On Friday, Florida Governor Ron DeSantis and his Republican allies revoked Disney’s long-standing tax privileges in the state in retaliation for the company’s opposition to the right-wing anti-LGBTQ culture war. In doing so, Florida Republicans violated Disney’s civil rights.
This collision of conservative policies – anti-LGBTQ panic and tax breaks – came after Disney critical Florida’s New Anti-LGBTQ Education Law. Its detractors know it as the “Don’t Say Gay” Bill.
The law prohibits the teaching of gender identity and sexual orientation in some Florida classrooms. In response, Disney called for the repeal of the law and suspended political donations in Florida. Then DeSantis rushed to pass a measure to strip Disney World of its designation as a special tax district, which allowed Disney to run its huge Florida theme park for 55 years. DeSantis mentioned Disney’s opposition to the bill “crossed a line.”
“Once Upon a Time Disney was a great partner with the state of Florida,” Republican state Rep. Jackie Toledo said. mentioned. “Shamefully, Disney betrayed us.”
But retaliating against someone for exercising their First Amendment rights is a violation of that person’s civil rights. Even if that “person” is Disney.
“It is a violation of the First Amendment for the government to punish a company because of the views expressed by the company on political issues,” says Adam Winkler, a constitutional law scholar at UCLA Law School and author of We the Corporations: How American Corporations Won Their Civil Rights. “I think we will see legal challenges on this. And I think there will be constitutional challenges.
Florida could argue that Disney is not entitled to a special tax privilege that other companies do not enjoy. But under 1972 Supreme Court precedent, the government cannot revoke a privilege once granted for improper reasons such as retaliation for political speech. And Disney’s actions — both its statements and its decision to withhold donations — are protected First Amendment activities.
Over the past century, the Supreme Court has extended civil rights to corporations, protecting them from government retaliation for exercising those rights. Not so long ago, Republicans applauded this trend. “Businesses are people”, Mitt Romney commonly declared as a presidential candidate in 2012. The party also helped usher in the era of massive corporate political donations with the United States Supreme Court. United Citizens decision, which guaranteed the rights of corporations as political donors under the First Amendment, and supported the hobby hall decision, which recognized the religious beliefs of certain companies. These decisions had significant downsides to American democracy.
“There is an irony that conservatives for the past 20 years have insisted that corporations have rights too and should be able to spend money to influence electoral politics,” Winkler notes. “And yet now they are trying to punish a company for trying to influence policy.”
Interestingly, it also shows something that progressives often haven’t discussed. Other Supreme Court rulings on corporate rights, including landmark freedom of the press case New York Times Company v. Sullivan, have contributed to the maintenance of democratic norms. Autocrats use their control over the private sector to wield power, erode democracy and stifle protest. But because of decisions like United Citizens Disney at least has the option to retaliate on constitutional grounds.
“This whole situation highlights one of the hidden benefits of recognizing corporate rights, which is that corporate rights also serve as a check on government tyranny,” Winkler says. “If corporations had no rights, then the government could crush corporations, restrict their freedom of expression and deeply damage democracy.”
Disney may have crossed paths with DeSantis. But it was DeSantis who crossed the line.