Disney punishment signals danger for corporations that take a stand

The right to free speech and to participate in political debate is the biggest casualty in Ron DeSantis’ culture wars, particularly his latest offensive against Disney for its voiced opposition to the so-called “don’t say gay” bill.

Regardless of one’s position on the bill, critical race theory, or even mandated masks in public schools, every thinking person of whatever political persuasion ought to be aghast at the governor’s use of the state taxing and regulatory power to punish political speech.

Suppose the state revoked or denied a grant intended to support affordable housing to a recipient because that recipient opposed “don’t say gay” or voiced opposition to any other piece of legislation the governor supports. What if the state revoked property-tax exemption — in other words, raised taxes — on a charity because the charity happened to speak in favor of critical race theory? Suppose a future Democratic governor withdraws funding for an important and necessary construction project because a major business owner in Tampa supports a conservative nominee for the Supreme Court.

Even the disinterested understand that government may not punish pure speech, especially political speech. Political speech is indispensable to a democracy. It is what makes government answerable to the people. And ever since the United States Supreme Court decided that Citizens United had a First Amendment right to produce an anti-Hillary Clinton film, we know that free speech rights extend to corporations.

Under another Supreme Court rule, the “unconstitutional conditions” doctrine, government may not compel silence by revoking tax or other regulatory benefits; government may not raise taxes, deny, or revoke a benefit merely because a taxpayer or recipient speaks against government policy. Condoning that sort of extortion would allow government to do indirectly, via its taxing and spending power, what it may not do directly through its power to compel or prohibit by criminal or civil penalty.

Even DeSantis, a Harvard-educated lawyer, knows that he could not have explicitly ordered Disney to shut up. If he paid attention in his Constitutional Law class, he must also know that he cannot indirectly order Disney to shut up by yanking tax and other regulatory benefits.

What’s even more shocking is that his legislative allies have knowingly abdicated their own duty to support and defend the federal and state constitution’s guarantee of free speech. I suspect that some in the Legislature understand this all too well. Senate President Wilson Simpson offered a truly laughable alternative narrative for suddenly revoking tax and regulatory benefits to Disney. He explained that Disney injecting itself into a political debate brought the obsolescence of Disney’s special district legislation to their attention by mere coincidence and, oh, while we are here, why don’t we just clean up this oversight by revoking it?

Does anybody really believe that the action taken against Disney is just ordinary legislative house-cleaning not intended to punish Disney for its political speech, or to warn other people and businesses that they better shut up lest they too be stripped of some government tax or regulatory benefit?

It is hard, of course, to lose sleep over the position where Disney now finds itself. Disney will undoubtedly survive and even thrive. It’s been around long before DeSantis first ran for office and will be around long after the presidential campaign he’s obviously preparing for through his culture wars.  But DeSantis’ offensive against free speech is an assault on democracy itself. Corporations, which have as much impact on civil society as government or nonprofit organizations, will think twice in the future about their words in support of a more perfect union. If discretion be the better part of valor, they might just shut up. And that is exactly the intended impact.

Darryll K. Jones is a Professor of Law at Florida A&M University College of Law.