News Reedy Creek Improvement District and the Central Florida Tourism Oversight District

[mikejs78]

That may be, but courts have also held that there is a distinction between a right and a privilege.

From a TownHall.com editorial:

But that has zero to do with first amendment jurisprudence. The courts have consistently ruled that if the government can't do anything that may have a "chilling effect" on political speech. In this case, the chilling effect is, if you challenge DeSantis, we will take things away from you.

The town hall article tries to get around this by saying the law doesn't mention anything about speech - but it has been made clear from the governor to the leaders in the FL legislature that the intent of the law was to punish speech. You're not allowed to take away rights to punish speech as the government. You're also not allowed to take away privileges to punish speech as the government. Political speech is sacrosanct.

There's a lot of political sophestey going on right now, and very little of it has any basis in first amendment precedent.

 

[Brian]

But that has zero to do with first amendment jurisprudence. The courts have consistently ruled that if the government can't do anything that may have a "chilling effect" on political speech. In this case, the chilling effect is, if you challenge DeSantis, we will take things away from you.

The town hall article tries to get around this by saying the law doesn't mention anything about speech - but it has been made clear from the governor to the leaders in the FL legislature that the intent of the law was to punish speech. You're not allowed to take away rights to punish speech as the government. You're also not allowed to take away privileges to punish speech as the government. Political speech is sacrosanct.

There's a lot of political sophestey going on right now, and very little of it has any basis in first amendment precedent.

I'd argue that when Disney's entire case is predicated on the notion that the state of Florida violated it's first amendment rights by revoking RCID, a privilege, not a right, the distinction between rights and privileges is critical. My whole point in saying this is that it's not a "slam dunk" case for Disney.

 

[mikejs78]

I'd argue that when Disney's entire case is predicated on the notion that the state of Florida violated it's first amendment rights by revoking RCID, a privilege, not a right, the distinction between rights and privileges is critical. My whole point in saying this is that it's not a "slam dunk" case for Disney.

You're missing my point. The distinction between rights and privileges does not matter in free speech jurisprudence. It's made up.

 

[lazyboy97o]

I'd argue that when Disney's entire case is predicated on the notion that the state of Florida violated it's first amendment rights by revoking RCID, a privilege, not a right, the distinction between rights and privileges is critical. My whole point in saying this is that it's not a "slam dunk" case for Disney.

Think of the dangerous nature of that precedent, all of the things the government could take for engaging in political speech because they are a privilege and not a right. That’s a lot of damage that could be done that’s not being argued as acceptable government action.

 

[flynnibus]

What are you talking about? Employees get fired for their political speech on a regular basis -

I later removed this because I figured it would cause this distraction- entitlement is not a defense for discrimination against protected classes or retaliation.

Nor is it a defense in retaliation for speech by the government. The standard has been posted here multiple times.

Back to the topic at hand, I do think you and some others are presenting an overly simplistic view of the situation. The reason why many constitutional law court opinions are so lengthy is because they are complex issues wherein the judges weigh several competing arguments and factors.

Yes, when there are complex issues. The idea that only certain forms of retaliation is allowed is not one. Again, the 14th amendment prevents a state from stripping a constitutional protection. So the idea that this is ‘ok’ because it was something granted by a state law is fundamentally DOA. The topic of *can the state* remove this “perk” is 1000% immaterial to the question of the 1A and if this is chilling speech.

If you became an outspoken opponent of Desantis and then your wife is fired from her job on orders of the governor or theough his direct influenced - you’d have a case. Your wife was not entitled to that job… and it doesn’t matter! The action was taken as a step to have the chilling effect to deter you from expressing your protected speech. Just like the state house’s action was to deter, punish and try to change TWDC’s protected speech.

If I were a betting man, I would be willing to guess that a judge or judges would take into consideration the difference between being deprived of something one is entitled to under law versus something one is granted by the state without obligation under law and that they were entitled to take away.

And you’d be a horrible gambler - because you are making a bet without doing your homework first. The subject of evaluation is if it had the chilling effect and if it was in direct response to the protected speech — Not on what the origin of what was revoked.

That whole argument of claiming it wasn’t retaliation because it’s just normal state business was blown up by the stakeholders themselves. You can try to argue it wasn’t retaliation or that it didn’t have an impact on Disney’s protected speech — but not that this retaliation was —ok— because it was something first granted by the state. That’s not how it works.

What matters is the consequence of the action taken on the protected speech. They don’t care about the origin of the thing used to punish you.

 

[Brian]

Think of the dangerous nature of that precedent, all of the things the government could take for engaging in political speech because they are a privilege and not a right. That’s a lot of damage that could be done that’s not being argued as acceptable government action.

