Ron DeSantis tramples the First Amendment: GOP's Disney payback is clearly unconstitutional

Call it the upside of Citizens United: Restricting corporate speech on political grounds is an obvious violation

By Sabrina Haake

Contributing Writer

Published May 3, 2022 5:45AM (EDT)

Florida Governor Ron DeSantis (Ronda Churchill/Getty Images)
Florida Governor Ron DeSantis (Ronda Churchill/Getty Images)

When Gov. Ron DeSantis and the Florida Republican Party punished Disney for its criticism of the "Don't say gay" bill — in other words, for corporate speech that was clearly political in nature, their retaliation was not just fiscally shortsighted, it was illegal. Any government attempt to restrict a corporation's speech based on the content of that speech must satisfy the strictest scrutiny, meaning the restriction adopted by the government must be narrowly tailored to serve a compelling government interest. Restrictions based on political viewpoint have long been prohibited. Stripping Disney of its special tax status in two Florida counties (which both lean Democratic), while leaving intact more than 1,800 similar tax districts in largely Republican counties, is not narrowly tailored to achieve any clear objective, nor is silencing political critics a compelling or even legitimate government interest in the first instance.

More than 10 years ago, the U.S. Supreme Court vested corporations with the same legal protections as other individuals when speaking on political issues. In the infamous Citizens United decision of 2010, the court elevated the protection due corporate political speech, shielding corporate expenditures for that purpose under the First Amendment. Maligned by the left for largely valid reasons, Citizens United has empowered Big Oil, utility companies and other deep-pocket industries to boost politicians like DeSantis, who symbiotically protect their corporate profits instead of protecting constituents worried about climate, even as Florida's coasts sink visibly around them.  

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Vesting well-funded corporations with expanded political speech rights may have sealed the fate of our rising oceans, but Citizens United also arms corporations like Disney with legal ballast to protect themselves against would-be autocrats who seek to silence them. Although DeSantis was quick to disavow any retaliatory motive in his move to strip Disney of its independent taxing status, his disavowal is absurd in light of the timing and his own comments. Late in 2021, DeSantis warned Florida's most powerful companies not to display "corporate wokeness," widely regarded as showing support for LGBTQ rights and racial justice. He further threatened that if corporations did display "wokeness," the state would "look under the hood" of their operations, with the clear implication that they would examine more closely business practices previously deemed acceptable.  

Although DeSantis disavowed any retaliatory motive in his move against Disney, that seems absurd in light of the timing — and his own comments.

Several months later, DeSantis made good on that threat. On March 28, the governor signed the controversial "Don't say gay" bill into law, prohibiting teachers from discussing sexual orientation and encouraging parents to sue over ill-defined violations. On that same day, Disney's CEO criticized the new law, vowing to see it repealed. Disney released a statement that the bill "should never have been signed into law… Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that. We are dedicated to standing up for the rights and safety of LGBTQ+ members of the Disney family, as well as the LGBTQ+ community in Florida and across the country."

DeSantis was triggered. The next day, he responded scathingly, rebuking Disney for its criticism, warning Disney that it doesn't "run this state" and saying it "will never run this state as long as I'm governor." Two days later, and after more than 50 years of mutually beneficial operations,during a special legislative session convened for an entirely unrelated purpose, DeSantis and the GOP announced plans to revoke Disney's legal entitlement to independent tax status, while preserving over 1,800 similar tax districts in the state.

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Evidence of DeSantis' retaliatory motive isn't limited to the calendar, the sequence of events or the common-sense inference that Disney's 50-plus years of successful taxing authority would not be revoked out of the blue. DeSantis and the GOP's own statements render obvious their lust for retaliation, and make clear that they moved against Disney in direct consequence of Disney's politically motivated speech against "Don't say gay": 

  • DeSantis: "Disney and other woke corporations won't get away with peddling their unchecked pressure campaigns any longer… (We) view corporations like Disney trying to impose a woke ideology on our state as a significant threat… we take a very big stand against that… If Disney wants to pick a fight, they chose the wrong guy." At the bill signing ceremony, DeSantis continued, "You're (Disney) a corporation based in Burbank, California, and you're gonna marshal your economic might to attack the parents of my state... We view that as a provocation, and we're going to fight back against that."  
  • Lt. Gov. Jeanette Núñez: "How dare they. (The Walt Disney Company) has no right to criticize legislation by duly elected legislators… Gov. DeSantis and I won't stand for it." Appearing on Fox News, Núñez questioned whether companies like Disney even have the "right to criticize" state policymakers' efforts.
  • DeSantis press secretary Christina Pushaw: "It was unfortunate that Disney decided to wade into a political debate and attempt to overturn a common-sense law… The opponents of "Don't say gay," she suggested, were "probably groomers" (i.e., those who "groom" children for sexual abuse). 
  • Republican Rep. Randy Fine, who sponsored the bill to strip Disney of its status: "When Disney kicked the hornet's nest several weeks ago (by criticizing 'Don't say gay'), we started looking at special districts… This is something that makes sense to do in general but because of the way Disney has behaved, there's now the political will to do it." "Disney had the political power to prevent (stripping its status) for decades. What changed is bringing California values to Florida… You are a guest. Maybe you don't deserve the special privileges anymore."
  • Republican Rep. Joe Harding, sponsor of "Don't say gay": "Large corporations must be held accountable."
  • Republican Jackie Toledo: "Once upon a time Disney was a great partner with the state of Florida… We've granted them privileges because of our shared history, shared goals and shared successes. Shamefully, Disney betrayed us (by opposing 'Don't say gay')."
  • Republican Sen. Jeff Brandes, who opposed the measure: The retaliatory law "leaves the sword of Damocles over Disney's head for 13 monthsIt shuts them up." 

