Ron DeSantis’ attack on Disney is obviously unconstitutional
At the request of Republican Gov. Ron DeSantis, the Florida Legislature voted this week to punish one of the world’s biggest producers of entertainment and pop culture because DeSantis and his fellow Florida Republicans disagreed with that producer’s First Amendment-protected speech. DeSantis signed the bill on Friday.
Florida’s decision to deprive Disney of a government benefit because, in DeSantis’ words, Disney expressed “woke” opinions and “attempted to attack me to further its woke agenda,” is unconstitutional. And this is not a close case.
As the Supreme Court said in Hartman v. Moore (2006), “official retaliation for protected speech” violates the Constitution [because] it threatens to interfere with the exercise of the protected right. How? ‘Or’ What the government retaliates against a person or company for expressing an opinion the government does not like – any official retaliation against someone for engaging in speech protected by the First Amendment is unconstitutional.
The dispute between DeSantis and Disney arose after Disney exposed Florida’s “Don’t Say Gay” law, an unconstitutional law that allows parents to sue their local school district if matters such as sexual orientation or gender identity are mentioned in class. The law is unconstitutional because it is drafted so vaguely that teachers cannot determine what types of teaching are allowed and what types are prohibited – although it remains to be seen whether a federal justice system dominated by people appointed by Republicans will invalidate the law.
Florida plans to deprive Disney of an extraordinarily unusual benefit it receives from the state. Walt Disney World is located in an area of nearly 40 square miles that Florida has designated as the “Reedy Creek Improvement District.” In this district, Disney essentially operates as the primary landowner and local government.
This offers Disney several benefits – among other things, if it wants to build a road or a new hotel, it can approve that project itself rather than going through the regular permitting process handled by local Florida governments, although that Disney must always comply with state building codes. This Reedy Creek arrangement also allows Disney to impose itself at a higher rate to pay for government services like sewer and a fire department – property taxes on non-Disney property owners in Florida’s Orange County could rise by up to 25% if Disney loses its ability to tax, according to an analysis.
Few Floridians, and indeed few large corporations, receive these kinds of benefits from their state. But the fact that Florida is only considering removing a special benefit from Disney — rather than, say, throwing its executives in jail — doesn’t mean it can punish Disney for its protected speech.
Think of it this way: Imagine that Jose owns a bar in Orlando. One day José tells the local newspaper that he doesn’t like Ron DeSantis and plans to vote for DeSantis’ opponent in the next election. The next day, the state sends him a letter informing him that “because you have denigrated our great governor, we are depriving your company of its liquor license”.
José does not have the constitutional right to sell alcohol for profit. And the overwhelming majority of businesses in Florida don’t have a license to do so. But if Florida revokes José’s liquor license because the government disapproves of José’s First Amendment protected speech, it violates the Constitution.
Disney’s ability to govern the Reedy Creek Improvement District is no different than Florida’s hypothetical decision to revoke José’s liquor license. If Florida has a legitimate reason to take that advantage away from Disney, the Constitution would most likely allow it to do so.
But no one can be punished for expressing a political opinion.
Florida’s best defense is to claim it’s punishing Disney for legitimate reasons
While existing law is abundantly clear that the government cannot sanction someone for disagreeing with their political views, First Amendment reprisal cases are often difficult to win because the plaintiff must prove that he was targeted because of his speech. As the Court explained in hartmannsuch a plaintiff “must demonstrate a causal connection between a defendant’s retaliatory animosity and subsequent injury in any sort of retaliatory action”.
But in this case, the evidence that Florida targeted Disney because of its protected speech is overwhelming. DeSantis called on Florida lawmakers to consider “terminating” Reedy Creek on Tuesday. On Wednesday, he sent a fundraising email to supporters in which he called out Disney for being “woke” and for personally criticizing it.
The email was explicit that DeSantis wants to punish Disney for his political views and because the governor thinks Disney is too close to the opposition party. “Disney and other woke corporations will no longer get away with peddling their unchecked pressure campaigns,” DeSantis said in his email. “If we’re going to keep the Democratic machine and its corporate lackeys accountable, we need to unite now.”
On Thursday, both houses of the Florida legislature passed retaliatory legislation against Disney. It’s also the same day that DeSantis Lt. Governor Jeanette Nunez told Newsmax’s Eric Bolling that the state could backtrack if Disney stops producing art that the Florida government deems objectionable.
Newsmax host Eric Bolling: “Is there an opportunity for Disney to change its mind and say we’re going to ignore this whole ‘woke’ agenda…and would the governor then say ‘d OK, you can keep your status but we’ll keep an eye on you now?”
Lieutenant Governor of Florida: “Of course!” pic.twitter.com/5E8UKGDVjF
— Justin Baragona (@justinbaragona) April 21, 2022
Disney, Florida’s second-highest-ranking government official, Bolling informed, is being targeted because he “changed what they really espouse.” Nunez complained that Disney used to uphold “family values” but now produces art that emphasizes subjects that Nunez deems “highly inappropriate”.
And yet, despite this and other evidence that the Florida government is retaliating against Disney for criticizing the governor’s policies and producing artwork that senior officials find objectionable, it’s possible the Republican-controlled federal court system gives DeSanti a free pass — just as he did when former President Donald Trump committed a similar First Amendment violation.
As a presidential candidate, Trump boasted of his plans to bring about a “total and complete blockage of Muslims entering the United States until the representatives of our country can figure out what’s going on.” Such a proposal violates First Amendment guarantees against religious discrimination.
After Trump was criticized for this unconstitutional proposal, he changed his rhetoric slightly. Instead of calling for an explicit ban on Muslim migration to the United States, Trump said he would disguise the ban by targeting countries with large Islamic populations. “People were so upset when I used the word Muslim,” Trump told NBC. Meet the press in 2016, “and I agree with that, because I’m talking about territory instead of Muslim.”
And yet, in Trump vs. Hawaii (2018), the Court’s Republican majority allowed Trump to ban travel from several Muslim-majority countries – even after Trump confessed his intention to give his Muslim ban a patina of legitimacy by presenting it as a ban to travel from certain foreign countries. The majority opinion in Hawaii leaned heavily on the fact that the Trump administration has offered a national security rationale for the policy that “says nothing about religion.”
The Trump administration’s proclamation announcing this travel ban, Chief Justice John Roberts wrote for the Court’s Republicans, “is expressly based on legitimate objectives: to prevent the entry of nationals who cannot be screened from adequately and encourage other nations to improve their practices”. And the Court accepted this national security rationale for the policy, despite considerable evidence that the Trump administration offered this rationale as a pretext to justify religious discrimination.
In the likely event that Disney raises a First Amendment challenge against Florida, Florida attorneys will no doubt tell a similar story to the one the Trump administration offered in Hawaii. While these lawyers can’t argue that abolishing Reedy Creek is justified by national security concerns, their brief will no doubt offer legitimate political justifications for punishing Disney — some of which may in fact be compelling. There are, after all, many legitimate reasons why a for-profit corporation should not be allowed to exercise governmental authority.
A Republican judiciary can support DeSantis’ attacks on Disney by saying the Florida government was motivated by legitimate concerns about giving Disney as much control over the Reedy Creek Improvement District as the Supreme Court did. thumbed its nose at the evidence in Hawaii that Trump was motivated by anti-Muslim animosity.
But, again, if the courts follow what the law says, it doesn’t matter if there are legitimate reasons why Florida could have chosen to deprive Disney of a valuable government benefit. What matters is whether Florida targeted Disney because it disapproves of the company’s First Amendment-protected speech.