So the previous tweet mentioned about a lawyer saying Disney has no 1A case is based on a interpretation not covered in the thread previously.
The argument is... from a case in MD
https://casetext.com/case/kensington-volunteer-fire-dept-inc-v-montgomery-cnty-md where some firefighters were suing that they were targets of retailiation when the local gov took away their funding because they opposed legislation from the gov. (Sound familiar??)
The cited appeals court case found that a legislative action was immune from questioning it's motive because it's the legislature is doing it's work and was 'facially valid'. This case relied upon United States v. O'Brien where SCOTUS ruled a law outlawing destruction of draft cards was valid, even though people were destroying draft cards as a form of protest and being arrested.
But from O'Brian they establish basically a test to quantify if the regulation is actually tailored to the government need instead of just retaliation...
[W]e think it clear, that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidential restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest
The Kensington case also highlights a difference between government action by decree of one (say.. someone acting as your boss) vs government action via legislative action. And basically saying when the action is from the legislature doing their normal duty, you can't question their motive. (my paraphrasing... you can read the opinion on your own, or the tweet's POV).
This at skin deep is very troublesome... it basically says as long as it's done via the legislative process, it can't be a 1A violation. Clearly you can't take that kind of interpretation unilaterally. One, the O'Brian case key words are that the action is constitutionally valid to start with... so it doesn't negate the idea a law itself can violate the 1A. But the distinction here in the Kensington case (and Disney) is they are talking about the motive behind the law, and if the action was retaliatory. This is what the lawyer is basing his dismissal of Disney's 1A argument over.
Now.. he's the 1A lawyer and I'm not.. but here is why I am not convinced by his conclusion.
The Kensington case doesn't universally give the legislation actions immunity, it says in that case the action was 'facially valid'. It was valid because they later elaborate how the budget change (the action in this case) actually had valid reasoning for things BESIDES just targeting the group in question. Basically.. the budget passed was arguably valid for reasons beyond the 1A retaliation claims.
But this is where I think the Disney case differs... the same arguments of why the Kensington budget moves were validated by motives BESIDES the 1A retaliation... those same kind of other "facially valid" motivations
are lacking in the laws passed by the FL legislature. I believe Disney can argue in both the criteria from O'Brian and the judgement from Kensington... that the changes are in fact essentially solely retalitory and not "facially valid" for other reasons. The timelines, the statements made about why the bills were introduced, when they were introduced, the scope of them, their design vs other comparable entities/districts.. I think Disney can defeat the "facially valid" argument that would otherwise give the state's action to change RCID immunity.
What say you?
