DeSantis’ attack on Disney may contradict the first amendment

Disney is not the only major American institution that right-wing politicians can face in their latest salvo against “awake” culture: According to some expert lawyers, they may also encounter the Constitution.

While some First Amendment attorneys say a new Florida law revoking Walt Disney Co.’s special tax status due to the company’s freedom of speech violates First Amendment protection against retaliation, other experts said the unique circumstances complicate the case.

Florida lawmakers on Thursday passed a bill to revoke Disney’s special tax status, which has effectively allowed the entertainment giant to run its own Orlando theme park, Disney World, for half a century. The new law came after Disney suspended political donations and criticized a controversial measure recently called the “Don’t Say Gay” bill by critics, pressured by Republican Gov. Ron DeSantis.

The bill, which was signed into law in March and enters into force on July 1, bans discussion of sexual orientation and gender identity in classrooms for children in kindergarten through third grade. DeSantis, which pushed for the Disney bill to be brought up in a special legislative assembly, signed the measure, ending the company’s special tax status in law Friday.

The law is already receiving a lot of criticism – including what experts said was a violation of constitutional freedoms. It is “absolutely” a violation of the First Amendment for retaliation, media and First Amendment attorney Rachel Fugate, a partner at Florida-based firm Shullman Fugate, told The Intercept.

“I do not think it would be that difficult to prove in court at all,” Fugate said. “Our governor and our legislature were very clear about the reason behind it. And that was because Disney did not support the law and spoke out against it – especially because. There is nothing about, and, or but about why they do this. “

“I do not think at all it would be so difficult to prove in court. Our governor and our legislature were very clear about the reason behind it. “

The fight over the “Don’t Say Gay” law is today’s latest issue in the chaotic debate over free speech and “wake” culture. But in a role reversal, the right-wing politicians who pretend to defend freedom of speech are attacking so-called censors, in this case even Disney for its First Amendment-protected actions.

The first amendment protects freedom of expression and prevents the government from retaliating in response to protected activity. These protections extend beyond fundamental rights, such as the right to protest, and into privileges: a government must not revoke a privilege in response to first amendment-protected criticism.

“You can have your say on whether Disney is entitled to these special privileges,” Fugate said. “But whatever your opinion on the underlying benefits, it should certainly not be revoked because they disagreed with their governor.”

Other First Amendment experts said the revocation of the privilege may not stand up as a retaliation claim because the privilege granted to 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 state benefit. They were supposed to run a quasi-municipal entity in a way.”

Unlike situations where that benefit is potentially available to other people, the special tax district was specific to Disney and transferred political power to a company. “It’s unusual to think of a company holding political office, except that it’s some of what happened here,” Volokh said. Public officials can lose power for political reasons, including retaliation against their policies.

Either way, Volokh said when talking about the quasi-state benefits to Disney, the case could lead the courts into unknown territory. “Of all the first amendments out there,” he said, “there is no one who really is like that.”

The privilege itself may not be of major importance for a retaliation claim. “The adoption of the law, not the law itself, is the violation – the evidence, the evidence of retaliation,” said Orlando-based intellectual property and media lawyer James Lussier. “The coverage argument that this is a delayed correction of the company’s fringe benefits does not stand up to scrutiny.”

That the bill was shoehorned into a special legislative assembly required a different purpose, the extent of the recall of the particular districts and the lack of research and debate – legitimate legislation – stands as evidence of retaliation, Lussier said. He added: “It’s obvious that this is bullying and retaliation for one thing – to disagree with Ron DeSantis and his henchmen in the Republican majority legislature on a culture war article designed to get votes and donations.”

Another First Amendment lawyer said the very question of intent on the part of lawmakers is what could complicate a potential claim. Revoking Disney’s privileges could provide a partial basis for a claim for retaliation, 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 removing privileges based on activity protected under it, Julin said, but “the difficulty is in proving that action is being taken to retaliate.”

“You might say, ‘Well, that’s obvious,'” Julin said, noting comments from DeSantis and other conservative lawmakers who rejected Disney over their protest against the Education Act. In a lawsuit, however, 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 assumed its action if Disney had not participated in that speech. “It’s very difficult,” he said.

The state’s 160 lawmakers did not 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 may have said that, and you can try to put together different things that the governor has said,” Julin said. “But the courts have historically had great difficulty in dealing with legislative acts that are alleged to be retaliation for the exercise of the rights to the First Amendment.”

“Courts have historically had great difficulty in dealing with legislative acts that are alleged to be retaliation for the exercise of the rights to the first amendment.”

There is plenty of evidence for the motivation of the governor and the legislature, Julin said, but “the question of evidence is rising exponentially” in challenging a bill that has been signed into law. “But most researchers believe that if legislation is motivated by something like retaliation against the rights to the first amendment, then there is a claim that can be made and that can be won.”

DeSantis also on Friday signed a bill calling for an exemption for theme parks – reportedly with Disney in mind – in a social media law that penalizes platforms for using “censorship, deplatforming and shadow bans” inconsistently.

The Social Media Act, passed in Florida last May, would fine companies that exclude speech from politicians. The measure was proposed after Facebook, Twitter and YouTube suspended then-President Donald Trump’s accounts following the January 6, 2021 attack on the US capital. A federal judge ordered the law in June last year, but Florida Republicans have nonetheless tried to undo the exclusion 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 should not punish companies that opposed it – citing the rights of students who the controversial law claims. to defend. “Businesses should be able to support students ‘rights without fear of revenge in the hands of malicious officials. Punishing companies and individuals who support Florida students’ rights serves no meaningful purpose and is a harmful and arbitrary use of force.”

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