do is haggle over the detritus. Well, he is a lawyer and lawyers are nothing without the law, right or wrong.
    This is not the discussion that should engage us.

  8. Chris August 4, 2012 at 7:05 am #

    “Let me be clear: I very much agree with Greenwald and other liberals that governments cannot punish corporations because of the views of their CEOs. That seems obvious and straightforward.”

    No, it really isn’t. Frankly, corporations shouldn’t even exist – they are the enemy and should all be nationalised.

    • GTChristie August 5, 2012 at 1:38 am #

      Oh, right. If you don’t like what Microsoft does to your computer, just wait until you see what the government does to it. LOL>

      • Bill August 6, 2012 at 5:06 pm #

        I would rather the government, who can ultimately be held accountable, to regulate my life than a corporation, who cannot.

  9. Roger Burgess August 4, 2012 at 11:15 am #

    You’re fighting against something that doesn’t exist Corey. Nobody’s trying to do what you’re arguing against.

    What the Chicago Alderman is doing is preventing Chick Fil-A from building until he gets clarification on their stances that they’re legally obligated to observe, up to and including protections for gay individuals – which is the law in Chicago.

    This is a perfectly reasonable thing for him to do and it is perfectly unreasonable for you to be characterizing this as somehow a bad thing. You’re wrong on this one bro. Totally.

    In your defense, that Sun Times article is shit. I’m quite positive Moreno had more to say than just “If he’s in the business of selling chicken in Chicago, he should be in the business of having equal rights for everyone.” In fact, he did exactly that over on Chris Mathews’ Hardball (Incidentally, Matthews is making the same untoward leap-to-conclusions that you’re making).

    Proof: http://www.msnbc.msn.com/id/3036697/#48453488 skip to 1:21.

    Moreno is perfectly within his rights to do what he’s doing and his actions are above reproach in this. If the CEO of a company makes comments to the effect that he would encourage stores of his to break the law in a county, then county representatives would be FAILING at their jobs if they did not place that CEO’s business under much tighter scrutiny than they would some other CEO’s business.

  10. Glenn August 4, 2012 at 11:19 am #

    Rather than have some government official use some authoritarian extension of power by refusing to let an undesirable corporation come into his city, maybe a corporation head that expresses support for positions likely to come into conflict with the legal rights of individuals could be promised a thorough investigation upon his relocation to that city.

    A corporate head that donates to the KKK could be promised investigation of race related violations of law, for example.

    Whatever your feelings about Al Capone, he was removed from his business operations for Federal tax violations, not for the nature of his business operations.

    It’s better that a government regulate through ad rem than ad hominem attacks.

    • Gavin August 6, 2012 at 5:56 pm #

      When in Rome, do as the Romans do and when in Chicago then obey the city laws and ordnances of Chicago. Is this a case of a democratically-elected city government attempting to operate a kind of Jim Crow ordnance by only allowing businessmen with views they like to operate within city limits; or is it rather a case of a corporate CEO demanding the right to set up an extraterritorial enclave within the city in which he does not have to obey city laws and can act as a feudal lord over his employees, demanding that they adhere to his political views?

  11. Simon August 4, 2012 at 1:35 pm #

    Freedom for who and for what?

    Thats what the right doesn’t get.

  12. Bart August 4, 2012 at 6:05 pm #

    What about the case of a town that decides against the opening of the first Walmart store in the area; a business they know will force several family businesses to close?

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