DeSantis-Disney fight isn’t just grandstanding

The core principle underlying the First Amendment is that government cannot punish speech because it disagrees with its viewpoint. But that is exactly what Gov. Ron DeSantis and the Florida Legislature have done to the Disney corporation for having dared to oppose legislation limiting discussion of gay issues in Florida’s public schools.

We think the Supreme Court was wrong in Citizens United when it granted full free speech rights to corporations like Disney. Nor are we fans of delegating government powers to profit-driven corporations. But, as long as corporations continue to function as powerful First Amendment speakers, the worst thing we could do is empower an all-powerful regulatory state to turn corporate speakers into mouthpieces for the government by punishing them for failing to toe the partyline. That’s how Vladimir Putin rules Russia.

Gov. DeSantis and Florida state lawmakers have revoked a 55-year-old arrangement that allowed the Walt Disney Co. to self-govern its 25,000-acre Disney World complex. Stripping Disney of its local governmental powers was done for just one reason, and DeSantis was explicit about it: Disney CEO Bob Chapek had criticized Florida’s recently adopted law prohibiting classroom discussion of sexual orientation and gender identity in certain elementary school classrooms. DeSantis and the Florida Legislature were simply retaliating for Chapek’s criticism of the “don’t say gay” law.

It was once the law that government could condition the grant of a so-called “privilege,” like Disney’s authority to exercise delegated local government power, on any terms it wished. But over a half century ago, the Supreme Court rejected that approach and repeatedly has held that the regulatory state may not condition the continued enjoyment of a government granted benefit on the recipient’ s waiver of its First Amendment rights. Under settled First Amendment principles, the Florida Legislature could not provide that a person’s license to practice medicine or law, or their eligibility to receive welfare benefits, could be made contingent on supporting government policy.

Simply put, the government cannot condition the discretionary grant of a benefit on a recipient’s waiver of a constitutional right. The Supreme Court, applying its “unconstitutional condition” doctrine, has struck down efforts to condition government funding of public television stations on a waiver of the station’s First Amendment right to use privately raised funds to support news programs. Similarly, the court has invalidated efforts to condition the payment of the salaries of federally funded Legal Services Corp. lawyers on a waiver of the lawyers’ First Amendment rights to challenge the constitutionality of congressional legislation. More recently, the court held that the government cannot condition U.S. Agency for International Development funding to American health care organizations working abroad on a recipient’s willingness to endorse the government’s position advocating the criminalization of prostitution.

Florida’s effort to condition Disney’s continued exercise of local government authority on its support for the governor’s anti-gay bill is no different. DeSantis and the Florida Legislature have unconstitutionally conditioned Disney’s ability to exercise local government benefits on the company’s silence.

There is a temptation to dismiss Florida’s action as political grandstanding by a governor who wants to run for president and is seeking issues that play to his base. Going after Disney for being too supportive of gays received just the headlines DeSantis wanted. But if DeSantis and the Florida Republicans can get away with this, there will be no stopping their power to use the machinery of government to punish and silence their critics — corporate or otherwise. If DeSantis gets away with punishing Disney for its speech, any corporation, indeed any person receiving a benefit from a government will risk losing it unless they toe the party line. The potential for government manipulation of corporate — and other — speech is enormous.

It is for this reason that we must not ignore what DeSantis and Florida Republicans have done. By using the enormous power of the government to punish Disney for the speech of its officials, the Florida law strikes at the very heart of the First Amendment’s protection of open and robust debate about government policies. A court should rule against this power play by DeSantis and should emphatically reaffirm what should be clear to all: The government cannot punish speech because it does not like the views expressed.