In the space below, we raise and begin to analyze several interesting legal issues raised by the recent decision by a federal district court judge to dismiss the lawsuit filed by the Disney Corporation against Florida officials for alleged retaliation (against Disney’s outspoken opposition to certain Florida laws and policies) by altering the structure of the board that regulates the land in which Disney World is located. Since many of the constitutional issues raised are complex (and somewhat unresolved by the U.S. Supreme Court), our thoughts today are in the nature of issue-spotting; at least two of us are delving into these questions more deeply in academic scholarship.
To begin with, some background. Walt Disney World is physically located within a so-called special improvement district that the Florida legislature created in 1967. The law creating the district provided for a governing board, with members elected by landowners and votes allocated in proportion with land ownership. (Although as a general matter, voting within state and local government must follow the one-person, one-vote rule of Reynolds v. Sims, the Supreme Court has permitted voting rights to vary according to land ownership for certain local government bodies that do not exercise full regulatory authority.) Disney, as the largest (by far) landowner in the district, enjoyed the most votes and therefore controlled the board membership. None of this was accidental: Florida recognized the enormous economic benefits Disney brought to the state and so maximized its clout over the body that determined land use regulations. The favorable arrangement ended abruptly in 2023 when the state legislature adopted a new mechanism to select board members: nomination by the governor and confirmation by the state senate. Disney then sued in federal court, seeking an injunction against the implementation of the new law and exercise of power by the new members. In its suit, Disney asserted that the state had amended the law governing the district in retaliation for Disney’s criticisms of Florida’s Parental Rights in Education Act of 2022. Among other things, that statute limits classroom discussion of sexual orientation and gender identity; it has been deemed by critics the “Don’t Say Gay law.” Disney argued that by yanking its control of the district in retaliation for Disney’s past speech, the state had violated the First Amendment.
In a ruling last month, U.S. District Court Judge Allen Windsor granted the state defendants’ motions to dismiss Disney’s lawsuit. Disney had named Florida Governor Ron DeSantis, the state secretary of commerce, and the members of the special district’s governing board. Judge Windsor held that Disney lacked standing to sue DeSantis because even though Disney had articulated an injury—a loss of control over the governing board and its land-use decisions—that injury was not fairly traceable (as Article III requires) to any future (and thus injunction-worthy) actions of the governor, either in his making appointments to the board or, as Disney alleged, his exercising influence over it. Judge Windsor likewise concluded that Disney had not alleged any injury that could be attributed to the secretary, whose role was purely ministerial.
More interesting for our present purposes, Judge Windsor held that although requirements of standing were met with respect to the board members sued, Disney’s First Amendment claim against them failed on the merits. After noting that the First Amendment generally prohibits government from retaliating against protected speech, Judge Windsor wrote that “it is [nonetheless] 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.” Because the state statute altering the selection process for the board members was valid on its face—Disney conceded that absent a retaliatory motive the state could adopt the change in governance structure that it did—Disney could not prevail on a claim that the legislature had enacted the statute to retaliate against Disney for its speech.
In support of this “settled law,” Judge Windsor invoked a 2015 case from the Eleventh Circuit (in which the district court sits), In re Hubbard. In Hubbard, the appellate court rejected a First Amendment challenge to an Alabama statute restricting payroll deductions for public-employee union dues brought by a union that argued the legislature had enacted the law in retaliation for the union’s political speech. The court invoked language from the Supreme Court’s 1968 decision in United States v. O’Brien to conclude that courts may not inquire into legislative motive to invalidate otherwise valid laws on First Amendment grounds. O’Brien is a famous decision rejecting a Vietnam War-era challenge to a federal statute prohibiting destruction of draft cards. Defendant O’Brien argued that the statute violated the First Amendment because, he said, as reflected in statements by some members of Congress, Congress’s purpose was to suppress speech. The Court refused to look behind what it concluded was an otherwise valid statute on the ground that the legislators who voted for it acted with illicit motive. “Inquiries into congressional motives or purposes are a hazardous matter,” the Court explained, and a statute cannot be challenged “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.” In Hubbard, the appellate court viewed O’Brien to impose a clear and decisive bar on First Amendment retaliation claims against otherwise valid statutes. And Judge Windsor concluded that bar exactly applied to Disney’s lawsuit.
In the course of dismissing the lawsuit, Judge Windsor rejected several arguments Disney had made in seeking to avoid an application of the Hubbard rule. First, Disney cited numerous other cases in which courts (including the Supreme Court) have approved inquiry into legislative motive. Judge Windsor concluded, however, that those cases were inapplicable either because they involved allegations of discriminatory motive based on race or religion or because they involved enactment of statutes that overtly regulated speech (albeit in facially unproblematic ways) rather than, as here, the composition of a governing board. Second, Disney argued that Hubbard did not apply because here the challenged law was not a general enactment but rather singled out Disney (much like a bill of attainder). Judge Windsor held, however, that even though Disney, as the largest landowner in the district, might bear the largest burden of the law, the new law did not refer to Disney specifically, and, indeed, it affected all district landowners. Third, Judge Windsor rejected Disney’s argument that Hubbard’s concern with the inherent intrusiveness of challenges based on legislative motive was not present in this case because (according to Disney) many legislators (and DeSantis) had made many public statements that supported Disney’s claim of retaliation, such that no meaningful judicial intrusion (via depositions, etc.) into the deliberative processes of the legislative body was required.
