San Antonio politicians decided to ban Chick-fil-A from opening in the airport over perceptions of the chain’s politics disagreement with the chicken restaurant’s donations to certain charities. Buffalo pressured concessionaire Delaware North to withdraw Chick-fil-A from its plans and will (disingenuously) paint the move as voluntary.

I’m strongly in favor of marriage equality and hosted key figures in the debate on this issue at events long before it was popular to do so. I also have great concerns about government deciding which businesses can succeed on their basis of the views they express.

Most Chick-fil-A opponents wouldn’t want President Trump making loyalty to his administration, for instance, a precondition for receiving government preferences, business, or tax breaks.

The San Jose airport is taking a different approach. They approved a Chick-fil-A last year, but will hang a rainbow flag near the Chick-fil-A. In other words, they’re going to use government-sponsored speech to combat the ideas the city council believes are embedded in the chicken chain.

The San Jose City Council voted 11-0 on Tuesday to hang rainbow flags in support of LGBTQ people and pink, blue and white flags for transgender rights at or near a Chick-fil-A due to open in May at San Jose International Airport.

…San Jose Vice Mayor Charles Jones said the plan is to have a flag or flags near the restaurant and outside of the airport.

The San Jose flag project goal is explicitly to be “a counter-signal to the discrimination supported by Chick-fil-A” and to flip the supposed embedded meaning of Chik-fil-A by making it the “gayest Chick-fil-A in the country.”

It’s fairly clear that what San Antonio is doing is not permissible under current law. The government may not discriminate based on a business’s speech or expressive associations (e.g. Board of County Commissioners v. Umbehr (1996)).

I’d love to hear from experts on first amendment law with respect to what San Jose is doing. I’d imagien that placing flags embodying specific beliefs inside the airport is permissible however doing so to combat or retaliate against a business’s expression is problematic.

Eventually the Chick-fil-A may be kicked out of the San Jose airport. I’ve written for years that it would seem more defensible to argue that airport restaurants must open seven days, utilizing airport space as effectively as possible to offer food to passengers at all times. Chick-fil-A does not open Sundays. Under new rules the airport will not offer a two year contract extension in 2026 to businesses which aren’t open every day of the week. That, too, of course could be subject to litigation since the underlying motivation for the rule appears to be invidious in this case.