The Volokh Conspiracy
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I blogged about this controversy Friday, and then quoted Prof. Michael Dorf's and an experienced appellate lawyer's take on Monday. Another lawyer, Dilan Esper, had a Twitter thread pointing to Kensington Volunteer Fire Department v. Montgomery County (4th Cir. 2012), which suggests that the legislature's motivation for repealing the special government district run by Disney (which seems to be disapproval of Disney's speech) is irrelevant:
A group of local volunteer fire and rescue departments ("LFRDs") and several of their former administrative employees … brought suit … contending that Defendants eliminated part of Plaintiffs' funding in retaliation for Plaintiffs' opposition to legislation supported by Defendants.
The district court dismissed Plaintiffs' complaint, declining to inquire into Defendants' alleged illicit motive behind an otherwise facially valid budgetary enactment … We affirm.
The district court's decision relied on U.S. v. O'Brien (1968), in which the Supreme Court declined to "strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive."
O'Brien considered a First Amendment challenge to a federal statute that penalized the destruction of draft cards. Noting that the law did not facially abridge speech, the Court rejected an argument that the law was nonetheless unconstitutional because its purpose was to suppress free speech. The Court warned that it was a "hazardous matter" to inquire into legislative motives because "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork." Accordingly, the Court "decline[d] to void [legislation] essentially on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it." …
As Plaintiffs concede, the budget is facially valid. And in alleging that Defendants retaliated against them by eliminating funding for the LFRD administrative positions, Plaintiffs challenge Defendants' legislative action. Plaintiffs, however, rely for support on cases in which the alleged retaliation was accomplished via executive action….
In trying economic times, and in response to the loss of $14.1 million in projected revenue following the defeat of the ambulance fee legislation, the County passed a budget that called for difficult cuts felt by many. As the district court concluded "there is no doubt that Defendants had the authority to pass the budget savings plan, and it appears to be a thoroughly ordinary cost savings measure." Confronted with such a facially constitutional budgetary enactment, O'Brien instructs that we not strike it down "on the basis of an alleged illicit legislative motive,"
I appreciate Mr. Esper's argument (which goes into this in considerable detail, and also discusses some possible distinctions between this case and Kensington); but I'm just not sure that First Amendment law really does preclude inquiries into legislative intent. Consider this summary of the law from Reed v. Town of Gilbert (2015):
Although "a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary." Turner Broadcasting System, Inc. v. FCC (1994).
That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law's justification or purpose. See, e.g., Sorrell v. IMS Health, Inc. (2011) (statute was content based "on its face," and there was also evidence of an impermissible legislative motive); U.S. v. Eichman (1990) ("Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression"); Members of City Council of Los Angeles v. Taxpayers for Vincent (1984) ("The text of the ordinance is neutral," and "there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v. Community for Creative Non-Violence (1984) (requiring that a facially content-neutral ban on camping must be "justified without reference to the content of the regulated speech"); United States v. O'Brien (1968) (noting that the statute "on its face deals with conduct having no connection with speech," but examining whether the "the governmental interest is unrelated to the suppression of free expression"). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny….
Ward [v. Rock Against Racism] (1989) had nothing to say about facially content-based restrictions because it involved a facially content-neutral ban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. In that context, we looked to governmental motive, including whether the government had regulated speech "because of disagreement" with its message, and whether the regulation was "'justified without reference to the content of the speech.'"
This is one reason why I think the issue is difficult: One can indeed argue that the legislative action was unconstitutionally motivated by Disney's past speech, though one can also argue (among other things) that denial of government power (rather than just, say, a tax exemption or a trash hauling contract) based on the powerholder's speech is constitutional, whether the powerholder is (say) an appointed executive official or a corporation that is allowed to run a special government district.
Here is Mr. Esper's response in our e-mail exchange; I don't think it quite disposes of the issue, but I thought I'd pass it along:
My attempt to rationalize the cases, which are indeed all over the place, would be this—I think O'Brien involved a statute that on its face had nothing to do with speech at all. It was a prohibition on destroying or mutilating your draft card. And the government had an interest, however thin it was, in requiring people to keep their draft cards. So the only chance that the defendant really had to overturn the statute was if there's a doctrine that says "even though this is, on its face, a prohibition on the mutilation of an important government form, if you can show that the real purpose of this wasn't to administer the draft but rather to target a popular form of war protest, you win your case". And SCOTUS said you can't do that.
To put it another way, perhaps more clearly, O'Brien is an expressive conduct case. And one of the things that can happen in expressive conduct cases is that the government can ban or regulate the category of conduct for some non-speech related reason. For instance, if a county prohibits its citizens from burning anything or starting any fires in an area of the county with a lot of trees and kindling, we all understand that this prohibition could be enforced against flag burners or draft card burners. And what O'Brien adds is that even if the reason the county passed that ordinance was that people were burning flags out there to protest the government, it wouldn't matter. It's a law that doesn't say anything about speech at all; it just prohibits starting fires. The government can do this, because it has a legitimate interest in the prohibition of fire-starting in a hazardous area, even if they really secretly or openly want to stop flag burning.
And the difference with Reed is Reed is a speech case, not an expressive conduct case. It is a sign regulation, and signs are speech. So now we have to determine whether the sign regulation is content based in how it differentiates some speech from other speech, and Reed says it was. Reagan National Advertising, which just came down, says that another sign regulation that differentiates some speech from other speech wasn't content based. An interesting hypothetical would be what would happen if a municipality enacted an off premises sign ban (the type approved in Reagan National) to target a specific speaker who was dotting the community with off premises signs- would that be considered content based? I don't know. But at the very least, the law seems to be that a speech-suppressive purpose can be considered in determining whether a speech regulation is content based.
This analysis at least fits with the other cases you cite. Sorrell involved the disclosure of medical records—speech. Taxpayers for Vincent was a signage case. Hill was about abortion protest—and upheld the regulation anyway.
As for Ward and Clark, they upheld the regulations, both of which were facially directed at conduct rather than speech. Ward was about sound volume—didn't matter what was playing at that volume and whether it had any expressive content at all. Clark was about sleeping in the park—again, didn't matter why people were sleeping there, even though the government may have been targeting the homeless protesters.
The one case that you could argue is an outlier is Eichman, where the statute just prohibited the burning of a flag for any reason. Perhaps Eichman is a limitation on the O'Brien principle. But perhaps not, because unlike in O'Brien, there was no legitimate reason for the government to be concerned with flag burning anyway. The only reason for the government to worry specifically about burning flags was because they were a form of protest.
So what I think the cases really stand for is: (1) if a statute/ordinance specifically targets speech on its face, you can consider legislative intent when determining content neutrality (Reed); (2) if a statute/ordinance facially targets conduct but there is no legitimate governmental interest in regulating the specific conduct targeted, you can also consider legislative intent when determining content neutrality (Eichman); but (3) if a statute/ordinance facially targets conduct and there is a legitimate governmental interest in regulating the specific conduct targeted, O'Brien applies and legislative intent is irrelevant.
I'm sure that doesn't fit every case out there. But it seems like a plausible way of putting the cases together.