I put up some tentative thoughts on the subject Friday, and Prof. Dorf (DorfOnLaw) did as well today. He leans in favor of concluding that the repeal is unconstitutional (because it is in retaliation for Disney’s political activity), but agrees that this is a difficult question. If you’re interested in the controversy, you should definitely check out Prof. Dorf’s post; here’s an excerpt, responding to my argument that the retaliation here is not just against Disney as corporation, but as Disney operating a local government:
[I]n some respects Disney is a local government. So let’s try to construct an analogy that’s a bit different from the ones Professor Volokh gives—in which government officials lose their special privileges (like a member of Congress losing the chairmanship of a committee) in response to political statements or actions out of step with leadership.
Consider Bridgegate. The Democratic mayor of a municipality did not support the state’s Republican governor’s re-election bid; in response, people working for the governor retaliated against the municipality. Let’s assume that the mayor speaks for the municipality. After all, he was elected. And he clearly exercises political power over the municipality—probably more local government authority than Disney has. Even so, when the governor’s staff punished the municipality, it seems that they were punishing it for speech unrelated to the political power that the mayor and municipality exercise.
But wait. What about Professor Volokh’s second observation? In the actual Bridgegate, the retaliation took the form of needlessly creating a traffic jam and endangering public safety; in that sense the governor’s staff punished Fort Lee by making the municipality worse off than other New Jersey municipalities. Might the case look different if instead the governor’s staff had retaliated by withdrawing some special benefit that Fort Lee had previously enjoyed?
Maybe, but I’m not so sure. That view sounds a bit too much like Holmes’s no-right-to-be-a-policeman. We can think of a government job—even a low-ranking one—as a “special” benefit in the sense that most people aren’t employed by the government. The relevant question for determining whether the loss of a benefit for political speech implicates the First Amendment strikes me as the one that the Court asks in the employee speech cases: does the government have an interest in controlling employees’ speech that goes beyond its interest in controlling the general public’s speech?
Where the speech relates to the official duties, the answer will generally be yes. And with respect to political appointees, the job is inherently political, so patronage of some sort is inevitable. But where the speech of an individual, local government, or corporation with some special governmental authority is on a matter wholly unrelated to the exercise of the governmental authority that individual, locality, or corporation possesses, the interest in retaliating in response is no different from the (nonexistent) interest in retaliating against ordinary citizens for speaking out on matters of public concern.
I also thought I’d add something that was sent to me and Prof. Dorf by an extremely knowledgeable appellate lawyer:
[Prof. Dorf writes:]
Where the speech relates to the official duties, the answer will generally be yes. And with respect to political appointees, the job is inherently political, so patronage of some sort is inevitable. But where the speech of an individual, local government, or corporation with some special governmental authority is on a matter wholly unrelated to the exercise of the governmental authority that individual, locality, or corporation possesses, the interest in retaliating in response is no different from the (nonexistent) interest in retaliating against ordinary citizens for speaking out on matters of public concern.
[But f]or inherently political appointees, even speech that is “wholly unrelated to the exercise of the governmental authority” can be the basis for removal. And the head of a special tax district seems like an inherently political appointee (or a high-level policymaker, to use the terminology from the caselaw), since it directly exercises sovereign power and likely has at least as much, if not more, policymaking discretion within its sphere than most officials exempt from Rutan/Pickering [the Supreme Court cases that generally limit the government’s power to discriminate against most employees, at least lower-level ones, based on their speech or political affiliation].
Put differently, to use your Bridgegate hypo, if in NJ, the Governor appointed the mayor of Fort Lee and had power to fire him but otherwise had no control over his actions, isn’t it completely obvious that the Governor could have fired the mayor for not supporting him, even though supporting the governor was wholly unrelated to the mayor’s powers in Fort Lee? …
[T]his seems like one of the areas where the greater really does include the lesser. If it is consistent with the 1A for state law to permit the NJ governor to fire the Fort Lee mayor based on his speech, then it’s hard to see why the 1A should care if the NJ governor merely limits the powers of the Fort Lee mayor (or if the governor violated state law in so doing). From the perspective of the 1A, firing the Fort Lee mayor will chill his speech far more than curtailing his powers—although the lesser sanction may hurt the public more than just replacing the mayor, that’s not a 1A speech interest. And especially given all that, it does seem to me that disestablishing a special jurisdictional district is the equivalent of firing the district ….
For the record, I might agree with [Prof. Dorf] in the context of the federal govt retaliating against a state based on the speech of the state or its officials. But I don’t think any such principle should extend to a state’s regulation of local subjurisdictions/offices that exist only at the state’s sufferance.
Prof. Dorf, in the exchange with the lawyer, added:
I very much agree that the high-level policymakers line of cases provides the best grounds for the conclusion that the withdrawal here would be valid, but for the reasons that both Eugene and I identify, I also think that there are enough disanalogies to make the question an open one….
I do think there is a potential 1A problem with punishing a jurisdiction (including potentially withdrawing a special benefit) in retaliation for a government official’s speech, even if the official could be dismissed from the position. My reasons are related to the reasons I gave for thinking there could be a 1A violation with the repeal of SALT deductibility in the column I linked in the blog post. Again, I recognize various countervailing factors. My main contention is that the question is open.
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