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

ParentsOf4

Well-Known Member
@ParentsOf4 posted a dissent earlier from Scalia/Thomas where they disagreed with a first amendment ruling because they believe essentially in levels of free speech and that the government should determine what speech is appropriate. See the example below. So how is that related to this? If the same logic is applied, but instead of white supremicist group you sub in woke corporation you can see how dangerous this becomes when the government can decide which speech is free. I’m not saying the courts will rule this way, but if they did it would significantly change how free speech works for corporations.
In O'Hare Truck Service v the City of Northlake, the Court's two most stanch conservatives (Scalia and Thomas) argued that Freedom of Speach protections are limited:

The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition based exceptions, such as obscenity and "fighting words") without going to jail or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes.​

In Citizens United, the Court's four most liberal justices (Stevens, Sotomayor, Ginsburg, and Breyer) argued that Freedom of Speach protections can be based on the "speaker's identity":

“Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the First Amendment. WRTL, 551 U. S., at 482 (opinion of ROBERTS, C. J.). The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.​

We have both liberal and conservative justices arguing that Freedom of Speach rights are not absolute, that the Constitution provides only limited protection. Note that both cases involve corporations.

Citizens United is a 5-4 decision, and most of us are old enough to remember that it was (and remains) highly controversial. The news media in particular viciously attacked the ruling.

The current Court has not shied away from overturning precedent they believe was decided wrongly. Indeed, during his confirmation process, there was much hope that Gorsuch would vote to overturn Citizens United, if given the opportunity.

As you note, a decision from the Supreme Court could "significantly change how free speech works for corporations."
 

RamblinWreck

Well-Known Member
In O'Hare Truck Service v the City of Northlake, the Court's two most stanch conservatives (Scalia and Thomas) argued that Freedom of Speach protections are limited:

The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition based exceptions, such as obscenity and "fighting words") without going to jail or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes.​

In Citizens United, the Court's four most liberal justices (Stevens, Sotomayor, Ginsburg, and Breyer) argued that Freedom of Speach protections can be based on the "speaker's identity":

“Our jurisprudence over the past 216 years has rejected an absolutist interpretation” of the First Amendment. WRTL, 551 U. S., at 482 (opinion of ROBERTS, C. J.). The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Apart perhaps from measures designed to protect the press, that text might seem to permit no distinctions of any kind. Yet in a variety of contexts, we have held that speech can be regulated differentially on account of the speaker’s identity, when identity is understood in categorical or institutional terms. The Government routinely places special restrictions on the speech rights of students, prisoners, members of the Armed Forces, foreigners, and its own employees.​

We have both liberal and conservative justices arguing that Freedom of Speach rights are not absolute, that the Constitution provides only limited protection. Note that both cases involve corporations.

Citizens United is a 5-4 decision, and most of us are old enough to remember that it was (and remains) highly controversial. The news media in particular viciously attacked the ruling.

The current Court has not shied away from overturning precedent they believe was decided wrongly. Indeed, during his confirmation process, there was much hope that Gorsuch would vote to overturn Citizens United, if given the opportunity.

As you note, a decision from the Supreme Court could "significantly change how free speech works for corporations."
I wasn’t paying much attention back then, but I do recall it.

Wasn’t a significant amount of the controversy less to do with whether or not speech was protected, but more to do with whether or not money was considered speech?
 

Brian

Well-Known Member
Wasn’t a significant amount of the controversy less to do with whether or not speech was protected, but more to do with whether or not money was considered speech?
Yes, which is why I don't think the RCID case is the right one for the justices to overturn Citizens. The basis for RCID is government retaliation against a corporation for protected speech, while Citizens was campaign finance contributions made by corporations is protected speech.
 

ParentsOf4

Well-Known Member
I wasn’t paying much attention back then, but I do recall it.

Wasn’t a significant amount of the controversy less to do with whether or not speech was protected, but more to do with whether or not money was considered speech?
Criticism of Citizens United is not limited to one area. Many have attacked it for many reasons.

Within the context of the dissent, opposition can be broadly grouped into two categories:
  1. Money used for corruption (or the appearance of corruption).
  2. The disproportionate power of corporations to influence the political process.
The second one in particular applies to Disney. As Stevens wrote in his dissent:

“‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication of popular support for the corporation’s political ideas.’” ... “‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”​
It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.
 

mikejs78

Premium Member
Criticism of Citizens United is not limited to one area. Many have attacked it for many reasons.

Within the context of the dissent, opposition can be broadly grouped into two categories:
  1. Money used for corruption (or the appearance of corruption).
  2. The disproportionate power of corporations to influence the political process.
The second one in particular applies to Disney. As Stevens wrote in his dissent:

“‘[T]he resources in the treasury of a business corporation,’” furthermore, “‘are not an indication of popular support for the corporation’s political ideas.’” ... “‘They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.’”​
It might also be added that corporations have no consciences, no beliefs, no feelings, no thoughts, no desires. Corporations help structure and facilitate the activities of human beings, to be sure, and their “personhood” often serves as a useful legal fiction. But they are not themselves members of “We the People” by whom and for whom our Constitution was established.

