Disney not the only legendary American institution that right-wing politicians may face in their latest salvo against “awakening culture”: according to some seasoned lawyers, they may also face the Constitution.
While some First Amendment lawyers say a new Florida law that removes The Walt Disney Co. as a result of corporate free speech violating First Amendment protections from retaliation, other experts say the unique circumstances complicate matters.
Florida lawmakers passed a bill Thursday to remove Disney’s special tax status, which effectively allowed the entertainment giant to operate its Orlando theme park, Disney World, on its own for half a century. The new law comes after Disney suspended political donations and criticized a recent controversial measure, dubbed by critics as the “Don’t Say Gay” bill, promoted by Republican Governor Ron DeSantis.
This bill, signed in March and entered into force on July 1, prohibitions discussion of sexual orientation and gender identity in classrooms for children from kindergarten to third grade. DeSantis, who has pushed for Disney’s bill to be brought to special legislative session, signed into law Friday to end the corporation’s special tax status.
The law is already drawing a lot of criticism, including what experts have called a violation of the constitutional protection of freedom of speech. This “absolutely” constitutes a violation of the First Amendment to retaliation, told Olx Praca media and First Amendment attorney Rachel Fugate, a partner at the Florida-based firm Shullman Fugate.
“I don’t think it’s going to be that hard to prove in court,” Fugate said. “Our governor and our legislature have made the reason for this very clear. And all because Disney did not support the law and opposed it – precisely because of this. There are no “ifs”, “ands” or “buts” about why they do it.”
“I don’t think it’s going to be that hard to prove in court. Our governor and our legislature have made the reason for this very clear.”
The fight for the “Don’t Say You’re Gay” law is the latest issue of the day in a chaotic debate about free speech and “wake up” culture. But in a role reversal, right-wing politicians who claim to protect free speech from attacks by so-called censors are in this case attacking Disney for its First Amendment-protected actions.
The First Amendment protects free speech and prohibits the government from retaliating against protected activities. These protections go beyond basic rights, such as the right to protest, and include privileges: the government cannot revoke a privilege in response to criticism protected by the First Amendment.
“You can have your own opinion about whether Disney is eligible for these special perks,” Fugate said. “But whatever your opinion of the core merits, it definitely shouldn’t be canceled because they don’t agree with their governor.”
Other First Amendment experts have said that the revocation of the privilege cannot be seen as retribution because the privilege granted by Disney is 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 received this regular government benefit. They had to sort of manage a quasi-municipal entity.”
Unlike situations in which the benefit in question is potentially available to other people, the special tax district was characteristic of Disney and endowed the corporation with political power. “It’s unusual to think of a corporation holding a political office, except for what happened here,” Volokh said. Government officials may lose power for political reasons, including in response to their policies.
Either way, Volokh said, speaking of quasi-state benefits for Disney, the case could take the courts into uncharted territory. “Of all the existing First Amendment precedents,” he said, “there is not one that really looks like this.”
The privilege itself may not be of paramount importance for retribution. “Passing the law, not the law itself, is a violation—proof, proof of retribution,” said Orlando-based intellectual property and media attorney James Lussier. “The cover story that this is a belated fix to corporate benefits doesn’t hold water.”
The fact that the bill was crammed into a special legislative session called for a different purpose, the extent of the repeal of the special districts, and the lack of research and debate—legitimate pieces of legislation—are evidence of retaliation, Lussier said. He added: “This is clearly intimidation and retribution for one thing – disagreeing with Ron DeSantis and his henchmen in the Republican-majority Legislature on a culture wars clause designed to win votes and donations.”
Another First Amendment lawyer said the very question of intent on the part of lawmakers could complicate a potential lawsuit. The revocation of Disney privileges could form part of the basis for a retaliation suit, although it would be difficult to prove in court, Florida First Amendment attorney Thomas Julin told Olx Praca. According to Julin, Disney could theoretically argue that the new law violates the First Amendment, which prohibits the government from taking away privileges based on activities protected by it, but “the difficulty lies in proving that the actions were taken in response.”
“You can say, ‘Well, that’s obvious,'” Julin said, drawing attention to the comments. DeSantis and other conservative legislators who criticized Disney in connection with the protest against the education bill. However, during the course of the trial, the plaintiff will have to prove that the Florida Legislature acted collectively in order to get revenge, Julin said, and that it would not have taken action if Disney had not been involved in the speech. “It’s very difficult,” he said.
The 160 state legislators did not indicate in legislation or elsewhere that the new law was a reaction to Disney’s position on the Don’t Say Gay bill. “Perhaps some have said so, and you can try to piece together the different things that the governor said,” Julin said. “But historically, it has been very difficult for the courts to deal with legislative action that is claimed to be retaliatory for exercising First Amendment rights.”
“Historically, courts have had difficulty considering legislative action that is claimed to be a retaliation for the exercise of First Amendment rights.”
There is ample evidence of the governor’s and the Legislature’s motivations, Julin said, but “the question of evidence rises exponentially” in the context of challenging a bill that was signed into law. “But most scholars believe that if legislation is motivated by something like retaliation against First Amendment rights, then there is a suit that can be brought and won.”
DeSantis also signed legislation on Friday to repeal an exemption made for theme parks — ostensibly with Disney in mind — on social media. law which penalizes platforms for inconsistent use of “censorship, deplatforming, and shadowbanning.”
Social media law passed in Florida last May, will penalize companies that ban speeches by politicians. The measure was proposed after Facebook, Twitter and YouTube suspended the accounts of then-President Donald Trump following the attack on the US Capitol on January 6, 2021. federal judge prescribed The law was passed last June, but Florida Republicans have nonetheless tried to repeal the exemption that applied to Disney.
The Florida American Civil Liberties Union said in a statement to Olx Praca that the Don’t Say Gay bill is unconstitutional and that the government should not penalize businesses that oppose it, citing the very students’ rights that the controversial law claims. protect. “Businesses should be able to support student rights without fear of retaliation from evil officials. Punishing businesses and individuals who support the rights of Florida students is pointless and constitutes a harmful and arbitrary exercise of power.”