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Disney Loses, Despite Retaliatory Purpose

It was a dumb fight to pick for a business that relied upon the largesse of the state and for a state that relied upon the largesse of a business. In the heat of the moment, Disney employees pushed for the company to speak out against Florida’s “Don’t Say Gay” bill. CEO Bob Iger succumbed to pressure. But in response, Gov. Ron DeSantis decided to teach Disney a lesson by seizing control of the “special tax district” that was DisneyWorld.

Disney sued DeSantis and others, arguing that the governor’s actions were in retaliation for its speech critical of his law and thus violated its First Amendment rights. Northern District of Florida Judge Allen Winsor, a Trump appointee, tossed the suit.

But Judge Winsor found that the law giving Mr. DeSantis control of the special tax district was written in a way that — on its face — did not allow Disney to claim retaliation, mostly because Disney was not the only landowner affected.

“It is settled law that ‘when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose,’” he wrote in his ruling.

The court accepted that DeSantis’ motivation was retaliatory, a government imposing punishment on a corporation for taking a position that angered the governor. And Judge Winsor held that Disney had standing based upon the constitutional detriment caused by DeSantis seizing control of the Reedy Creek Improvement District.

Before the legislative amendments, Disney enjoyed voting rights in the district that regulated its property. Now it does not. Now it faces land-use decisions by a board over which it has no control. Disney’s loss of control is enough to constitute a constitutional injury. And that injury is clearly traceable to the board that now makes land-use decisions affecting Disney.

But that injury didn’t give rise to an action against the governor for violating Disney’s free speech because, Judge Winsor held, the law enacted was otherwise constitutional, the state had the authority to enact the law and that the governor’s purpose was retaliatory did not make an otherwise good law unconstitutional.

“As a general matter, the First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022) (cleaned up). But it is settled law that “when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose.” Hubbard, 803 F.3d at 1312. The Eleventh Circuit has “held that many times.” Id. And this settled law forecloses Disney’s claim.

The court relied heavily on In re Hubbard,

In Hubbard, the Eleventh Circuit relied heavily on United States v. O’Brien, a leading First Amendment precedent. 391 U.S. 367 (1968). The O’Brien plaintiff burned his Selective Service registration certificate to protest the Vietnam War. Id. at 369. Charged with violating a statute that prohibited knowingly destroying such certificates, he claimed the statute was unconstitutional because its purpose was to suppress free speech. Id. at 370. But the United States Supreme Court rejected his claim. Id. at 383. It noted the “hazardous” nature of inquiring into legislative motive, and it declined to void a statute “essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.”

Essentially, the argument is that if the law could be constitutionally enacted but for the impermissible purpose, then the impermissible purpose of retaliating against the exercise of First Amendment rights doesn’t make the law unconstitutional.

As Disney appropriately acknowledges, the Legislature can determine the structure of Florida’s special improvement districts. Disney does not argue that the First Amendment (or anything else) would preclude the Legislature from enacting the challenged laws without a retaliatory motivation. Cf. O’Brien, 391 U.S. at 384 (noting that “Congress had the undoubted power to enact” the challenged law). The laws here, as in Hubbard, do not facially “impinge on any constitutional rights.” 803 F.3d at 1313. And as in Hubbard, the only basis for the claim here is that the Legislature had a retaliatory motive. So as in Hubbard, there is no “cognizable First Amendment claim.”

While this might strike one as bizarre, considering that it would seem to include enacting an otherwise facially constitutional law for the express purpose of “putting black people in their place,” the court held that cases involving free speech retaliation, as opposed to race and religion, deserve only a lesser degree of protection.

First, Disney argues that notwithstanding Hubbard, “courts frequently inquire into legislative motive to determine whether a facially constitutional statute was enacted for an impermissible purpose.” But it relies on race and religion cases, as well as cases involving statutes designed to regulate speech…The fact that other types of claims allow evaluation of legislative purpose does not undermine Hubbard’s application here.

The court similarly dismissed Disney’s argument that this law was akin to a bill of attainder, a law enacted solely to harm Disney, which would remove it from the Hubbard analysis altogether. Judge Winsor rejected that argument, as the law did not single out Disney on its face, even if its express purpose was to put Disney in its place.

This raises a curious specter if it’s upheld by the Eleventh Circuit, as it would empower government to retaliate against protected speech provided it could have take the same action but for its impermissible purpose. Given DeSantis’ many statement leaving it beyond doubt that this was intended to punish Disney for criticizing his anti-woke law, it provides a roadmap for the suppression of free speech.

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