I have thought about it, and it scares the crap out of me, especially when we now have a so-called Disinformation Governance Board at the Department of Homeland Security. That's why I'm opposed to DeSantis' action.

That said, I think it's prudent in a conversation like this one to consider a scenario in which Disney may have a bigger hurdle to overcome in court, if they take that route.

 

[GoofGoof]

I'd argue that when Disney's entire case is predicated on the notion that the state of Florida violated it's first amendment rights by revoking RCID, a privilege, not a right, the distinction between rights and privileges is critical. My whole point in saying this is that it's not a "slam dunk" case for Disney.

It’s not a slam dunk case, but they have a pretty strong case if they wanted to pursue it. I don’t see Disney preferring that path. For them it’s better if this is settled quietly behind closed doors.

As far as right vs privilege there are many instances where something that is is not a right is still protected. For example in employment I don’t have a right to my job and as an at will employee my company has a right to fire me at any time without cause. However, they cannot fire me if the action is considered discriminating against a protected class. My employer cannot just claim that I have no case because I don’t have a right to a job. If I can prove they discriminated against me then it’s still illegal even though I don’t have a right to a job. In this case Disney would have to prove the action was taken as retaliation to their speaking out politically. That’s not a very difficult thing to prove.

 

[GoofGoof]

I have thought about it, and it scares the crap out of me, especially when we now have a so-called Disinformation Governance Board at the Department of Homeland Security. That's why I'm opposed to DeSantis' action.

That said, I think it's prudent in a conversation like this one to consider a scenario in which Disney may have a bigger hurdle to overcome in court, if they take that route.

I think if anything ends up in court it’s far more likely they allow the RCID bond issue play out in court. That’s a Federal issue so they bypass the local and State Courts and it’s pretty clear cut that the bondholders were given a guarantee from the state that the state has not fulfilled their commitment. It’s possible the courts rule they cannot dissolve the district until all of the existing bonds are paid off and that’s not until 2029 so it punts the issue 6 years down the line when the current political players are all long gone.

 

[peter11435]

I'd argue that when Disney's entire case is predicated on the notion that the state of Florida violated it's first amendment rights by revoking RCID, a privilege, not a right, the distinction between rights and privileges is critical. My whole point in saying this is that it's not a "slam dunk" case for Disney.

You realize it doesn’t really matter if it’s a privilege or a right? The distinction is irrelevant in this case.

That’s not the intent of the first amendment.

 

[Brian]

You're missing my point. The distinction between rights and privileges does not matter in free speech jurisprudence. It's made up.

If a police officer pulls over a driver for doing 85mph in a 45 zone, and the court later suspends their license because this was not the first time, that's pretty clear cut; driving is a privilege, not a right.

What about if their truck had a bunch of anti-government bumper stickers on it, and they were flying a Gadsden flag from their truck bed, and the officer said to him during the traffic stop: "This is Biden country." Can the driver reasonably make the case on appeal that their free speech rights were violated?

 

[mikejs78]

If a police officer pulls over a driver for doing 85mph in a 45 zone, and the court later suspends their license because this was not the first time, that's pretty clear cut; driving is a privilege, not a right.

What about if their truck had a bunch of anti-government bumper stickers on it, and they were flying a Gadsden flag from their truck bed, and the officer said to him during the traffic stop: "This is Biden country." Can the driver reasonably make the case on appeal that their free speech rights were violated?

It depends. Based on recent supreme Court precedent, if it could be shown that the officer treated this driver differently than he did other drivers doing similar things, then yes, the driver could make that case. If the officer had a history of pretty much stopping everybody who was going 85 or close to it, then he could not make that claim.

But that's not because it's a privilege versus a right in this situation. It's because the officer did have probable cause to stop the person. So now the judgment goes to whether or not this was consistent with others who did not engage in the same speech.

If the officer tells him he stopped him because of his bumper stickers, and there's evidence of that, that goes to the first amendment claim, even if he were going 85.

 

[UNCgolf]

If a police officer pulls over a driver for doing 85mph in a 45 zone, and the court later suspends their license because this was not the first time, that's pretty clear cut; driving is a privilege, not a right.

What about if their truck had a bunch of anti-government bumper stickers on it, and they were flying a Gadsden flag from their truck bed, and the officer said to him during the traffic stop: "This is Biden country." Can the driver reasonably make the case on appeal that their free speech rights were violated?

That's an obfuscation of the issue because the driver broke a law. There are other factors at play regarding whether the officer only pulled him over because of the stickers and not because of the speeding etc. but that makes it complicated.

A better hypothetical would be the state decides to revoke their license solely because of the bumper stickers and flag, and that's a pretty clear cut case that their free speech rights were violated (and also shows why the rights vs. privileges argument is nonsensical regarding free speech cases).

 

[ImperfectPixie]

That's an obfuscation of the issue because the driver broke a law.

