Monday, August 06, 2012

Chick-fil-A CEO's First Amendment rights violated by New York official's threat


New York City Council Speaker Christine Quinn seeks to kick Chick-fil-A out of New York because its CEO said he opposed gay marriage. She sent the head of New York University, which leases space to the one Chick-fil-A restaurant in New York City, a letter stating, “Chick-fil-A is not welcome in New York City as long as the company’s president 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 will regard this letter more as an unstated threat than as a mere statement of the Speaker’s 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 regulations and ordinances, 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. Business owners are often subject to municipal predation that can potentially drive them out of business, forcing them to ingratiate themselves with city officials.)

Government pressure on a university to terminate a contract due to someone’s speech violates the First Amendment rights of that person and their company. For example, if a government official pressures a private institution to take action against someone (such as firing an employee) for his speech, that violates the First Amendment, see Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (pressure on defense contractor to fire employee for speech); Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985).

Government retaliation for speech does not necessarily need to include explicit threats or pressure 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); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (investigation by civil-rights officials over speech with a discriminatory viewpoint so clearly violated the First Amendment that the civil-rights officials were liable for damages under the First Amendment).

Quinn’s pressure comes in the wake of similar government assaults on Chick-fil-A by other politicians. 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.

Actually, Chick-fil-A’s case against Chicago is even stronger than the business 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 civil-rights 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 claims 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.


British PM risks  backlash from Liberals as he gives in to Tory rebels and kills off plans to reform House of Lords

A major coalition row erupted last night after it emerged that David Cameron will kill off plans to reform the House of Lords within days.

Senior Liberal Democrats warned there would be ‘serious consequences’ if the Tories fail to deliver on the ‘non-negotiable’ coalition policy – a cherished plan of Deputy Prime Minister Nick Clegg.

Mr Cameron is expected to next week announce that plans for an elected second chamber have been abandoned after failing to persuade Tory backbenchers to support them.

The Liberal Democrats are now expected to retaliate by blocking constituency boundary changes, which had been expected to give the Tories a significant electoral boost. One party grandee even said the flagship NHS reforms should be wrecked in retaliation.

But senior Tory backbenchers said last night that the coalition would be ‘finished’ if this happened.

Earlier this year, Mr Cameron and Mr Clegg outlined plans to reform the House of Lords by electing 80 per cent of peers and almost halving the total number of members to 450.

But more than 90 Conservatives rebelled against the government in a vote in July - the largest such act of defiance since the coalition was formed in 2010.

Mr Cameron told Tory MPs last month he would make ‘one more try’ to push Lords reform through in September when the Commons returned from its summer recess.  But he is understood to have concluded he was ‘flogging a dead horse’.

The Prime Minister wants to fill the gap in the Government’s legislative programme with plans to boost jobs and growth.

But the move is set to plunge the coalition into crisis with bitter recriminations flying between the parties.

Sources close to Mr Clegg warned that the Liberal Democrats could not be ‘bought off’ with concessions such as political party reform or more support for green energy.
The House of Lords Reform Bill 2012

The source said: ‘We have made our position clear the whole way along. A deal is a deal and there will be consequences if that deal is not delivered.’

Dr Evan Harris, a Vice of Chair of the Party’s powerful Federal Policy Committee, said that the Liberal Democrats should now withdraw support on a range of Tory policies.

He said: ‘If the Tories cannot deliver on a fundamental part of the coalition contract like Lord’s reform, then the fate of boundary changes is just a side show.

‘Liberal Democrats - in the event of the Conservatives failing to deliver basic coalition policies - should start looking again at things the Tories had in their manifesto and which - regardless of whether they are in the coalition programme - should now have support withdrawn.

‘There is no reason why secondary legislation necessary to implement aspects of Bills already passed - such as the Health Bill - should not now be blocked.’

Mr Clegg is understood to have been enraged that the Liberal Democrats have kept their side by backing deeply unpopular measures such as NHS reforms, tuition fees and welfare reforms.

It would be the latest humiliation for the Deputy Prime Minister who last year suffered defeat in the AV referendum - another of his keystone policies.

Senior Lib Dem figures have publicly warned they would block constituency boundary changes wanted by the Tories if Lords reform was abandoned.

While the issue is not directly linked to Lords reform in the Coalition agreement, senior Lib Dems have made clear that they see it as part of the same ‘contract’

Lib Dem Party President Tim Farron said in April: ‘The Conservatives need to remember that if they don’t keep their part of the bargain then, of course, boundary change should not happen.’

But Tory backbenchers counter that boundary reform was always linked to the AV referendum which was delivered last year.

The boundary review is being carried out as part of proposals to reduce the number of MPs from 650 to 600 but is expected to benefit the Conservatives.

Some experts believe the new-look map could give the party an additional 20 seats at the next general election and put several senior Lib Dems at risk.

Tory MP Stewart Jackson, who joined the rebellion over House of Lords reform, warned that the coalition would be ‘finished’ if the Liberal Democrats voted down boundary changes.

He said: ‘It would be unconscionable for David Cameron to give ground to the Liberal Democrats on boundary changes. Tory MPs voted on a three line whip for the AV referendum that could have put us out of power. We were prepared to do that on the that basis that we got boundary changes.

‘If the Liberal Democrats vote against this, it would be an egregious breach of faith. Boundary changes are non-negotiable.

‘The coalition is not over yet. But if the Liberal Democrats vote against boundary changes, the coalition will be finished and David Cameron’s own position will be much weakened.’

But David Hall-Matthews, chair of the Social Liberal Forum, said it was ‘inevitable’ that the Liberal Democrats would now try to kill off boundary changes.

He said: ‘They are part of the same package. You can’t have one without the other. This reflects very badly on David Cameron’s leadership and shows he cannot control his own party.’

Shadow justice secretary Sadiq Khan said: ‘Nick Clegg marched his MPs through the voting lobbies in support of the harsh and unfair policies of this Tory-led Government in anticipation of receiving Lords reform in return. But now Nick Clegg may end up with nothing, ruthlessly exposing his naivety.’

Electoral Reform Society chief executive Katie Ghose said: ‘This reform is vital for Britain to hold its head up as a modern democracy but it is being sabotaged by MPs who think it will work against their own interests.’

A Downing Street spokesman said: ‘Discussions on Lords reform are ongoing and we will make an announcement when they are completed.’


Almost half of those held in Britain's 2011 riots have been re-arrested for crimes including rape, threats to kill and robbery

Which shows how little of a deterrent Britain's prisons are
Days before the anniversary of the disorder, official figures show that 44 per cent of riot suspects have been arrested on suspicion of committing fresh offences within the last 12 months.

The statistics, released under the Freedom of Information Act, have raised serious questions over the penalties handed out to offenders.

More than half of those locked up over the riots are already free and thousands more have evaded justice. Police in Nottingham made 143 arrests following the disorder in August last year. Of these, 86 were charged.

But in the last 12 months, 72 suspects – half of those arrested – have been held again for crimes including rape, arson, robbery, threats to kill and breaching bail or parole conditions.
The force said some of these offenders had been arrested for multiple crimes since their release.

They are accused of carrying out 20 thefts and robberies, two rapes, nine assaults, 16 drugs offences and 14 of them have skipped bail, gone on the run or failed to comply with community orders, said Avon and Somerset Police.

It appears almost half of the rioters got a taste for breaking the law and have gone on to further break the law

A similar pattern has emerged outside the major cities, despite the much lower numbers of rioters involved. Gloucestershire Police made 40 arrests and prosecuted 19 offenders.

One in six of those arrested are alleged to have carried out subsequent robberies, burglaries, grievous bodily harm, criminal damage and public order offences. In Cheshire, 110 of the 250 people arrested over the riots have faced further police action.

 But the true number of rioters who have committed other crimes could be even higher.  Some of the largest police forces, such as the Metropolitan Police, have been unable to calculate the proportion of reoffending due to the sheer number of cases it had to deal with.

Yesterday, Dr David Green, of think-tank Civitas, said: ‘This is a reaffirmation that nothing has changed after the rhetoric.  ‘I think the picture is that a lot of people who were arrested and charged and found guilty were already serious criminals.  ‘This is a reminder that in this country we do not punish our career criminals properly.

‘They are allowed to go in and out of jail and this just reaffirms that we are continuing the same bad practice. If you punish them lightly you will get more crime.’

The figures come days before the anniversary of the riots, which started in London on August 6 last year and quickly spread around the country over four days of violence and looting. Official figures show that 1,968 people were sentenced for their involvement in the riots.

As of last month, 1,292 of them had been jailed but some 700 – including burglars, thieves and violent thugs – have already been released.

And 676 were let off with community punishments, suspended sentences, fines or saw their crimes ‘discharged’ by the courts.

A Ministry of Justice spokesman said: ‘Nearly 1,300 people were sentenced to immediate custody with an average prison term of more than 16 months each and a high number receiving far longer sentences.  ‘If people go on to commit further offences their previous crimes will be taken into account, and they could find themselves facing even longer prison sentences.’


Australia: Law protects early-term fetus, judge says

A JUDGE has rejected a man's last-ditch attempt to have his trial for killing an unborn baby thrown out, ruling the legislation was wide enough to protect the early-term fetus.  The man was accused of causing a miscarriage after he assaulted his wife, who was 15 to 18 weeks pregnant.

He pleaded not guilty in the Supreme Court in Cairns last month to killing an unborn child in December 2004 at Saibai Island in the Torres Strait.

The man was acquitted at the end of the trial, but not before his lawyer tried to have the charge thrown out after the crown closed its case.

His lawyer argued there was no case to answer as the fetus was not a child within the meaning of the law because it was too young to survive outside its mother's womb.

Justice Jim Henry rejected the argument and published his reasons for doing so on Thursday.  Justice Henry found the law did not qualify the age of unborn children covered under the piece of legislation used to prosecute the charge.

He acknowledged the matter attracted significant philosophical debate but said that had no relevance to the interpretation of this section of law.



Political correctness is most pervasive in universities and colleges but I rarely report the  incidents concerned here as I have a separate blog for educational matters.

American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of  other countries.  The only real difference, however, is how much power they have.  In America, their power is limited by democracy.  To see what they WOULD be like with more power, look at where they ARE already  very powerful: in America's educational system -- particularly in the universities and colleges.  They show there the same respect for free-speech and political diversity that Stalin did:  None.  So look to the colleges to see  what the whole country would be like if "liberals" had their way.  It would be a dictatorship.

For more postings from me, see TONGUE-TIED, GREENIE WATCH,   EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCHAUSTRALIAN POLITICSDISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL  and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine).   My Home Pages are here or   here or   here.  Email me (John Ray) here.  For readers in China or for times when is playing up, there is a mirror of this site  here.


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