Commentary

Chick-fil-A Banished from Buffalo Airport – Another First Amendment Violation

Hans Bader
By Hans Bader | April 1, 2019 | 12:19 PM EDT

(Photo by Alex Wong/Getty Images)

Chick-fil-A is being kept out of the Buffalo airport because of its “history of supporting and funding” organizations that a key state legislator disapproves of. This violates the First Amendment, just as it violated the First Amendment when San Antonio barred Chick-fil-A from opening a franchise at its airport last month for similar reasons.

Hot Air’s Jazz Shaw calls this an “egregious assault on the free market based entirely on the municipal government’s supposed ability to punish a private sector business for its owner’s speech or religious beliefs.” As he notes, “the Buffalo Niagara International Airport has been planning the construction of a new restaurant area for travelers. On Thursday, the contractors working on the project made the mistake of publicly talking about their ‘excitement’ at having a Chick-fil-A franchise there.” In response New York Assemblyman Sean Ryan “immediately launched a public attack on the decision.”

And less than a day later, as Shaw writes, “a new announcement came out saying that the plans had changed and the flying public would not be able to pick up any of the delicious meals from Chick-fil-A after all.”

WNBF Radio reported the following:

“A New York State assemblyman says a Chick-fil-A restaurant that had been planned as part of an airport renovation project won’t be opening after all.

“The operators of Buffalo Niagara International Airport Thursday expressed excitement about a new restaurant area at the facility that would include a Chick-fil-A unit.

“Assemblyman Sean Ryan was not happy with the news. …

“Ryan wrote: ‘Chick-fil-A has a long history of supporting and funding anti-LGBTQ organizations.’ He urged airport operators to reverse the decision.”

“After making it clear that the state government was watching, Assemblyman Sean Ryan was quickly contacted by the responsible authorities. It seems they heard his complaints and told him that Chick-fil-A was being dropped from the plans. This sent him back to social media for a victory lap,” notes Shaw.

The Buffalo airport is overseen by the Niagara Frontier Transportation Authority. It is bound by the First Amendment, because its members are “almost all” picked by the governor. That’s true regardless of how the NFTA is labeled or incorporated under New York state law. The Supreme Court ruled in in Lebron v. National Railroad Passenger Corp. (1995) that even nominally private corporations like Amtrak are subject to the First Amendment, if their managers are picked by government officials.

Law professor Eugene Volokh earlier explained why it violates the First Amendment for government officials to ban Chick-fil-A from an airport because of the groups it donated to, such as the Salvation Army and the Fellowship of Christian Athletes. We earlier explained in greater detail why the San Antonio airport ban violated the First Amendment at this link.

As we noted earlier, the Supreme Court has ruled that government officials cannot deprive someone of even an optional benefit, like an airport concession, because of their speech on matters of public concern. (See Board of Commissioners v. Umbehr (1996)). Government officials are also not supposed to target businesses, or government employees, based on their exercise of their First Amendment right of free association. (See, e.g., Boddie v. City of Columbus (1993)).

Freedom of association includes the right to make contributions to groups or causes of your own choosing. (See, e.g., Randall v. Sorrell (2006); Pfizer v. Giles (1994)).

That is true regardless of the viewpoint those groups espouse, and even if a group violates the law, if it also has legal activities and goals, donations to it are protected. (Pfizer v. Giles (1994)).

Government officials are not supposed to pressure third parties to take action against someone for having exercised their First Amendment rights, even if they used those rights to express anti-gay views. (See Okwedi v. Molinari (2003); Rattner v. Netburn (1991)).

Chick-fil-A has a record of treating customers (and employees) well. There are restaurant chains that have lots of lawsuits filed against them for discrimination, harassment, or allegedly ripping off their employees. Chick-fil-A is not among them, and it does not discriminate against gay patrons.

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

Editor's Note: This piece was originally published by Liberty Unyielding and was reprinted with permission from the author.

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