New York City Council Speaker Christine Quinn recently sought to kick Chick-fil-A out of New York because its CEO said he opposed gay marriage. On July 28, she sent the head of New York University, which leases space to the one Chick-fil-A restaurant in New York City, stating, “Chick-fil-A is not welcome in New York City as long as the company’s president welcomes continues to uphold and promote his discriminatory views…I urge you to sever your relationship with the Chick-fil-A establishment that exists on your campus.”

The university no doubt regarded this letter more as an unstated threat than as a mere statement of opinion, both because Quinn began her letter with the words, “I write as the Speaker of the NYC Council,” and because universities are pervasively subject to ad hoc government regulation, making it imperative to cultivate municipal officials’ goodwill. (For example, a university that annoys municipal officials can end up with an enrollment cap, or lose lucrative eminent domain prerogatives.

Although Quinn later backtracked after being criticized for violating the First Amendment, and claimed she was simply “voicing her own opinion” as a citizen, NYU got the intended message to get rid of Chick-fil-A. “John Beckman, a spokesman for NYU, tells in a written statement that given the recent news, the matter will be revisited by school officials. ‘The University Administration will ask the University Senate to take up the issue of Chick-fil-A’s status on campus again when it reconvenes this fall to make a recommendation on how to proceed,’ he said.” In 2011, the university’s Student Senators Council had “considered a resolution to remove Chick-fil-A from campus” over its CEO’s socially conservative positions. But it “ultimately ruled that, ‘to ban any entity from campus for ideological reasons is, in most every case, to limit freedom of expression,’” and thus “did not seek a resolution from the full University Senate.” Free expression may be valued by students, but it’s probably not as important to college administrators at NYU, who likely place a higher priority on maintaining good relations with City officials.

When government officials pressure a private institution to terminate a contract with another private entity due to that entity’s speech, that violates the First Amendment. For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003). That court also revived a First Amendment lawsuit by a businessman over a village official’s letter to the local Chamber of Commerce criticizing it for publishing the businessman’s ad critical of village policies in the Chamber’s publication. See Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991).

Government retaliation for speech does not need to include explicit threats or financial penalties to violate the First Amendment. For example, if the Government merely reprimands a public employee for his speech, or censures a private citizen for his speech, some courts find that to be a violation of the First Amendment. See Columbus Education Association v. Columbus Board of Education, 623 F.2d 1155 (6th Cir. 1980) (reprimand); Little v. N. Miami, 805 F.2d 962 (11th Cir. 1986) (censure resolution by city council). Similarly, a prolonged investigation over speech can violate the First Amendment, even if it is later dropped without any fines or penalties, since such an investigation can potentially chill speech. See White v. Lee, 227 F.3d 1214 (9th Cir. 2000).

Quinn’s pressure on NYU followed in the wake of similar attacks on Chick-fil-A by other politicians in Boston and Chicago. As I noted in The Washington Examiner, Boston’s

mayor said he would block Chick-fil-A from opening a restaurant there because its CEO opposes gay marriage. [He has since retreated from this position]

Similarly, an alderman in Chicago has said he will block a zoning permit needed for a Chick-fil-A restaurant in Chicago because of its CEO’s views.

Under the Supreme Court’s Umbehr decision, cities cannot punish firms or withhold even discretionary benefits like zoning permits over their speech. The Supreme Court long ago ruled that firms have free speech rights in its rulings in favor of Consolidated Edison and the First National Bank.

Chick-fil-A has faced unusually few discrimination claims of any kind for a restaurant chain. There is no evidence that Chick-fil-A discriminates against gay patrons, and it has restaurants in many cities than ban anti-gay discrimination.

Moreover, Chick-fil-A’s case against Chicago is even stronger than the company whose free-speech rights were recognized in the Supreme Court’s Umbehr decision, which involved retaliation against a business for its speech through denial of government contracts. The First Amendment applies with even greater force when the speech restriction is imposed through regulatory decisions, like a zoning decision, rather than tied to a government contract. See, e.g., CarePartners, LLC v. Lashway, 545 F.3d 867, 872 (9th Cir. 2008). Withholding regulatory approval is even less permissible, since it doesn’t involve the government’s power of the purse.

Nor is there any illegal-discrimination or customer-protection rationale for trying to banish Chick-fil-A, even assuming a city official could just ban a supposedly discriminatory restaurant chain without any due process.

Chick-fil-A has had far fewer discrimination lawsuits filed against it than most restaurant chains of its size, and I cannot find any reported case of it being sued for discrimination against gay customers, even though it operates in many cities that have ordinances banning sexual-orientation discrimination in employment and public accommodations.

Moreover, what the Chick-fil-A CEO said was not linked to illegal discrimination against customers or employees, much less linked as closely as the amicus briefs filed by various big corporations in support of the University of Michigan in the Gratz v. Bollinger case, where, to curry favor with liberal Congressmen and politicians, they filed amicus briefs defending a race-based college admissions policy struck down 6-to-3 by the Supreme Court (which held that the policy’s racial discrimination violated both the Constitution, and 42 U.S.C. 1981 – a race-discrimination statute that also applies to corporate America.) Yet no one has ever attempted to ban any of those companies from a city. (Companies make a big deal out of supporting affirmative action as a way of currying favor with liberal lawmakers. It is an indirect form of lobbying).

Companies that lobby heavily have outperformed “the S&P 500 by 11 percent a year over the past decade, according to The Economist.” Sadly, in a world of crony capitalism and big government, a giant corporation’s profits may now depend as much on currying favor with government officials as on making the best product for customers.

Business owners are also often subject to municipal predation that can potentially drive them out of business, forcing them to ingratiate themselves with city officials. This gives operators of restaurants, such as Chick-fil-A franchises, a powerful incentive not to express political views at odds with the local political elite and government officials like New York’s Speaker Quinn.