Disney versus DeSantis: Does free speech cover corporate privileges?
It may call its theme park the Magic Kingdom, but the Walt Disney World resort in central Florida is not a monarchy. The Constitution rules over the property, as it does the rest of the United States 鈥� and that is why the company is suing the state of Florida and its governor, Ron DeSantis.
Continuing a yearlong battle between the Republican politician 鈥� and possible presidential candidate 鈥� and the global entertainment behemoth, the lawsuit raises several financial and contractual issues. But the case also examines and idea that strikes at the heart of American freedom: the right to criticize the government.
It鈥檚 been understood for decades that corporations, like individuals, have a constitutional right to free speech. In some areas, like political campaign finance, that has been controversial. But what has never been controversial (legally, at least) is the idea that you can鈥檛 be punished by the government for expressing a political viewpoint, whether you鈥檙e a person or a corporation.
Why We Wrote This
The ability to criticize the government without retaliation lies at the heart of the First Amendment. What happens when it鈥檚 a corporation doing the criticizing?
Florida argues that the case isn鈥檛 about Disney鈥檚 political views at all, but about a special tax status the company enjoys. Governor DeSantis has dismissed the lawsuit as 鈥減olitical,鈥� saying , 鈥渨e鈥檙e very confident on the law.鈥� The litigation could be resolved in various ways, including a settlement, and without addressing the First Amendment question.聽
But Disney isn鈥檛 the only company to claim government retaliation for political expression. The trend arguably began in 2019 when Republicans rode to the defense of Chick-fil-A being kicked out of a Texas airport. And the stakes for freedom of expression should be made clear.
鈥淭he government can鈥檛 offer a benefit and make the price of the benefit that you sacrifice your constitutional rights,鈥� says Gregory Magarian, a professor at the Washington University School of Law in St. Louis.
If Florida defeats Disney鈥檚 lawsuit, he adds, 鈥渋t really would have far-reaching consequences for not just the free speech of corporations, but the free speech of everyone.鈥�
Florida vs. its largest employer
The controversy began last year when Governor DeSantis signed into law the Parental Rights in Education Act, part of which prohibits the discussion of sexual orientation and gender identity in public schools. That law was expanded by the DeSantis administration this year to cover all the way through 12th grade.
The same day, Disney released a saying that its goal 鈥渁s a company is for this law to be repealed by the legislature or struck down in the courts.鈥� The day after, Governor DeSantis the company 鈥渃rossed the line,鈥� adding that the state was 鈥済oing to make sure we鈥檙e fighting back.鈥澛�
In particular, he criticized what he described as the state鈥檚 preferential treatment of Disney compared to other businesses. Disney is the largest single-site employer in Florida. Since construction of the resort began in 1967, a special tax district created by the state has effectively run the approximately 25,000-acre area as its own municipality.
This year, Governor DeSantis and the Republican-controlled legislature replaced the board of that district with handpicked successors. Last week, that new board voided Disney-friendly contracts agreed upon by the previous board. The governor has mused about opening a prison near the theme parks.
Disney鈥檚 73-page raises numerous issues. Florida has violated its contract with the company, it argues, and the state engaged in 鈥渁 targeted campaign of government retaliation 鈥� orchestrated at every step by Governor DeSantis.鈥�
鈥淚n America,鈥� Disney鈥檚 complaint concludes, 鈥済overnment cannot punish you for speaking your mind.鈥�
Why the Ku Klux Klan can adopt a highway
The U.S. Supreme Court has held for decades that the First Amendment protects against government retaliation. The court has even ruled that a state can鈥檛 exclude the Ku Klux Klan from .
鈥淰iewpoint neutrality is so deep and so important in First Amendment law it won鈥檛 prevent the Klan from participating,鈥� says Don Herzog, a professor at the University of Michigan Law School.
In 1996, the court ruled that a Kansas county violated the Constitution when it fired a trash hauler because he frequently criticized its county commissioners. That same year they found for an Illinois tow truck driver who lost a contract after backing the opponent of the mayor. As recently as 2016, the justices said a New Jersey city couldn鈥檛 demote a police officer because it thought he was supporting the opponent of the mayor.
Disney is only the latest corporation to be threatened with government retaliation. Chick-fil-A won its dispute with San Antonio after the city council voted to ban the restaurant from its airport because of its donations to anti-LGBTQ groups. Delta Airlines and Major League Baseball faced threats from Republican lawmakers in 2021 after speaking out against a restrictive Georgia voting law. Rep. Kevin McCarthy warned, on , that tech and telecommunications companies could 鈥渓os[e] their ability to operate in the United States鈥� if they complied with a request from the Jan. 6 committee to preserve certain records.
Florida argues that its recent actions around Disney鈥檚 contracts stem from a decision to no longer give the company special benefits. Governor DeSantis that Disney is free to oppose the classroom regulation law but 鈥渢hey are not free to force all of us to subsidize their activism.鈥澛�
The state may benefit from judicial convention in that regard. In First Amendment cases courts 鈥渁re usually reluctant to attribute a bad purpose to the government,鈥� says Professor Herzog.聽
But in this case, he adds, 鈥渢he government [has been] going out of its way to announce over and over again that it has a bad purpose.鈥�
If the Disney lawsuit does reach a courtroom (a big 鈥渋f鈥�), the company really should win, scholars say. Conservative writer David French concurred in a New York Times : 鈥淎 Disney defeat would represent a dangerous reversal in First Amendment jurisprudence and cast a pall of fear over private expression.鈥澛�
Corporate speech rights may differ, in certain contexts, from individual rights. But the protection against government retaliation is 鈥� or at least should be 鈥� universal, according to Professor Magarian.
鈥淐orporations don鈥檛 have autonomy, they don鈥檛 have consciences, let鈥檚 assume that鈥檚 true,鈥� he says. 鈥淭here鈥檚 still something undesirable and problematic about the government retaliating against speech, wherever that speech is coming from.鈥�
鈥淎ny time the government retaliates against any speaker,鈥� he adds, 鈥渢hat鈥檚 right at the heart of what we don鈥檛 want the government to do.鈥�
