For more than a year, Florida Gov. Ron DeSantis has attacked the Walt Disney Co., derisively referring to it as the “Magic Kingdom of Woke Corporatism.” But on Wednesday, the company filed suit, alleging that DeSantis had violated its constitutional rights. The company’s case seems strong and may well make DeSantis regret the day he decided to pick this fight in his bid to be the right’s leading culture warrior.
DeSantis describes Disney’s statement as a “declaration of war.”
On March 28, 2022, DeSantis signed into law the “Parental Rights in Education bill” — called the “Don’t Say Gay” bill by critics. Disney released a statement via Twitter the next day, arguing that the bill “should never have passed and should never have been signed into law.” The company wrote that its “goal” was “for this law to be repealed by the legislature or struck down in the courts,” adding that it would “remain committed to supporting the national and state organizations working to achieve that.”
DeSantis was enraged. “I think they crossed the line,” he warned during a news conference in Tallahassee the next day. In his book, “The Courage to Be Free: Florida’s Blueprint for America’s Revival,” DeSantis describes Disney’s statement as a “declaration of war.” The governor claims that by “promising to work to repeal the bill,” Disney “was pledging a frontal assault on a duly enacted law of the State of Florida.”
DeSantis is wrong. Disney merely expressed a contrary opinion. And expressing that opinion is protected by the First Amendment. The governor’s campaign of retaliation for exercising that right in turn violates that law.
Disney has the absolute right to express its opposition in any number of ways. For instance, it can financially back other like-minded groups, lobby Florida lawmakers, buy advertisements, produce a show to explain why it thinks the law damages society — or just tweet out a statement.
The Supreme Court’s decision in the Citizens United case supports Disney’s claim. Many argue (and we agree) that the decision unfairly skewed the ability of wealthy donors to influence elections. But the fact remains that under current Supreme Court case law, corporations have First Amendment rights when it comes to political speech. That means the government cannot retaliate against a corporation for exercising its right to free speech concerning proposed or enacted legislation. That’s exactly what DeSantis did.
In his own book, DeSantis essentially admits that he retaliated against Disney in a manner that clearly violates its First Amendment rights. He does not cite any illegal behavior on the company’s part — simply its political views. “Once Disney declared war on Florida families,” DeSantis writes of Disney’s opposition to the law, “it was clear to me that the company’s executives in Burbank had not considered the lack of real leverage that Disney has over the State of Florida.” That “leverage” included the fact that Disney couldn’t easily pick up and move its massive footprint, as well as the special privileges the company enjoys by effectively running its own local government — the Reedy Creek Improvement District.
The district was established in 1967 by an act of the Florida Legislature and grants Disney favorable financial terms, including a special tax status. DeSantis targeted this longstanding arrangement only after Disney publicly expressed its opposition to the “Don’t Say Gay” bill — an obvious violation of Disney’s First Amendment rights.
In fact, DeSantis writes that it “would have been unthinkable” to get the Florida Legislature to “re-evaluate” or “eliminate” the district “just a few weeks before Disney executives made the fateful decision to take sides in the woke culture wars.” DeSantis pays lip service to the “right” that the Walt Disney Co. and “its executives” have “to indulge in woke activism.” But he quickly adds that “Florida did not have to place the company on a pedestal while they do so,” arguing that Disney’s “special arrangement” became fair game.
In February, the Florida state Legislature followed through on DeSantis’ plan by voting to give the government control of the district’s board. DeSantis then replaced the board with a new entity known as the Central Florida Tourism Oversight District. DeSantis’ loyalists serving on the new district then voted to invalidate existing contracts with Disney. This apparent violation of Disney’s First Amendment rights prompted the company to sue. Disney also has a winning argument when it claims that the new district’s abrogation of contracts violates the “Contracts Clause” of the Constitution. That clause prohibits a state from passing a law “impairing the Obligation of Contracts.” When it comes to contracts made with the state itself, the Supreme Court has held that any interference must be “necessary” to serve an “important” governmental purpose. The governmental purpose here — as repeatedly articulated by DeSantis and other Florida Republicans — was to retaliate against Disney for its “woke” politics. Far from being “important,” that governmental purpose is legally impermissible. DeSantis’ fight with Disney isn’t the first time he has violated the First Amendment. In January, a federal judge found that DeSantis violated both the federal and state Constitution when he fired a state prosecutor for speaking out about abortion rights (another aspect of the ruling is on appeal). U.S. District Judge Mark Walker also ruled DeSantis had violated the First Amendment by pushing an “anti-riot” law that unduly limited speech and assembly protections and a “Stop W.O.K.E.” bill prohibiting discussion of certain racial issues. Meanwhile a three-judge panel of the 11th U.S. Circuit Court of Appeals said his bill punishing social media companies also violated free speech protections. The list goes on and on. If Florida is the bastion of freedom that Ron DeSantis claims it is, then the First Amendment should be sacrosanct. In DeSantis’ hands, it no longer is. That isn’t part of a “blueprint for America’s revival,” as he claims. On the contrary, it is as un-American as you can get. Fortunately, Disney seems to have sufficient legal grounds to defeat DeSantis in his latest assault on the Constitution.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Josh Stanton
Josh Stanton is Counsel at Perry Law. He previously served as co-director of the Criminal Practice Clinic at Vanderbilt Law and as a public defender in Memphis, Tennessee. 
