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):
