Thread by @dilanesper

OK, #appellatetwitter fans, let's walk you through Kensington Volunteer Fire Department v. Montgomery County, and why a lot of legal experts on Twitter may be wrong about the constitutionality of DeSantis' Revenge Bill. 1/

casetext.com/case/kensingto…

Some caveats:

1. As should be obvious from me calling it a Revenge Bill, I think as a policy matter that what DeSantis is doing is awful. I don't think governors should take legislative revenge on companies for saying things the government doesn't like. 2/

2. Kensington, as you will see, is a 4th Circuit case. There isn't an on point 11th Circuit case. So maybe the 11th Circuit won't follow Kensington. (Note, however, that Kensington relies on US v. O'Brien, a US Supreme Court case that is good law.) 3/

3. There are at least possible grounds to distinguish Kensington. I will cover them. However, this is a situation where Twitter requires some nuance (which I am sure I won't get). Just because a case is theoretically distinguishable doesn't mean it is inapplicable. 4/

Courts follow cases that arose on different facts all the time. Many cases, including, for instance, O'Brien itself, state general legal rules. They aren't 1 ride only tickets, but apply the rules for a whole area of cases. This is especially true of SCOTUS opinions. 5/

So, for instance, your local police department can't decide not to give you Miranda warning in a burglary case because the Miranda decision involved a kidnapping. That's not how "distinguishing cases" works. 6/

With all that out of the way, let's get to the facts of Kensington. 7/

In Kensington, the County had a budget shortfall and sponsored an "ambulance fee", i.e., a tax on ambulances, to close the shortfall. The volunteer firefighters of Kensington vocally opposed the ambulance tax. 8/

When the ambulance tax went down to defeat, the County officials blamed the volunteer firefighters and took their revenge, eliminating the budget line-item from previous years that paid for 20 volunteer firefighters. 9/

The volunteer firefighters sued, and the suit was dismissed. The 4th Circuit affirmed the dismissal in a published opinion. 10/

The 4th Circuit first held that when the government enacts legislation that is "facially valid" (i.e., that does not itself contain a speech restriction), courts are powerless to inquire into the motive of the statute, citing the O'Brien case. 11/

The O'Brien case is a very famous case. It involved a statute prohibiting the destruction of draft cards, which was challenged by a draft card burner protesting the Vietnam War. The Supreme Court ruled for the government in that case. 12/

SCOTUS held that because the government had legitimate administrative reasons to require citizens to retain their selective service cards, it did not matter that the statute was actually enacted for the purpose of criminalizing a mode of protest. 13/

SCOTUS was explicit about this: "this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive". O'Brien, in turn, cites 1904 and 1931 cases (the latter a Brandeis opinion) in support of this proposition. 14/

Applying O'Brien, the Kensington Court holds that because the County has the power to cut its budget and eliminate the compensation for volunteer firefighters, its motive in doing so cannot be considered. 15/

The firefighters made a counter-argument: they cited cases where mayors laid off employees or transferred them to punish them for exercising First Amendment rights. The court rejected this. 16/

The court said those cases did not involve "legislative" acts, a word the Kensington court italicized to indicate its importance. Legislation, the court implied, was different from an official taking action against an employee. 17/

Next, the firefighters argued that their claim could go forward under retaliation caselaw. The retaliation doctrine allows employees and contractors to sue governments who cancel their contracts in response to the exercise of First Amendment rights. 18/

The problem here was the firefighters aren't employees or contractors of the County. They were simply indirect recipients of an appropriation. The budget was cut, and as a result, the fire departments, not having money any more, terminated their employment. 19/

So the argument that DeSantis can make is as follows. Under O'Brien, the State of Florida has every right to terminate or disempower any improvement district anywhere in the state. And its motive for doing so is irrelevant and can't create a First Amendment violation. 20/

Nor can Disney make out a retaliation claim because it is neither an employee nor a government contractor. It is simply the recipient of some favored treatment in the form of a special governmental structure. 21/

Now as promised, there ARE grounds to distinguish Kensington if someone wants to. First, the budget in Kensington had some other line items that were cut as well as the firefighters. So the Court held this showed general applicability. 22/

Disney can argue that since the Reedy Creek Improvement District was a sweetheart deal created ONLY to benefit Disney, the legislation to repeal it was not generally applicable. That argument might work- but the lawyers would have to make Disney look bad in making it. 23/

The other thing is that on the retaliation claim, the Kensington court distinguished one of the contractor cases, the Umbehr case, by noting that in Umbehr the county commission terminated only the contractor's contract, and there was no generally applicable budget cuts. 24/

So, Disney can argue that they are more akin to the contractor in Umbehr than they are to the firefighters in Kensington. The thing is, they really aren't. Disney isn't a contractor. 25/

So at the end of the day, the only things Disney has are that (1) since the original RCID was created solely for Disney, the repeal is targeted solely at Disney, and (2) the retaliation analysis in Kensington is 4th Circuit law that may not be applicable in Florida. 26/

And I don't see how Disney gets around O'Brien on legislative motive.

Overall, I'd say that it's more likely than not that the Revenge Bill will be upheld. And that's before we get into the fact that the federal courts are pretty conservative right now. 27/

Again, I want to emphasize, my true distress here is with the Twitter Legal Hot Take. Just because something "feels" unconstitutional doesn't mean it is. And NOBODY should be out there saying "that's flagrantly unconstitutional" without having a controlling case in mind. End/

@threadreaderapp please unroll