Disney lawsuit raises important First Amendment question
Last week, the Walt Disney Company sued Florida Gov. Ron DeSantis, alleging that the governor and his allies had illegally retaliated against the company for opposing a Florida law banning discussions of gender identity and sexual orientation in certain educational contexts.
The suit came after DeSantis’s handpicked board in charge of overseeing Disney World voted to void a development agreement reached by an earlier Disney-controlled board before it was dissolved by the Florida Legislature at the governor’s request. (DeSantis responded to the lawsuit the day after it was filed, calling it “political.”)
Depending on how Florida responds, the case may raise an important question in a First Amendment retaliation case: When officials expressly state their intent to retaliate against someone based on their viewpoint, but do so in a way that otherwise could pass constitutional muster, can courts take those public statements into account?
To be sure, the Disney case is unusual in that the moves against the theme park district only affected Disney, which arguably improves Disney’s case. And the suit is also unusual in that there is a wealth of public statements by DeSantis and lawmakers clearly and explicitly linking Disney’s public opposition to the controversial law and efforts to eliminate the benefits Disney receives from the district.
In fact, DeSantis wrote in his memoir: “I needed to be sure that the Legislature would be willing to tackle the potentially thorny issue involving the state’s most powerful company. I asked the House Speaker, Chris Sprowls, if he would be willing to do it, and Chris was interested. ‘OK, here’s the deal,’ I told him. ‘We need to work on this in a very tight circle, and there can be no leaks. We need the element of surprise — nobody can see this coming.’”
In an article promoting that book, he doubled down, writing, “When corporations try to use their economic power to advance a woke agenda, they become political, and not merely economic actors.” He added: “Leaders must stand up and fight back when big corporations make the mistake, as Disney did, of using their economic might to advance a political agenda.”
Disney has two First Amendment claims in its complaint (in addition to constitutional claims under the contracts, takings, and due process clauses). One asks the court to hold that the vote by the DeSantis-controlled board to void the earlier development agreement is unconstitutional retaliation for Disney’s First Amendment protected speech. The other does the same for the legislation dissolving the Disney-run board.
Disney may face the argument that the many public statements linking Disney’s political speech with the two allegedly retaliatory actions against it cannot be considered by the court, if the underlying actions would otherwise be constitutional.
That would be based on language in the Supreme Court’s decision in United States v. O’Brien, which upheld a law criminalizing the burning of draft cards. In rejecting an argument that floor speeches offered in support of the bill revealed an intent to suppress free speech, the court refused to strike down the statute “on the basis of what fewer than a handful of Congressmen said about it.” But the justices have sent mixed signals on that question over the years, suggesting in other cases that “even a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys.”
The same argument popped up in the U.S. Court of Appeals for the Eleventh Circuit’s decision in NetChoice v. Moody, the challenge to Florida’s attempt to police perceived bias on large social media platforms (detecting a geographical trend here). The court there rejected the plaintiffs’ argument that statements by the law’s proponents confirming that the legislation was meant to target the “leftist” bias of “big tech oligarchs” against “conservative” ideas rendered the whole statute subject to the highest level of constitutional scrutiny. But in a nod to “the unsettled state of precedent,” the Eleventh Circuit declined to decide “whether courts can ever refer to a statute’s legislative and enactment history to find it viewpoint-based.”
We think the better argument is that strong-enough evidence of illicit motive counts, and “willful blindness” to the motivations of public officials is deeply dangerous for press rights, especially when politicians are saying the quiet part out loud. Fifty years ago, the Nixon administration attempted to use antitrust and telecommunications laws to bring The Washington Post and the big broadcast networks to heel. But it did so sotto voce. For the Post, Nixon’s close friend, real estate mogul Bebe Rebozo, covertly worked to challenge a Post-owned broadcast license (again in Florida!), causing the Post’s stock to plunge just as the paper was putting together the Watergate scandal.
Most of us think of threats to press freedom as kind of obvious: an injunction to block publication of government secrets, police arresting a journalist covering a protest, secret legal proceedings or frivolous defamation claims intended not to cure one’s reputation but to silence perceived criticism. But the most sinister challenges to the First Amendment are when the government misuses its awesome power to hit media companies in the pocketbook. Courts should be particularly attuned to that risk, and taking DeSantis at his word — that this was a move to punish “woke” Disney — should be an easy call for any court.
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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.