We think Judge Windsor’s ruling implicates many important questions under the First Amendment and other aspects of the Constitution.
First is the question of what a federal district court is supposed to do when there is a circuit court precedent that seems to be in tension with what the Supreme Court might rule today in those circumstances. The U.S. Supreme Court has opined (see, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc.) that, when its own past rulings seem to be out of step with the Court’s current direction, lower federal courts should continue to adhere to past Court decisions when they are clearly on point, and leave the (expected) overruling of such cases to the Court itself. The same rationale would tend to support the district court’s decision to faithfully abide by the rule laid down in Hubbard; because neither the U.S. Supreme Court, nor the Eleventh Circuit, has directly rejected Hubbard’s seemingly absolute refusal to entertain retaliation-based challenges to laws that are facially constitutional and that do not overtly regulate speech, the district court quite likely did the proper thing. This is true even though Hubbard itself could have reached the result it did on narrower grounds; because civil discovery to dig up evidence to support the plaintiff in Hubbard could very well have been intrusive, the Hubbard court could have rejected the plaintiff’s retaliation claim there without shutting down retaliation claims where, as here (according to Disney), no intrusive discovery is needed to establish improper government motive. Since Hubbard did not pursue that narrower ground of resolution, its statements foreclosing motive-based claims more generally are properly viewed as Hubbard’s holding, and since that holding hasn’t been subsequently eclipsed by the Eleventh Circuit itself or by the Supreme Court (either before or after Hubbard came down), Hubbard’s statements on this issue remain the law of the circuit.
Next is the question whether Florida’s change in the structure of the special district is, as the district court judge believed, a law that does not directly regulate speech. An argument might be made that voting is actually expressive activity, so that a law that changes voting rules (or, as in this case, removes voting rights altogether for a local governing body) regulates, rather than incidentally touches upon, speech. If the new statute were considered to be speech-focused, then Judge Windsor intimated that improper retaliatory motive could be a basis for its invalidation. And he would have been right, for the U.S. Supreme Court explicitly opined that motive inquiry is appropriate in cases involving regulation of speech. For example, in 2011, Justice Anthony Kennedy’s opinion for the Court in Sorrell v. IMS Health Inc., observed:
A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. (emphasis added).
The observation in Sorrell about the permissibility of motive inquiry where speech regulations are involved has been echoed in more recent rulings too, such as Reed v. Town of Gilbert (2015), involving signage regulation, (Even though Sorrell and Reed pre-date Hubbard, to the extent that a district court has to choose between a governing circuit precedent and a governing Supreme Court precedent, it must prefer the latter.)
But do laws (like the one Disney challenges) that change voting rights for local bodies amount to regulation of speech in the way that laws restricting parades or signs on one’s property do? It is not clear that they do—in part because to hold that laws restricting the way government bodies are constituted are laws that regulate speech would trigger meaningful review of a very wide range of laws that currently aren’t subject to the intermediate-scrutiny review that even content-neutral regulations of speech trigger. To be sure, laws that deal with voting also often trigger heightened scrutiny, but we would need to think more carefully before concluding that all laws dealing with government structure fit within a free-speech doctrinal framework.
All of this brings us to what we see as an even more fundamental, and vexing, question: if government is trying to retaliate against you because of your past speech, doesn’t that violate your First Amendment rights regardless of whether the retaliation takes the form of speech regulation itself? For example, if government passed a law imposing a special tax on property located within a congressional district whose voters favored Donald Trump, and if the retaliatory motive could be proven, should it matter that the retaliation took the form of a tax, rather than a ban, say, on rallies in that district?
To be sure, inquiries into legislative motive can be tricky business. Inquiries into motive under the Equal Protection Clause and the Free Exercise Clause might warrant different treatment than inquiries into motive under the free speech clause. And inquiries into motives of lawmakers might be a different matter than inquiries into the motives of those (executive) officials who implement laws. But if we allow (as Sorrell clearly suggests) inquiry into motives of lawmakers when they regulate current and future speech, why wouldn’t we allow inquiry into motives of lawmakers when they regulate non-speech activities in order to punish and suppress past speech?
It is true that when government regulates non-speech conduct in ways that may touch upon activities that people engage in for expressive reasons, we apply a different test (the so-called O’Brien test) than we do when government regulates speech directly. But (assuming that the O’Brien test is more lenient than the test governing content-neutral regulation of speech itself) that makes sense if our only reason for skepticism about the law in question is the facial scope of the law. But once a plaintiff says he has direct evidence of invidious motive, none of that would seem to matter.
An analogy here might be helpful: In the equal protection setting, laws that are gender-based on their face are viewed less skeptically (via intermediate scrutiny) than are laws that are on their face race-based (and thus subject to strict scrutiny.) But once we have direct evidence of invidious gender motive, we don’t apply a different standard to assessing such a law as when we have direct evidence of improper racial motive; in both instances, we invalidate the laws in question unless the impermissible motive was harmless error, that is, unless the laws in question would have been passed even absent the bad purpose.
A similar approach would seem to make sense in the speech-retaliation setting. But given the current murkiness over the topic, the members of the Supreme Court (and we scholars) have some additional thinking and clarification to do.
