Opinion | Disney v. DeSantis: How Strong Is the Company’s Lawsuit?6 min read
To understand why Gov. Ron DeSantis of Florida should lose in his quest to punish Disney for the high crime of publicly disagreeing with Ron DeSantis, it is first necessary to talk about tow trucks. Specifically, it’s necessary to discuss a case about tow trucks and the First Amendment and how it answers a key question: If the government offers some person or entity a benefit, can it also take it away?
The tow truck story begins in the early 1990s in Northlake, Ill. For decades the city had maintained a list of tow truck companies available for use by the Police Department. The list worked simply enough — when the police needed towing services, they simply went down the list before each tow, with the next towing company receiving the next call. While towing companies didn’t have a right to be on the list, once placed on it, the city’s policy was to remove companies only “for cause.”
In 1993, John Gratzianna, the owner of O’Hare Truck Service, declined to support the campaign of the incumbent mayor of Northlake, backing his opponent instead. The mayor then removed Gratzianna’s company from the towing list, and Gratzianna sued.
The case was one of many to raise the constitutional question of when the government is allowed to take away benefits it was never obligated to provide. Let’s take, for example, public employment. Being hired for a government job isn’t a right. It’s a privilege.
But if the government isn’t obligated to hire me, does that mean it can fire me for any reason? Absolutely not. Anti-discrimination laws and constitutional principles prevent it from firing me or punishing me because of my race, sex or religion, for example. And even if I’m a public employee, the First Amendment is going to prevent the government from punishing me when I speak as a private citizen on matters of public concern.
This restriction on the government is a very good thing indeed. There are approximately 20 million government employees in the United States. Government-orchestrated campaigns of censorship and reprisal against its own employees would not just distort the public square but would also disrupt the democratic process itself, inducing real fear whenever employees refused to support incumbent politicians.
But that’s employment. What about government financial benefits? How many strings can public officials attach to their immense financial resources? And that brings us back to O’Hare Truck Service. Justice Anthony Kennedy, writing for a 7-2 majority, quoted case law and reaffirmed a clear constitutional principle: “If the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”
“Such interference with constitutional rights,” he added, “is impermissible.”
Not only is this a correct statement of constitutional law; it’s also a necessary statement. America’s federal, state and local governments control immense resources. Total government spending is over $9 trillion annually, and those are just direct expenditures. The government also controls the ability to enact tax breaks and other financial incentives for individuals and businesses. And while there are good arguments against governments providing economic inducements and incentives to private corporations, those inducements and incentives cannot then depend on an implied requirement that the corporations agree with the government on matters of public policy. Otherwise, governments could use the power of the purse to create a two-tiered society, granting and withholding government largess on the basis of political agreement.
Make no mistake, the Florida government’s actions against Disney were directly motivated by the company’s disagreement with a policy pushed by DeSantis. Disney’s legal complaint, filed in federal court in the Northern District of Florida, is chock-full of evidence that the governor and other Florida officials targeted the company for one overriding reason: It put out a statement objecting to House Bill 1557, the Parental Rights in Education Act, which sharply restricted instruction on sexual orientation and gender identity in Florida public schools.
Statements from Governor DeSantis and other Republican state officials are remarkably brazen. DeSantis said he thought Disney’s mild opposition — it mainly consisted of a public statement and a phone call from the former Disney C.E.O. Bob Chapek to DeSantis, moves that a number of L.G.B.T. activists considered inadequate — “crossed the line,” and he promised to “make sure we’re fighting back.” He accused Disney of “pledging a frontal assault on a duly enacted law of the State of Florida.”
So what? Laws are not holy writ, and if the First Amendment protects anything, it protects our ability to object to the laws passed to govern our states and our nation.
But those statements were just the tip of the iceberg. State Representative Spencer Roach said, “If Disney wants to embrace woke ideology, it seems fitting that they should be regulated by Orange County.” This statement refers to the initial punishment chosen by DeSantis and Florida Republicans — the planned dissolution of an entity called the Reedy Creek Improvement District, one of more than 1,800 special tax districts that dot the Florida landscape.
Reedy Creek “oversees land use and environmental protections” in the district, which encompasses Disney World and various adjoining properties. Its Disney-appointed board governed the district, and it helped empower Disney World’s remarkable growth. Florida’s Legislature ultimately yanked control of Reedy Creek from Disney, renamed it the Central Florida Tourism Oversight District and handed it to a board appointed by DeSantis.
Disney responded, however, by working with the outgoing board to pass a development agreement and restrictive covenants that would greatly limit the authority of the new DeSantis board.
This action led to Florida’s next round of reprisals against Disney. The new DeSantis board voted to nullify the new contracts, and DeSantis himself mused at how the state and the new board might wield its power to punish Disney: “People are like, ‘Well, there’s what should we do with this land?’ So you know, it’s like, OK. People have said, you know, maybe create a state park, maybe try to do more amusement parks. Someone even said, like, maybe you need another state prison. Who knows? I mean, I just think the possibilities are endless.”
The motivations could not be clearer: The State of Florida is targeting Disney because of the company’s constitutionally protected expression. Or, as Representative Randy Fine, a Republican, stated: “You got me on one thing — this bill does target one company. It targets the Walt Disney Company.”
John Gratzianna and O’Hare Truck Service are far from the only plaintiffs to win a First Amendment retaliation case at the Supreme Court. Prohibitions against government retaliation for protected speech are as clearly established as virtually any constitutional doctrine in American law. But what O’Hare does show us as clearly as any modern Supreme Court case is the idea that denying government benefits is a form of government control, and when it’s done for the express purpose of punishing an exercise of constitutionally protected speech, it violates the Constitution of the United States.
At the beginning of this piece, I said that DeSantis should lose, not that he will lose. Court outcomes are never completely certain, but this much is correct: A Disney defeat would represent a dangerous reversal in First Amendment jurisprudence and cast a pall of fear over private expression. In its complaint, Disney wrote, “In America the government cannot punish you for speaking your mind.” That is true now and will remain so if Disney wins its case. If Disney loses, on the other hand, America’s first liberty will be at risk, and the culture wars will escalate out of control.
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