A better hypothetical would be the state decides to revoke their license solely because of the bumper stickers, and that's a pretty clear cut case that their free speech rights were violated.

I was going to say if the driver could prove they weren't speeding (say, through a security or traffic camera), or if the officer made them remove the stickers and flag.

 

[lazyboy97o]

If a police officer pulls over a driver for doing 85mph in a 45 zone, and the court later suspends their license because this was not the first time, that's pretty clear cut; driving is a privilege, not a right.

What about if their truck had a bunch of anti-government bumper stickers on it, and they were flying a Gadsden flag from their truck bed, and the officer said to him during the traffic stop: "This is Biden country." Can the driver reasonably make the case on appeal that their free speech rights were violated?

Yes! If the motivation is to influence speech then it’s a problem and needs to be tossed out. Awful criminals do get to walk because the government violated their rights and blew the case.

In this case though the driver wasn’t going above the speed limit. Those involved haven’t bothered with a valid pretense of wrong doing, just “we can” and it’s not clear that they’re center can.

 

[Brian]

Yes, when there are complex issues. The idea that only certain forms of retaliation is allowed is not one. Again, the 14th amendment prevents a state from stripping a constitutional protection. So the idea that this is ‘ok’ because it was something granted by a state law is fundamentally DOA. The topic of *can the state* remove this “perk” is 1000% immaterial to the question of the 1A and if this is chilling speech.

If you became an outspoken opponent of Desantis and then your wife is fired from her job on orders of the governor or theough his direct influenced - you’d have a case. Your wife was not entitled to that job… and it doesn’t matter! The action was taken as a step to have the chilling effect to deter you from expressing your protected speech. Just like the state house’s action was to deter, punish and try to change TWDC’s protected speech.

I'll let Bob know to hire you on as corporate counsel since you seem so confident in their case.

 

[GoofGoof]

If a police officer pulls over a driver for doing 85mph in a 45 zone, and the court later suspends their license because this was not the first time, that's pretty clear cut; driving is a privilege, not a right.

What about if their truck had a bunch of anti-government bumper stickers on it, and they were flying a Gadsden flag from their truck bed, and the officer said to him during the traffic stop: "This is Biden country." Can the driver reasonably make the case on appeal that their free speech rights were violated?

Not following that one. Disney hasn’t committed a crime that they are being punished for but claiming they are being unfairly accused due to political retribution.

Why was RCID originally established? Why did the state give Disney a special district? It was done to bring Disney to FL and with it thousands and maybe millions of direct and indirect jobs. It was established to grow the economy. Why is the special district being dissolved? Because of spoken opposition to a bill by the company’s CEO. Did Disney’s actions to publicly oppose a bill the Governor supports cause economic harm to the state? Did it cause a decrease in jobs? The answer is a firm no on both. So in this case there‘s no way to justify this action other than it’s a way to attempt to cause harm to Disney and therefore stop their speaking out on political issues. The point is the why matters.

 

[Brian]

Yes! If the motivation is to influence speech then it’s a problem and needs to be tossed out. Awful criminals do get to walk because the government violated their rights and blew the case.

In this case though the driver wasn’t going above the speed limit. Those involved haven’t bothered with a valid pretense of wrong doing, just “we can” and it’s not clear that they’re center can.

The driver was going above the speed limit. That's my point. How can you prove that the state revoked their license for their political views (as expressed by the flag and bumper stickers), thus violating their free speech rights, instead of their history of speeding?

 

[mikejs78]

That's an obfuscation of the issue because the driver broke a law. There are other factors at play regarding whether the officer only pulled him over because of the stickers and not because of the speeding etc. but that makes it complicated.

A better hypothetical would be the state decides to revoke their license solely because of the bumper stickers and flag, and that's a pretty clear cut case that their free speech rights were violated (and also shows why the rights vs. privileges argument is nonsensical regarding free speech cases).

That's a very good point. If most people just had to pay a fine for speeding, but this driver had their license taken away because of the bumper stickers, then the retaliation case is clear even though it's a privilege being taken away (even if license revokation is an option under the law).

 

[UNCgolf]

The driver was going above the speed limit. That's my point. How can you prove that the state revoked their license for their political views (as expressed by the flag and bumper stickers), thus violating his free speech rights, instead of his history of speeding?

You can't without a bunch of additional information, but I don't see how it's relevant to the Disney case. There's no real parallel between the two fact patterns.

 

[mikejs78]

The driver was going above the speed limit. That's my point. How can you prove that the state revoked their license for their political views (as expressed by the flag and bumper stickers), thus violating their free speech rights, instead of their history of speeding?

Well in the Disney case it's clear. It's been said by the proponents of the bill that they passed it because Disney spoke out.