By David da Silva Cornell
Aside from the obvious response that any First Amendment violation would require governmental, not private, actions to suppress speech — thereby highlighting the flawed understanding by Palin et al. as to what First Amendment jurisprudence actually provides — I think the very framing/phrasing of “limiting speech” (which is how even some supporters of the LGBT cause have spoken of the issue) is inaccurate and misses the mark.
Of course, the entire speech question is aside from the most important issue in the Chick-fil-A controversy, which is the millions and millions of dollars that Chick-fil-A’s “charitable” arm has poured into the anti-LGBT industry, even to groups that have been determined by the Southern Poverty Law Center to be hate groups.
But that’s not how I mean that the “limiting speech” frame misses the mark. Although the donations to the anti-LGBT industry are the biggest problem we should seek to protest, there is indeed a speech issue here as well, involving speech by Dan Cathy, the president and COO of Chick-fil-A, opposing marriage equality in terms that in effect demonize LGBTs, asserting that our push for legal equality is leading America to “shake our fist” at God and that this is “inviting God’s judgment on our nation.”
However, this simply isn’t about “limiting speech,” certainly not in the sense of imposing any legal restrictions or penalties. We’re not talking about law or other governmental action, we’re talking about the power of the good old American free market and the power of good old American social shaming. (What any mayor may choose to do in treading on constitutionally shaky ice with respect to denying permits etc. to legal businesses is a wholly distinct question, and one that concerns me as much as it does many folks to right of me. Nor have I seen LGBT civil rights organizations rise in favor of such mayoral actions to block or harass businesses in that way — although mayors’ exercise of the bully pulpit afforded by their office is of course an entirely different, and legally supportable, action.)
The issue of statements such as Cathy’s is about limiting speech in the (itself limited) sense of imposing or at least encouraging economic and social/cultural penalties for certain statements, yes — but that’s perhaps more appropriately described as the “making taboo” of certain statements, the stigmatization of such statements .
And such a making taboo — the end result of which is that people may not yet have evolved to change their minds, and in fact never may, but they now understand that their bigotry is not something that can any longer be given voice to in polite society or be given legal implementation in the body politic, and that in turn can help yield a next generation in which the legacy of such bigotry is diminished and ultimately disappears — is a good thing, and is a process that our country has already witnessed repeatedly, such as with respect to racism, sexism, antisemitism, et al. (Not that those bigotries have disappeared yet, of course, but their stigmatization is now well-rooted, and the process of their diminishment is ongoing.)
So do we want to make socially and politically taboo all speech that is actually anti-LGBT bigotry?
Well hell yeah we do . . . Don’t we?
Stigmatization doesn’t tamper with anybody’s free speech rights; racists, sexists, antisemites, etc. all still can and often do give voice to their views in this country. Yet the larger societal consensus doesn’t have to refrain from classifying such speech as what it is: bigotry.
And to have such a societal shift in consciousness, where we are indeed on the way to the general stigmatization of anti-LGBT speech, is a healthy thing for society in general, and (obviously) for us LGBTs in particular.
Does any of us, among LGBTs and our straight allies, really have a problem with the ongoing societal process of the making taboo of anti-LGBT speech?
Yes, I consider speech that opposes the civil rights of LGBTs (e.g., opposition to marriage equality, whether on religious or other grounds; remember, denials of the civil rights of people of color and of women have both historically been argued for on religious grounds) to be protected political speech (and, often, protected exercise of religion) under the First Amendment. (Not that my considering it as such is of much effect, but our constitutional jurisprudence is pretty clear that that’s what it is.) No governmental action should impede such speech.
But such speech also needs to become socially and politically taboo, and the sooner the better. Indeed, it has picked up steam lately on its way to becoming taboo, as demonstrated by and reinforced by actions like the backlash against CFA and the resulting 40% drop in CFA’s reputation score, notwithstanding a single day of lines by CFA supporters buying extra chicken sandwiches. (The “Chick-fil-A Appreciation Day” was a cheap and easy way for the opponents of LGBT civil rights to make a statement, but whether they can maintain over time the elevated demand necessary to counteract the effect on CFA of the long-term loss of sales that the 40% drop in reputation score presages is a different matter.)
In such a social evolution, anti-LGBT speech would simply be traveling down the same path toward the dustbin of history as is already being traveled by analogous speech opposing the civil rights of people of color, or women, or interracial couples, etc.
David da Silva Cornell is a Miami-based attorney who practices corporate, international, and nonprofit law. Over the past decade he has been involved with a number of LGBT and faith-related organizations and causes, including current service on the board of Gay American Heroes Foundation and previous service on the boards of the National Gay and Lesbian Task Force Foundation, Equality Florida Action PAC, and the Gay and Lesbian Victory Fund. David received his B.A. and two Master of Arts degrees from Yale University and holds a joint J.D./M.S.F.S. degree from Georgetown University Law Center and School of Foreign Service.