Yes but Stevens also went on to say

We have long since held that
corporations are covered by the First Amendment, and
many legal scholars have long since rejected the conces-
sion theory of the corporation.
.

His dissent was focused almost exclusively around money and electioneering. In fact, he references back to Bellotti to support his argument, and speaks favorably about that decision. So I think the progressive justices position on this is more nuanced than you're indicating here.
 

ParentsOf4

Well-Known Member
Yes but Stevens also went on to say

His dissent was focused almost exclusively around money and electioneering. In fact, he references back to Bellotti to support his argument, and speaks favorably about that decision. So I think the progressive justices position on this is more nuanced than you're indicating here.
Please understand that I don't think any of the three liberal justices would rule against Disney, if the case made it that far. Instead, I am merely pointing out that there are opinions that conservative justices could point to, if they decided against Disney.

In his dissent, Stevens wrote in Citizens United (2010):

Austin recognized that there are substantial reasons why a legislature might conclude that unregulated general treasury expenditures will give corporations “unfai[r] influence” in the electoral process, 494 U. S., at 660, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match. The structure of a business corporation, furthermore, draws a line between the corporation’s economic interests and the political preferences of the individuals associated with the corporation; the corporation must engage the electoral process with the aim “to enhance the profitability of the company, no matter how persuasive the arguments for a broader or conflicting set of priorities,” Brief for American Independent Business Alliance as Amicus Curiae 11; see also ALI, Principles of Corporate Governance: Analysis and Recommendations §2.01(a), p. 55 (1992) (“[A] corporation . . . should have as its objective the conduct of business activities with a view to enhancing corporate profit and shareholder gain”). In a state election such as the one at issue in Austin, the interests of nonresident corporations may be fundamentally adverse to the interests of local voters.

Of particular interest is the distinction Stevens makes between "the interests of nonresident corporations" and "the interests of local voters", a sentiment that DeSantis has echoed in his attack on Disney.

In his dissent, Stevens also draws a distinction between small nonprofit corporations and large for-profit corporations, with their ability "to amass and deploy financial resources on a scale few natural persons can match".

Disney certainly intends to spend corporate funds to fight the "Don't Say Gay" Act. When Chapek spoke, it was not as a private citizen; it was as the head of a multibillion dollar for-profit corporation. He said "Our goal as a company is for this law to be repealed by the legislature or struck down in the courts". Clearly, he intended to use company money to fight the bill.

Stevens also notes in Citizens United:

Postratification practice bolsters the conclusion that the First Amendment, “as originally understood,” ante, at 37, did not give corporations political speech rights on a par with the rights of individuals. Well into the modern era of general incorporation statutes, “[t]he common law was generally interpreted as prohibiting corporate political participation,” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 819 (1978) (White, J., dissenting), and this Court did not recognize any First Amendment protections for corporations until the middle part of the 20th century, see ante, at 25–26 (listing cases).​

At the time that Bellotti (another 5-4 ruling) was decided in 1978, more than 30 states had laws limiting corporate political participation.

Note that the precedent cited by the conservative majority in Citizens United involves fines, taxes, nonprofits, or commercial speech. (Simplistically, "commercial speech" is the right of a company to advertise to make a profit.) Corporate commercial speech has been protected for some time. However, protection for for-profit corporate political speech is relatively new.

Also note that nonprofit corporation political speech has been protected since at least since NAACP v. Button in 1963. But the NAACP is a nonprofit, and this returns to Stevens point that First Speech rights can be limited based on the "speaker's identity". The distinction is that when someone donates to a nonprofit advocacy group, they are donating to that specific cause. But when a for-profit corporation uses its general funds to advocate for a position, they are using funds completely unrelated to the cause. The for-profit corporation's ability to accumulate vast sums makes them unfairly powerful. (BTW, Citizens United is a nonprofit.)

Bellotti (1978) generally is viewed as the first decision protecting for-profit corporate political speech, and that was decided by the Burger Court, a court whose decisions have been overruled multiple times by the current Court.

This returns us to Scalia's dissenting opinion in O'Hare Truck Service (1996):

The First Amendment guarantees that you and I can say and believe whatever we like (subject to a few tradition based exceptions, such as obscenity and "fighting words") without going to jail or being fined. What it ought to guarantee beyond that is not at all the simple question the Court assumes.​

To date, none of the laws passed by the Florida legislature involve jail or fines. Nor do they involve commercial speech. Nor is Disney a nonprofit.

In a case before the Supreme Court, expect the Court's two most conservative justices (Thomas and Alito) to closely follow Scalia's dissent in O'Hare Truck Service. None of the other justices were on the Supreme Court at the time of O'Hare Truck Service.

Might three additional conservative Supreme Court justices join Thomas and Alito? They very well might.
 
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Cliff

Well-Known Member
All of this doomsday, WWIII talk is all just an over reaction. No...the sky is NOT falling. Disney will learn to live under the Central Florida Tourism Oversight (whatever it's new name is).....just like the way Disneyland has learned to live with the city of Anaheim.

Yes....Disney gets REALL angry and upset when Anaheim tells them "no!". Yes...Disney gets furious when the sate of California tells them "no!" too. But, Disney eventually swallows their pride and learns how to be plenty profitable in the face of public oversight.

Disney has to deal with "no" in every place they have operations. France, China, Hong Kong, Florida, Japan and California. Yes...Disney hates to hear the word "no!" and they always gasp "how dare you tell us that?"

In Florida....Disney will be FINE! They will just ADAPT public oversight the same way they do everywhere else.
 

mikejs78

Premium Member
there is case law that conservative justices could point to, if they decided against Disney.

You are pointing to dissents, which aren't considered case law. Again, though, Stevens dissent is geared against corporate *money* expenditures in *elections*. That's very different than making a statement about a bill.. I imagine that must justices who would be OK with legal limitations on Disney *spending* on lobbying against the bill would be opposed to limits on *statements*, which are the purist form of speech imaginable.

Another point of difference in most of the case law is that it has to do with laws on the books that regulate corporate expenditures. Here, we don't have a law on the books that prohibited Disney's statement. There was no FL law that said that Disney couldn't speak out. Everything was done after the fact. And I doubt the conservatives would want to overturn Citizens, as that case is something that is very important to their donor class.

The big question mark for me is still if the justices will want to make the leap to legislative intent. I think the three progressives will - not sure if they can get two of the Roberts/Kavanaugh/Gorsuch/Barrett to join them. Of course, by the time this case reaches the court, if it does, it's possible the makeup of the court will have changed.

Disney certainly intends to spend corporate funds to fight the "Don't Say Gay" Act.

That's irrelevant because it didn't actually happen.

All of this doomsday, WWIII talk is all just an over reaction. No...the sky is NOT falling. Disney will learn to live under the Central Florida Tourism Oversight (whatever it's new name is).....just like the way Disneyland has learned to live with the city of Anaheim.

Yes....Disney gets REALL angry and upset when Anaheim tells them "no!". Yes...Disney gets furious when the sate of California tells them "no!" too. But, Disney eventually swallows their pride and learns how to be plenty profitable in the face of public oversight.

Disney has to deal with "no" in every place they have operations. France, China, Hong Kong, Florida, Japan and California. Yes...Disney hates to hear the word "no!" and they always gasp "how dare you tell us that?"

In Florida....Disney will be FINE! They will just ADAPT public oversight the same way they do everywhere else.

Disney World is a completely different beast than Disneyland or any other park. The infra needs of Disney World are orders of magnitude higher than DL. Besides, the new board is intent on *punishing* Disney, not just taking oversight.

And regardless of that, no one should be comfortable about the government retaliating against anyone for their constitutionally protected speech, whether or not one agrees with that speech.
 

JAB

Well-Known Member
All of this doomsday, WWIII talk is all just an over reaction. No...the sky is NOT falling. Disney will learn to live under the Central Florida Tourism Oversight (whatever it's new name is).....just like the way Disneyland has learned to live with the city of Anaheim.

Yes....Disney gets REALL angry and upset when Anaheim tells them "no!". Yes...Disney gets furious when the sate of California tells them "no!" too. But, Disney eventually swallows their pride and learns how to be plenty profitable in the face of public oversight.

Disney has to deal with "no" in every place they have operations. France, China, Hong Kong, Florida, Japan and California. Yes...Disney hates to hear the word "no!" and they always gasp "how dare you tell us that?"

In Florida....Disney will be FINE! They will just ADAPT public oversight the same way they do everywhere else.
If it were just about the state changing the regulations for legitimate oversight reasons that applied to everyone, I might agree with you. However, the governor and at least one member of the board have publicly admitted that they targeted Disney and planned to use control of the district as leverage against TWDC to influence what content the company made. It's not about simple government oversight.
 

mikejs78

Premium Member
You are pointing to dissents, which aren't considered case law. Again, though, Stevens dissent is geared against corporate *money* expenditures in *elections*. That's very different than making a statement about a bill.. I imagine that must justices who would be OK with legal limitations on Disney *spending* on lobbying against the bill would be opposed to limits on *statements*, which are the purist form of speech imaginable.

Another point of difference in most of the case law is that it has to do with laws on the books that regulate corporate expenditures. Here, we don't have a law on the books that prohibited Disney's statement. There was no FL law that said that Disney couldn't speak out. Everything was done after the fact. And I doubt the conservatives would want to overturn Citizens, as that case is something that is very important to their donor class.

The big question mark for me is still if the justices will want to make the leap to legislative intent. I think the three progressives will - not sure if they can get two of the Roberts/Kavanaugh/Gorsuch/Barrett to join them. Of course, by the time this case reaches the court, if it does, it's possible the makeup of the court will have changed.



That's irrelevant because it didn't actually happen.



Disney World is a completely different beast than Disneyland or any other park. The infra needs of Disney World are orders of magnitude higher than DL. Besides, the new board is intent on *punishing* Disney, not just taking oversight.

And regardless of that, no one should be comfortable about the government retaliating against anyone for their constitutionally protected speech, whether or not one agrees with that speech.
Just to add, I think even if the courts uphold the law because of the legislative intent issue, I think they rule in favor of Disney against the governor's and the board's application of the law. There's no question of intent there.
 

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