Can anyone comment on the legality of this? IANAL and it’s just a feeling, but it seems like this must be unconstitutional somehow?
There are fun loopholes though. Here's the text of the condition for facebook.
"CAFETERIA CONDITION: In order to foster synergy between office, restaurant, and retail uses in the Center and realize the economic vitality of the project, the project anticipates employees in the office space will utilize food and retail services available in the Center. The applicant will encourage tenants and employees of tenants to utilize food and retail services available in the Center. Neither the applicant nor tenant(s) will subsidize meals by more than fifty percent (50%) or provide free meals for employees in the office space on a regular daily basis. An employer can subsidize or pay for employee meals as long as they are patronizing restaurants in the Center.
In addition: The applicant may make a request to amend this condition. The City Manager or a designee may make a recommendation to the City Council on this matter."
So for example:
Facebook could open a restaurant in the center. If it does, it cannot legally choose to discriminate in who they serve (in california, anyway. In a lot of states you often can).
It can, however, legally price discriminate in various ways (AFAIK, if someone has case law otherwise, love to see it). This is in fact, quite common.
So for example, it could charge the public that walks in 1 million a meal. It could offer advance tickets to employees at no charge, and no one else.
This is also non-discriminatory on the basis of race, color, religion, or national origin (which is what the 1964 civil rights act covers), disabilities (covering the ADA), etc.
I don't believe it would be found discriminatory to a protected class in most states (a lot of states add political affiliation, etc).
(this is just an example, and one i'm sure the IRS would have fun with :P)
How would that work for a huge complex like the Googleplex?
They'd have to provide public access to all parts of their complex to comply.
> So for example, it could charge the public that walks in 1 million a meal.
Not a lawyer, but I think that will break the law. Otherwise, "public access" will become completely meaningless: if I don't like you, all items on the menu are no $1m, and of course you cannot stay on premise without ordering...
I'd love to hear a real lawyer analyzing this, but imho, both your suggestions constitute attempts to completely circumvent a law based on technicalities, which is a dangerous game to play when you're a corporation with offices in the jurisdiction of the legislative body you're trying to circumvent.
Your simple solution will also not work for very large businesses (due to the need to open up their entire campus for public access), nor small ones (who can't afford the cost in funds and labor of creating a separate public-access restaurant).
In my estimation, this will make any company think twice about starting a big office in MTV.
I don't think they have really thought this through though. For example, would this forbid a soupe kitchen that serves hot meals, how about a nursing home or a hospital?
It has no bearing on what sorts of non-speech activities you can regulate, even though they happen to involve money.
CU (and before it Buckley v. Valeo) stands (in relevant part) for the idea that the right to spend money on Constitutionally protected expression is itself part of the scope of the right protected. It's not “money is speech” but “the freedom to spend money on speech is part of the freedom of speech”; the former makes a better soundbite and can be a useful memory aid, but loses critical information if taken as the core message.
Next thing you know they're going to ban the office supply cabinet and if you need pens or paperclips you need to take a trip to the local Staples.