As I suggested Friday and yesterday, Supreme Court precedent is unclear on whether Florida’s dissolving the special government district that Florida had created for Disney in the 1960s violates the First Amendment. On one hand, the dissolution appears to be retaliation for Disney’s prominent opposition to the Florida law that restricts “classroom instruction by school personnel or third parties on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards”; government retaliation for a person’s or corporation’s speech is often unconstitutional. On the other hand, the dissolution is the withdrawal of specially legislatively granted governmental power, not a generally available benefit or contracting opportunity, and that may well be constitutional.
Lawyer Adam Schulman, however, points out that the precedent in the Eleventh Circuit—the federal appellate court in charge of, among other things, Florida cases—is very much against any First Amendment challenge.
In 2011, the Alabama Legislature barred payroll deductions “of any contribution to an organization that uses any portion of those contributions for political activity.” A union (the Alabama Education Association) sued, claiming the statute violated the First Amendment “the subjective motivations of the lawmakers in passing the Act were to retaliate against AEA for its political speech on education policy. No, said the court in In re Hubbard (11th Cir. 2015):
[A]s a matter of law, the First Amendment does not support the kind of claim AEA makes here: a challenge to an otherwise constitutional statute based on the subjective motivations of the lawmakers who passed it.
In United States v. O’Brien, the Supreme Court held that, as a “principle of constitutional law,” courts cannot “strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” The plaintiff in O’Brien had challenged a congressional statute on free-speech grounds by citing from the legislative history statements of three Congressmen and then using those statements to argue that “the ‘purpose’ of Congress” in passing the statute “was ‘to suppress freedom of speech.'” The Supreme Court rejected the challenge outright, citing the “fundamental principle of constitutional adjudication” that courts may not “void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen said about it.”
This Court’s precedent applying O’Brien recognizes 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. We have held that many times.
The O’Brien rule applies here because Act 761 does not, on its face, impinge on any constitutional rights…. The only basis for AEA’s retaliation claim is the alleged retaliatory motive that Alabama’s lawmakers had when passing Act 761. That is precisely the challenge that O’Brien, and our decisions following it, foreclose.
This suggests that, under Eleventh Circuit law, a court likewise can’t strike down the legislative dissolution of the special government district that the legislature had earlier created for Disney, even if “the subjective motivations of the lawmakers who passed it” were “retaliation” for Disney’s speech.
In re Hubbard did distinguish an earlier case that had struck down a school board policy forbidding payroll deductions for “GAE [Georgia Association of Educators]-GCAE [Gwinnett County Association of Educators] members,” on the grounds that “the school board did not adopt a generally applicable policy—it specifically singled out ‘GAE-GCAE members.'” I suppose that Disney could argue that the district dissolution specifically singles out the district created to benefit Disney (the Reedy Creek Improvement District). But I don’t think that’s what In re Hubbard was getting at: The earlier statute had on its face treated people differently based on their membership in particular expressive associations (GAE and GCAE), which is First-Amendment-protected activity. The Florida law dissolving the district on its face targets a particular government district, not particular First-Amendment-protected speech or expressive association. The challenge would be based on the speech-based motivation of the legislators, not on the face of the statute; and In re Hubbard appears to foreclose that challenge.
To be sure, I don’t think the O’Brien precedent from the Supreme Court fully disposes of the matter, and Reed v. Town of Gilbert (2015) suggests that First Amendment challenges based on legislative motive are permissible. But In re Hubbard, though it didn’t cite Reed, was decided after Reed; and I’m inclined to say that federal district courts in the Eleventh Circuit, and panels of the Eleventh Circuit, would and should likely follow In re Hubbard and reject any challenge to the Florida law dissolving the district. Reed might come up if the Eleventh Circuit agrees to hear the case en banc, of the Supreme Court agrees to hear the case; but both such results seem pretty unlikely.
In any event, I thought I’d pass this along to our readers. Thanks to Adam Schulman for bringing this up, and to Dilan Esper for alerting me to Schulman’s point.