Disney v. DeSantis, Trump v. Hawaii, and Citizens United v. FEC

 by Michael C. Dorf

The lawsuit by Disney against Florida Governor DeSantis makes constitutional claims under the Contracts Clause, the Takings Clause, and the Due Process Clause, as well as two First Amendment claims. In this essay I focus on the fourth cause of action, which strikes me as the central claim and certainly the one that the narrative portion of the complaint most clearly tees up: that the legislation DeSantis promoted and signed to abolish the Reedy Creek Improvement District (RCID) and replace it with an institution beholden to the governor was retaliation for Disney's exercise of its First Amendment right to free speech--in particular, its criticisms of the so-called Don't-Say-Gay law. Disney's factual claims seem unassailable. Its legal position is also strong, but it intersects interestingly with two highly controversial SCOTUS cases.

In today's essay, I'll compare and contrast Disney's First Amendment claims with Trump v. Hawaii, which upheld Donald Trump's anti-Muslim travel ban, and Citizens United v. FEC, which invalidated limits on corporate campaign speech. As I explain below, Disney should win under both the precedent as is and even as one might wish to see the First Amendment construed more sensitively to worries about undue corporate political influence.

Under Federal Rule of Civil Procedure 8, plaintiffs need not provide much in the way of factual detail in a complaint. To be sure, two SCOTUS decisions known collectively by the portmanteau Twiqbal require sufficient detail to render a complaint plausible, but the Disney complaint goes way beyond that threshold. That's not at all uncommon in civil litigation. Especially if lawyers anticipate a defense motion to dismiss, they realize that the complaint may be all that the trial judge or an appeals court sees.

The Disney complaint provides detailed and overwhelming evidence that the legislature and governor of the Sunshine State abolished RCID and replaced it with a body stacked with DeSantis apparatchiks to punish Disney for having " 'cross[ed] the line' -- a line evidently separating permissible speech from intolerable speech." The complaint draws some of its most powerful evidence from DeSantis's own unintentionally ironically titled and blandly platitudinous memoir The Courage to be Free. Technically, allegations in a complaint aren't "evidence," but if the case goes to trial, there would be little difficulty getting the underlying statements into evidence should the case go to trial. Lawyers for the defendants (DeSantis plus seven other Florida officials) will likely argue that the legislature had mixed or unknowable motives, but no fair-minded person can read the recent events as anything other than retaliation.

There is a body of scholarly literature arguing that illicit motive--standing alone--should never be sufficient to invalidate government action that would be lawful absent the illicit motive. Here's a broadly sympathetic view of that literature by my constitutional law casebook co-editor Prof Richard Fallon. Here's my response to Prof Fallon, agreeing with some but not all of his arguments. The important point for now is that whatever one thinks the law should be, there is no question that civil liability can sometimes attach for constitutional violations that turn on the subjective motive of government officials.

Last year, in Egbert v. Boule, the Supreme Court held that it would not allow a judge-made damages remedy against federal officials for First Amendment retaliation, but it surely did not suggest that government retaliation for free speech is permissible under the First Amendment. Thus, Egbert has no bearing on Disney's suit for declaratory and injunctive relief against state officials (where both a federal statute and the doctrine of Ex Parte Young provide causes of action).

Even so, as Prof Buchanan observed in his essay here yesterday, there is a prima facie similarity between Disney's lawsuit and the challenge to the third version of Trump's Travel Ban that SCOTUS rejected in Trump v. Hawaii. There the issue was anti-Muslim bias in violation of the First Amendment's Establishment Clause rather than retaliation in violation of its Free Speech Clause, but the basic structure of the cases is parallel. In each, the essence of the complaint is that a government official took action for an illicit motive. In each case, there is overwhelming evidence that, but for the illicit motive, the government would not have taken the action. Given that SCOTUS nonetheless upheld the Travel Ban, does that mean that it or the Eleventh Circuit will also validate DeSantis's actions regarding Disney?

I agree with Prof Buchanan that sufficiently ideologically motivated judges or Justices could so rule, but if they did, they would be acting in bad faith because there is a critical distinction between the Travel Ban Case and the Disney case. Part IV of the opinion for the Court by CJ Roberts in Trump v. Hawaii makes abundantly clear that it is applying a special rule because the case arose in the immigration and foreign policy context, where deference to the Executive is at a premium. Accordingly, the Court leaves open the possibility that no review of subjective motive would be appropriate in this context (in light of Kleindienst v. Mandel) but then goes on to apply the essentially toothless standard of rational basis scrutiny. That standard plainly has no bearing on a retaliation claim arising in the domestic context and involving property and local governance. Thus, only a year after deciding Trump v. Hawaii, SCOTUS rejected the particular retaliation before it in Nieves v. Bartlett but gave not even a hint that anything like the standard of Trump (which no Justice cited) applies in domestic retaliation cases.

Liberal readers hoping that Disney will prevail will thus be heartened to learn that the Court's dreadful decision in Trump v. Hawaii should not stand as an obstacle. Nonetheless, should they be discomfited by the fact that Disney has First Amendment rights only because of decisions like Citizens United that afford such rights to corporations? If free speech is for people, and corporations aren't people, then is there an element of hypocrisy in supporting a lawsuit by a corporation asserting its right to use its wealth and power with respect to a contentious political issue? If we think corporations shouldn't have free speech rights, surely that means they shouldn't have free speech rights regardless of whether we agree or disagree with what they want to say.

For myself, I have never been persuaded by the broad critique of Citizens United and other cases that grant corporations free speech. In my view, the Court ought to allow greater regulation of campaign finance than it does but on other grounds. Articulating and defending those other grounds would be a very long tangent here, however, so I'll simply bracket that view and assume, for the sake of argument, that my readers agree with the corporations-aren't-people critique of Citizens United. Even so, the First Amendment should protect Disney against retaliation.

Justice Kennedy's opinion for the Court in Citizens United rested on his assertion that speaker-based speech regulations are no better, from the First Amendment's perspective, than content-based regulations. Nonetheless, the law at issue in that case was content-neutral. It forbade certain independent corporate (and union) expenditures regardless of what candidates those expenditures supported or the positions those candidates advocated. By contrast, a retaliation claim necessarily alleges that the government bases its punishment on the content of speech, indeed, on its viewpoint. And crucially, viewpoint-based restrictions are presumptively unconstitutional even when free speech rights are limited.

Consider that although government has great latitude to regulate speech on government property that is not a so-called public forum, even in a nonpublic forum, the government may not enforce viewpoint-based restrictions. I could go into the cases, but a hypothetical example will make the point more clearly.

Suppose SCOTUS were to overrule Citizens United and other cases holding that corporations may assert free speech rights. Then suppose Congress or a state legislature were to pass a law forbidding corporations from making certain certain independent expenditures in support of Republicans but not Democrats (or vice-versa) or forbidding corporate expenditures in opposition to some extant government policy but allowing such expenditures in support of that policy. Such laws would be obviously unconstitutional as viewpoint-based, even though (I'm assuming here that) corporations would have no free speech "rights."

The Court held in R.A.V. v St. Paul that even within a category of "unprotected" speech, the First Amendment still forbids certain kinds of censorship. Likewise, even with respect to "unprotected" speakers, certain kinds of censorship are impermissible. Put simply, Disney's case does not depend on Citizens United being correct. Accordingly, readers should feel free to back the Magic Kingdom without worrying that they are thereby betraying their principles.