Disney is not the only storied American institution that right-wing politicians may face in their latest salvo against “woke” culture: According to some expert lawyers, they might come up against the Constitution as well.
While some First Amendment lawyers say that a new Florida law revoking The Walt Disney Co.’s special tax status as a result of free speech made by the corporation violates the First Amendment’s protections against retaliation, other experts said the unique circumstances complicate the case.
Florida lawmakers passed a bill Thursday to revoke Disney’s special tax status, which has effectively allowed the entertainment giant to self-govern its Orlando theme park, Disney World, for half a century. The new law came after Disney paused political donations and criticized a controversial recent measure, dubbed the “Don’t Say Gay” bill by critics, pushed by Republican Gov. Ron DeSantis.
That bill, signed into law in March and set to take effect July 1, bans discussion about sexual orientation and gender identity in classrooms for children in kindergarten through the third grade. DeSantis, who pushed for the Disney bill to be brought up in a special legislative session, signed the measure ending the corporation’s special tax status into law Friday.
The law is already receiving a raft of criticism — including what experts said was a transgression of constitutional free speech protections. It “absolutely“ constitutes a violation of the First Amendment for retaliation, media and First Amendment attorney Rachel Fugate, a partner at the Florida-based firm Shullman Fugate, told The Intercept.
“I don’t think it would be that hard to prove in court at all,” Fugate said. “Our governor and our Legislature were very clear on the reason behind it. And it was because Disney didn’t support the legislation and spoke out against it — specifically because of that. There is no if, and, or but about why they’re doing this.”
“I don’t think it would be that hard to prove in court at all. Our governor and our Legislature were very clear on the reason behind it.”
The fight over the “Don’t Say Gay” law is the latest issue of the day in the chaotic debate about free speech and “woke” culture. But in a role reversal, the right-wing politicians who purport to defend free speech against attacks by so-called censors are in this case themselves attacking Disney for its First Amendment-protected actions.
The First Amendment protects free speech and bars the government from retaliating in response to protected activity. Those protections extend beyond basic rights, like the right to protest, and into privileges: A government may not revoke a privilege in response to First Amendment-protected criticism.
“You can have your opinion on whether Disney’s entitled to those special privileges,” said Fugate. “But regardless of your opinion on the underlying merits, it certainly shouldn’t be revoked because they disagreed with their governor.”
Other First Amendment experts said the revocation of the privilege might not stand up as a retaliation claim because the privilege bestowed on Disney was not a typical benefit. “It gave Disney political power,” said Eugene Volokh, a professor at the UCLA School of Law. “It’s not like Disney got this normal government benefit. They got to kind of run a quasi-municipal entity.”
Unlike situations in which the benefit in question is potentially available to other people, the special tax district was specific to Disney and conferred political power to a corporation. “It’s unusual to think of a corporation holding political office, except that’s kind of what happened here,” Volokh said. Public officials can lose power for political reasons, including retaliation against their politics.
Either way, said Volokh, speaking about the quasi-governmental benefits to Disney, the case could take the courts into uncharted territory. “Of all the First Amendment precedents out there,” he said, “there’s none that’s really quite like this.”
The privilege itself may not be of prime importance to a retaliation claim. “Passage of the law, not the law itself, is the violation — the evidence, proof of retaliation,” said Orlando-based intellectual property and media attorney James Lussier. “The ‘cover argument’ that this is an overdue correction of corporate perks does not withstand scrutiny.”
That the bill was shoehorned into a special legislative session called for another purpose, the scope of the revocation of the special districts, and the lack of research and debate — legitimate legislating — stand as evidence of retaliation, Lussier said. He added, “It’s obvious this is bullying and retaliation for one thing — disagreeing with Ron DeSantis and his minions in the Republican-majority Legislature on a culture wars item designed to get votes and donations.”
Another First Amendment attorney said the very question of intent on the part of the legislators is what could complicate a potential claim. Revoking Disney’s privileges could provide a partial basis for a claim of retaliation, even though it would be difficult to prove in court, Florida First Amendment attorney Thomas Julin told The Intercept. Disney could theoretically argue that the new law violates the First Amendment, which prohibits the government from taking away privileges based on activity protected under it, Julin said, but “the difficulty is proving that action is taken to retaliate.”
“You might say, ‘Well it’s obvious,’” said Julin, noting comments from DeSantis and other conservative lawmakers who lambasted Disney over its protest against the education bill. In a court proceeding, though, a plaintiff would have to prove that the Florida Legislature had acted collectively with a motivation to retaliate, Julin said, and that it would not have undertaken its action if Disney hadn’t engaged in that speech. “That’s very difficult,” he said.
The state’s 160 lawmakers didn’t specify in the legislation or elsewhere that the new law was a reaction to Disney’s position on the “Don’t Say Gay” bill. “Some perhaps have said that, and you can try to piece together different things that the governor has said,” Julin said. “But courts have historically had a very difficult time dealing with legislative actions that are alleged to be retaliatory for the exercise of First Amendment rights.”
“Courts have historically had a very difficult time dealing with legislative actions that are alleged to be retaliatory for the exercise of First Amendment rights.”
There is ample evidence of the governor and the Legislature’s motivation, Julin said, but “the question of proof goes up exponentially” in the context of challenging a bill that’s been signed into law. “But most scholars think, if legislation is motivated by something like retaliation against First Amendment rights, then there is a claim there that can be made, and that can be won.”
DeSantis also on Friday signed a bill revoking an exemption made for theme parks — purportedly with Disney in mind — in a social media law that punishes platforms for applying “censorship, deplatforming, and shadow banning” inconsistently.
The social media law, passed in Florida last May, would fine companies that bar speech from politicians. The measure was proposed after Facebook, Twitter, and YouTube suspended then-President Donald Trump’s accounts after the January 6, 2021, attack on the U.S. Capitol. A federal judge enjoined the law last June, but Florida Republicans have nonetheless sought to undo the carveout that applied to Disney.
The American Civil Liberties Union of Florida said in a statement to The Intercept that the “Don’t Say Gay” bill is unconstitutional and that the government shouldn’t punish businesses that opposed it — citing the rights of the very students the controversial law purports to defend. “Businesses should be able to support students’ rights without fear of revenge at the hands of spiteful government officials. Punishing businesses and individuals who support the rights of Florida students serves no meaningful purpose and is a harmful and arbitrary use of power.”