A government boycott of a company for an exercise of free speech would be a flagrant violation of the First Amendment.
Chick-fil-A has been heavily criticized for its reputation as a supporter of traditional marriage. The company’s CEO has made public comments in support of traditional marriage, and the company has donated money to organizations that opposed same-sex marriage before the Supreme Court ruled on the issue.
While it is Chick-Fil-A’s constitutional right to engage in free speech, liberal government officials around the country could not stand it. When Chick-Fil-A attempted to re-open a franchise at the Denver International Airport, the city council saw its opportunity for retribution.
Councilman Paul Lopez called his opposition to allowing the chain at the airport “really, truly a moral issue on the city.” “We can do better than this brand in Denver at our airport, in my estimation,” another member Jolon Clark said.
The problem was that Chick-Fil-A’s speech was protected by the First Amendment, which meant the government could not punish the company in retaliation for its speech. The Denver officials had made it abundantly clear that their opposition to allowing Chick-Fil-A into the airport was due to their personal objection to Chick-Fil-A’s speech. Because of this, the city was ultimately forced to allow the chain into the airport.
You don’t have to be a constitutional scholar to understand that this exclusion would have been a violation of the First Amendment. It doesn’t even pass the smell test. If something like this happened in Mississippi, many citizens would be outraged. Rightfully so.
But this is happening in Mississippi right now, just not to Chick-Fil-A. Instead, Nike has drawn the ire of the Mississippi Department of Public Safety (MDPS) for its new ad campaign featuring former NFL quarterback Colin Kaepernick, who is widely known for sparking a protest movement in professional sports where players kneel during the national anthem.
The MDPS commissioner recently announced to the Associated Press that MDPS will no longer purchase training equipment from Nike.
Like the Denver officials, the MDPS commissioner made clear that his decision to initiate a government boycott was based on his personal objection to the speech made by Nike, saying: “As commissioner of the Department of Public Safety, I will not support vendors who do not support law enforcement and our military.”
The commissioner’s views are understandable and well-intentioned. He is a Navy veteran and a long serving law enforcement officer. He appears to feel strongly about this issue.
As a proud American myself, and as a fellow military veteran who lost a leg in Iraq, I would not personally choose the national anthem as a venue for protest as Kaepernick has, or to highlight this act as Nike has. However, I fought to protect their right to do just that without fear of government retribution, and I am always heartened to see citizens actually exercising that right.
Moreover, the Mississippi Center for Public Policy, of which the Mississippi Justice Institute is a division, has clearly communicated, on several occasions, its opposition to using the national anthem as a venue to protest at sporting events.
But this issue is not about the commissioner’s views or my views on Nike’s speech, or the identity politics which would elevate our views above those of others based on our status as veterans. It is about the Constitution that we have both sworn to protect.
A government boycott of Nike is simply unconstitutional.
Here is the tricky thing about the Constitution: it works both ways. If you stand by and watch its protections erode while your adversaries’ rights are under assault, you can’t be shocked when its protections are not there for you when the tables are turned. If you don’t want a government boycott of Tim Tebow’s kneeling, you can’t defend a government boycott of Colin Kaepernick’s kneeling.
A government boycott in retaliation for corporate speech also ignores Mississippi law establishing bidding requirements for most public purchases. We have those laws for a reason.
Lastly, conducting a government boycott is simply not the proper role of government. A public official boycotting vendors with certain views implies that taxpayer money is their money, to reward or punish whom they see fit based on their own personal beliefs. Many Mississippians may agree strongly with the vendor’s message, and other Mississippians may oppose it. The government should not use public funds to attempt to speak for all taxpaying Mississippians on matters of public discourse.
If a public official wants to personally boycott a company in response to its speech, they are free to do that and the First Amendment protects that right for them. But when acting in their official capacity using taxpayer money, neither the Constitution, nor Mississippi law, nor a healthy respect for the opinions of their fellow Mississippians allow for such personal indulgences.
The Mississippi Justice Institute has requested the commissioner to rescind his government boycott. We trust he will uphold our Constitution.
This column appeared in the Clarion Ledger on September 28, 2018.