Brandes' reference to 13 months reflects the effective date of the law, which will not take effect for more than a year, further indicating that this was political theater and a misuse of state power. Allowing over a year to pass will afford DeSantis and the GOP time to modify, retract or edit their work, and will also give DeSantis room to try to address the fiscal implications. Since dissolution of the district will mean that the counties must provide services Disney used to provide, such as road maintenance, and will also require the two counties to absorb nearly $1 billion in Disney's debt, DeSantis clearly needs time to figure out who might pay for it. Delaying the measure long past the next election suggests that he understood all along it would never take effect as passed, but wanted to show that he could and would punish Disney for its political statements. 

Delaying the payback measure long past the next election suggests that DeSantis understood it was political theater all along.

Brandes, the lone Republican vote against the measure, went on: "Nobody actually thinks this is going to happen. The cost to the state would be astronomical, potentially billions of dollars… DeSantis is relishing the feud… This is about staying on Fox. This is about extending the media life of this storyline. This is gold for him." Last year, in an ominous but prescient warning of exactly this kind of GOP retribution targeting 'woke' entities, Mitch McConnell said, "My advice to the corporate CEOs of America is to stay out of politics."  

Unfortunately for McConnell, DeSantis, Núñez and the rest of the GOP, whose lust for punishing critics is palpable, the Supreme Court has forcibly struck down government efforts to deter corporations from speaking out in the first instance. In the Pacific Gas & Electric decision of 1986, the court noted that "(T)he essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas." The court struck down the government order at issue because it "discriminate(d) on the basis of the viewpoints of the selected speakers." Similarly, here Republicans seek to punish Disney, a corporation that has significantly benefitted Florida, that led the meteoric rise of Florida's tourism industry and that employs more Floridians than any other private company in the state, specifically and demonstrably because of its disfavored political speech criticizing DeSantis and the "Don't say gay" legislation. 

Political speech is the heart of the First Amendment. Based on our founders' mistrust of governmental power, the premier and most exalted amendment to the U.S. Constitution was crafted to protect against the government's "attempts to disfavor certain subjects or viewpoints," and soundly "prohibits the government from restricting speech based on content of that speech," as the court wrote in U.S. v. Playboy Entertainment Group (2000), which struck down content-based restrictions. Using state power to silence political speech of critics has wider and more frightening implications than whether sex education is taught in schools. That Florida is attacking LGBTQ people, reproductive rights and racial minorities simultaneously may be alarming, but it isn't nearly as ominous as DeSantis and the GOP's trampling of the First Amendment. 

Silencing political opponents, whether by imprisonment or by imposing an effective ideology tax, presents the steepest of autocratic slopes. If Floridians lose the right to publicly criticize or disagree with their government, they have lost the right to choose who that government will be. The principal reason autocrats and dictators control speech is to consolidate power.  Silencing critics means that the state controls the narrative, and is free to create, spin and disseminate "alternative facts" which are almost always designed to ensure that those who hold power get to keep it.  

During our time, silencing critics and controlling political speech means that autocrats can say anything they want, and the public never hears information to the contrary. It means that an entire country believes Ukraine is the aggressor, and that the United States should be punished for provoking Russia. It means an entire country would feel justified in a preemptive nuclear strike that could wipe out millions. In our founders' time, silencing political critics meant the Intolerable Acts, passed in 1774 to punish colonists for their political speech against the British government. 

That act of political suppression led to the Revolutionary War, which eventually produced a brilliant treatise that was centuries ahead of its time. In laying out principles of freedom and free governance the world had not yet seen or conceived, the framers of the U.S. Constitution showed a singular and unmatched genius that continues to inspire the world, including new countries like Ukraine, fighting now to the death for democracy and freedom of speech. Having suffered from state-imposed religion, our founders forged a new government scrupulously separated from the church. Having been punished and taxed for their speech against government, our founders wrote the First Amendment.

Understanding our nation's history, fully grasping what led desperate men to give their lives to separate church and state, and why they took up arms to defend the right to criticize the government, is the only way to appreciate the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…" To understand the historical underpinnings of the First Amendment is to revere it for the stroke of genius, timeless insight into human conduct, and beacon for universal freedom that it was. To understand its singular beauty is also the only way to grasp the danger of allowing DeSantis and the Republican Party of Florida to trample it.  

Read more on Disney, DeSantis and the Sunshine State:

By Sabrina Haake

Sabrina Haake has 20-plus years of experience as a federal trial attorney specializing in First and 14th Amendment defense. Her legal and political essays have appeared in the Chicago Tribune, the Chicago Reader, OutSFL, the Howey Political Report, South Florida Gay News, the Windy City Times and numerous law journals. Follow her on Substack.

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Citizens United Commentary Disney Don’t Say Gay First Amendment Florida Ron Desantis Supreme Court