By Mike Dorf
My latest Verdict column addresses the controversy over threats by various politicians to deny licenses and other legal necessities to Chick-fil-A based on the anti-same-sex-marriage speech of the company's president. I say that such threats violate the First Amendment but that there are circumstances in which government officials could permissibly consider the messages associated with particular businesses. (That's a very capsule summary, so if you don't quite get what I'm driving at -- and even if you do -- please go read the full column.)
In the course of the column I distinguish private boycotts. Of course, I say, it's permissible for private actors to decide they don't want to patronize Chick-fil-A because they disapprove of the anti-same-sex marriage views of its president. Here I want to ask whether the reasons private actors have for such withholding of business due to what I'll call downstream use of money are as strong as those they have for withholding of business due to upstream activity.
By "downstream" I mean to refer to what happens to the money a firm or its employees or officers receive as a result of one's purchases from the firm. Thus, when someone decides that she doesn't want to patronize Chick-fil-A because some fraction of her purchase will fund anti-SSM causes, she is withholding business based on a downstream concern. By contrast, by "upstream" I mean to refer to what had to happen in order to bring the good or service to market. When someone chooses not to buy chicken sandwiches at Chick-fil-A because he thinks it wrong to breed and slaughter chickens or someone chooses not to buy goods made by workers in sweatshops, he is withholding business based on an upstream concern.
Let's start with the upstream case. Refusing to purchase chicken sandwiches is a pretty direct way of registering disapproval of killing chickens--and it works without the proprietor even knowing that the potential customer disapproves. Thus, if a substantial number of former Chick-fil-A customers turn vegan and stop going to a particular restaurant, the restaurant will sell less chicken and therefore will order less chicken from its suppliers, leading eventually to fewer chickens being raised for slaughter. That's just the market working its magic.
Of course, it might be even better if the former customers told the store manager that they would like to come back to Chick-fil-A (perhaps because of the restaurant's lovely ambience!) if it would start carrying vegan options. And where the product is not inherently objectionable, it would be much better for the reason for the non-purchase to be articulated. When customers stop purchasing hoodies because they are made in sweatshops, the store owner will just stock fewer hoodies, rather than switching to a supplier that produces them in labor-friendly conditions.
Now contrast boycotts or individual decisions to withhold business based on downstream concerns. One can get some bang for the withheld buck simply by withholding the buck. Fewer customers for Chick-fil-A means less money for Chick-fil-A and thus less money for anti-SSM and anti-gay causes. So withholding does some good. But if the goal is to induce Chick-fil-A to stop supporting such causes entirely then one needs to organize as a formal boycott with well-articulated demands.
In the age of the internet and social media, that's not hard to do. And it seems to have worked in this case. Chick fil-A's website now states: "Going forward, our intent is to leave the policy debate over same-sex marriage to the government and political arena." Thus, for coordinated campaigns, activism based on downstream concerns seems about as easy as activism based on upstream concerns.
But what about the principle? In a market economy, is it even possible for one to avoid doing business with firms and people who will use some of the money for purposes to which one objects? And in cases in which it is possible, is it sensible?
Suppose you are considering hiring Joe or Sam to fix the roof of your house. Further suppose that Joe will do a better job than Sam. But suppose that Joe will spend some fraction of his money doing something you regard as wrong. Maybe he will give money to a candidate or cause you strongly oppose. Sam, by contrast, will use his profits for purposes you regard as innocuous. Do you have any moral obligation to hire Sam (and have your roof repair job done relatively poorly) instead of Joe?
I think the answer is no--or at least I think the answer is no if Joe's use of the money is wholly collateral to the job he does. If, on the other hand, he calls his business "The David Duke Tribute Roofer" or "KKK Roofing," then things look a little different. And I suspect that what was happening in the Chick-fil-A controversy: the company itself was associated with its president's statements because the company itself created a charitable arm that provided funds to anti-SSM and anti-gay groups.
But what about my hypothetical roofer--in the version in which he's just Joe the roofer? Although I said there is no moral obligation to avoid using Joe, we might still think it a good idea to avoid using Joe. Certainly I would be impressed by someone who used the inferior roofer Sam, simply because she didn't want to see Joe enriched and thus giving money to Joe's favorite causes.
Nonetheless, it strikes me that there is less moral force to the case for avoiding downstream effects than for avoiding upstream ones. Suppose that what Joe will do if he lands my business is to take his family out to a steakhouse on a night on which they would otherwise eat rice and lentils. Suppose further that I (somehow) know this. Even so, as a vegan, I think I do less wrong (and maybe no wrong at all) by hiring Joe than by eating a single steak myself--even though Joe's family of six will eat six steaks rather than just the one I am considering eating. Why? Because Joe's decision about how to spend his money breaks the causal link to my spending decision.
Now I'll confess that in most contexts I am strongly influenced by legal realist thinking about proximate causation: To say that A was a but-for cause of B but that A was not the proximate cause of B is simply a way of smuggling normative propositions into the discussion of causation. So I suppose that I should say that Joe's decision about how to spend his money is Joe's decision for which Joe is responsible, not I, even if Joe made as much money as he did because I hired him as my roofer.
Underwriting that intuition is both a practical concern--we can't possibly anticipate all of the downstream effects of our spending decisions--and a moral one: Within the law's bounds, people are entitled to make, and are responsible for, how they use their legally acquired money.