Disney versus DeSantis: Does free speech cover corporate privileges?

It may call its theme park the Magic Kingdom, but the Walt Disney World resort in central Florida is not a monarchy. The Constitution rules over the property, as it does the rest of the United States – and that is why the company is suing the state of Florida and its governor, Ron DeSantis.

Continuing a yearlong battle between the Republican politician – and possible presidential candidate – and the global entertainment behemoth, the lawsuit raises several financial and contractual issues. But the case also examines and idea that strikes at the heart of American freedom: the right to criticize the government.

It’s been understood for decades that corporations, like individuals, have a constitutional right to free speech. In some areas, like political campaign finance, that has been controversial. But what has never been controversial (legally, at least) is the idea that you can’t be punished by the government for expressing a political viewpoint, whether you’re a person or a corporation.

Florida argues that the case isn’t about Disney’s political views at all, but about a special tax status the company enjoys. Governor DeSantis has dismissed the lawsuit as “political,” saying last week, “we’re very confident on the law.” The litigation could be resolved in various ways, including a settlement, and without addressing the First Amendment question. 

But Disney isn’t the only company to claim government retaliation for political expression. The trend arguably began in 2019 when Republicans rode to the defense of Chick-fil-A being kicked out of a Texas airport. And the stakes for freedom of expression should be made clear.

“The government can’t offer a benefit and make the price of the benefit that you sacrifice your constitutional rights,” says Gregory Magarian, a professor at the Washington University School of Law in St. Louis.

If Florida defeats Disney’s lawsuit, he adds, “it really would have far-reaching consequences for not just the free speech of corporations, but the free speech of everyone.”

Florida vs. its largest employer

The controversy began last year when Governor DeSantis signed into law the Parental Rights in Education Act, part of which prohibits the discussion of sexual orientation and gender identity in public schools. That law was expanded by the DeSantis administration this year to cover all the way through 12th grade.

The same day, Disney released a statement saying that its goal “as a company is for this law to be repealed by the legislature or struck down in the courts.” The day after, Governor DeSantis said the company “crossed the line,” adding that the state was “going to make sure we’re fighting back.” 

In particular, he criticized what he described as the state’s preferential treatment of Disney compared to other businesses. Disney is the largest single-site employer in Florida. Since construction of the resort began in 1967, a special tax district created by the state has effectively run the approximately 25,000-acre area as its own municipality.

This year, Governor DeSantis and the Republican-controlled legislature replaced the board of that district with handpicked successors. Last week, that new board voided Disney-friendly contracts agreed upon by the previous board. The governor has mused about opening a prison near the theme parks.

Disney’s 73-page complaint raises numerous issues. Florida has violated its contract with the company, it argues, and the state engaged in “a targeted campaign of government retaliation – orchestrated at every step by Governor DeSantis.”

“In America,” Disney’s complaint concludes, “government cannot punish you for speaking your mind.”

Why the Ku Klux Klan can adopt a highway

The U.S. Supreme Court has held for decades that the First Amendment protects against government retaliation. The court has even ruled that a state can’t exclude the Ku Klux Klan from its Adopt-A-Highway program.

“Viewpoint neutrality is so deep and so important in First Amendment law it won’t prevent the Klan from participating,” says Don Herzog, a professor at the University of Michigan Law School.

In 1996, the court ruled that a Kansas county violated the Constitution when it fired a trash hauler because he frequently criticized its county commissioners. That same year they found for an Illinois tow truck driver who lost a contract after backing the opponent of the mayor. As recently as 2016, the justices said a New Jersey city couldn’t demote a police officer because it thought he was supporting the opponent of the mayor.

Disney is only the latest corporation to be threatened with government retaliation. Chick-fil-A won its dispute with San Antonio after the city council voted to ban the restaurant from its airport because of its donations to anti-LGBTQ groups. Delta Airlines and Major League Baseball faced threats from Republican lawmakers in 2021 after speaking out against a restrictive Georgia voting law. Rep. Kevin McCarthy warned, on legally dubious grounds, that tech and telecommunications companies could “los[e] their ability to operate in the United States” if they complied with a request from the Jan. 6 committee to preserve certain records.

Florida argues that its recent actions around Disney’s contracts stem from a decision to no longer give the company special benefits. Governor DeSantis has said that Disney is free to oppose the classroom regulation law but “they are not free to force all of us to subsidize their activism.” 

The state may benefit from judicial convention in that regard. In First Amendment cases courts “are usually reluctant to attribute a bad purpose to the government,” says Professor Herzog. 

But in this case, he adds, “the government [has been] going out of its way to announce over and over again that it has a bad purpose.”

If the Disney lawsuit does reach a courtroom (a big “if”), the company really should win, scholars say. Conservative writer David French concurred in a New York Times Op-Ed: “A Disney defeat would represent a dangerous reversal in First Amendment jurisprudence and cast a pall of fear over private expression.” 

Corporate speech rights may differ, in certain contexts, from individual rights. But the protection against government retaliation is – or at least should be – universal, according to Professor Magarian.

“Corporations don’t have autonomy, they don’t have consciences, let’s assume that’s true,” he says. “There’s still something undesirable and problematic about the government retaliating against speech, wherever that speech is coming from.”

“Any time the government retaliates against any speaker,” he adds, “that’s right at the heart of what we don’t want the government to do.”