General Discussion
In reply to the discussion: if Rahm has the right to block a restaurant from being built... [View all]Jim Lane
(11,175 posts)The Supreme Court has held that commercial speech, being outside the core concern of the First Amendment, is entitled to less protection (but still some protection). The government can prohibit Chick-fil-A from advertising that its chicken cures cancer. That doesn't apply to political speech (such as denunciation of marriage equality) by a commercial entity.
The government may also impose general, content-neutral rules that incidentally burden free speech, such as taxing newspapers. That doesn't mean, however, that the government could set the tax rate as 35% for papers that endorsed McCain and 50% for papers that endorsed Obama. Nor, to use your example, could the tax rate be different depending on whether the paper supported a particular set of political views.
You don't comment on my specific example -- a wingnut parallel to your ordinance, one that would use zoning to discriminate against a business whose leaders made progressive statements about public policy issues. (I don't mean to single you out here. In all these Chick-fil-A threads, the proponents or defenders of government retaliation against Chick-fil-A have generally been loath to comment on examples that apply their arguments to the other side.) Could a right-wing City Council craft a zoning ordinance that would exclude businesses whose principals had publicly endorsed marriage equality, or who had contributed money to the Sierra Club or the ACLU? My answer is that there's not a federal appellate judge in the country who would uphold that ordinance -- not under the Commerce Clause or zoning power or anything else.
From your post #198, I gather that you'd rely on the Fourteenth Amendment, presumably the Equal Protection Clause. That clause applies only to government action, not to private comments about government action. I think you're saying that the government may discriminate against people who express opinions about the interpretation of the Fourteenth Amendment if you disagree with those opinions, but may not discriminate against the people who agree with you. That won't fly. Someone who says "I don't think that the Fourteenth Amendment creates a federal constitutional right to same-sex marriage" -- or, for that matter, someone who says "I think the Fourteenth Amendment should be repealed" -- is engaged in protected speech, and the government may not retaliate against the speaker based on disagreement with the ideas expressed.