DeSantis vs. Disney: There is more to the story

Conservatives have been consumed recently with the move by Florida’s Republican governor and legislature to remove Disney’s special tax district near Orlando, which has facilitated the business of its signature theme parks during the past several decades. Many Christians and conservatives have cheered the move due to their frustration with Disney’s decision to join the battle over Florida’s elementary education curriculum and the company’s stated ambition to use its entertainment projects to push the envelope on human sexuality.

In terms of the politics of the thing, Gov. Ron DeSantis’s move makes a lot of sense. The standard approach was that corporations only intervened in politics when their direct economic interest was at stake, wanting to avoid the impression they were taking sides between groups of Americans. In this case, Disney put aside the older approach and became a partisan in the Sunshine State. Once you declare yourself a partisan, it probably doesn’t make much sense to think you can operate as a quasi-government town in central Florida.

Neither political party would likely extend significant benefits to a massive corporate adversary promising to interfere in the politics of the state (as with education) potentially over the long term. Adding to the appeal for Gov. DeSantis is that he is a likely presidential candidate making a move for which the GOP base wildly approves.

But there is a problem in this scenario that few understand or want to admit. One of the reasons many want Elon Musk to succeed in buying Twitter is the hope he will restore free speech to the social media platform. As a nongovernment, corporate entity, Twitter has no such legal obligation. If its leaders care for free speech, then they will protect it. If not, they will repress it. Governments in the United States (federal, state, and local) do not have that privilege. The First Amendment of the U.S. Constitution, in concert with the 14th Amendment, prevents governments from abridging the freedom of speech. While it is acceptable to regulate the time, place, and manner of speech and to prevent speech that presents some kind of imminent danger, such as a call for violence, governments in the United States (including Florida’s) must not suppress it.

The danger with what Gov. DeSantis and the Florida legislature have done is that they have directly responded to Disney’s political activity (including its speech) by removing an important benefit the company has enjoyed for decades. The courts may see the elimination of Disney’s special tax district as punishment for its advocacy and, therefore, as suppression of its right to free speech. Jenna Ellis, who was a lawyer for former President Donald Trump, has also pointed out what she sees as this fundamental flaw in Florida’s approach. The connection is simply too direct to avoid.

In seeking to defend Florida’s action against Disney, supporters have said time and again that Disney has no right to a special tax district. If they have no right to such a district, there can be no constitutional problem, they say. Disney does not have such a right. In ordinary circumstances, Florida could put an end to the district. No consequences would follow other than the challenge of unwinding such a massive arrangement. But while Disney does not have the right to the district, it might have a right not to have the state act punitively against the company in direct response to its political advocacy. That is where the freedom of speech comes in.

Others have argued that the action can’t be reversed because it is now a law passed by the state and signed by the governor. To make such a statement, though, is to misunderstand the U.S. Constitution’s status as the supreme law of the land. If any action by a state runs afoul of constitutional guarantees, then it will not survive.

There is much to applaud in the willingness of Florida to stand against the early sexualization of children in schools. I see parents and other citizens there refusing to allow those on the left free rein to shape and mold children however they may choose. Protecting the innocence of young children from sex and gender ideology is desirable. But we have to do the right thing in the right way. Time will tell on this one.