Florida bill stripping Disney of special tax district violates First Amendment

Florida bill stripping Disney of special tax district violates First Amendment
Disneyland (Image: YouTube screen grab)

The Florida legislature is about to strip Disney of its special tax district in retaliation for its opposition to a recently-passed Florida law. The taking away of this valuable tax benefit because of Disney’s speech is a textbook First Amendment violation. The Supreme Court ruled officials can’t withhold even an optional benefit, based on speech on a matter of public concern, in Board of County Commissioners v. Umbehr (1996). Companies can’t be punished for speaking out, as the Supreme Court made clear in First National Bank of Boston v. Bellotti (1978).

At Hot Air, Allahpundit asks, “Isn’t the Florida bill stripping Disney of its special tax district a case of simple viewpoint discrimination?”  Why, yes, it is.

That’s true even though Florida never had any obligation to give Disney any special privileges to begin with, and arguably shouldn’t have. Florida can take the privileges away at some point in the future, but doing so right now, at a time when legislators are saying Disney needs to be punished for its lefty stances on education, smacks of obvious retaliation for Disney’s speech.

So does the fact that the legislation against Disney occurred so closely after enactment of the law Disney opposed. Courts sometimes find that otherwise permissible actions (like firing an at-will employee) are illegal retaliation solely because they occurred shortly after the target complained or spoke out.  [See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (finding that an employee discharged less than two months after filing a complaint with employer and 10 days after filing state complaint had established a causal connection); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir.1996) (finding an inference of causation where 12 days elapsed between complaint and employee’s discharge); Holava-Brown v. General Electric, 1999 WL 642966, *4 (2d Cir. Aug. 10, 1999) (two to three months)].

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The current legislature and Florida’s governor had no problem with special privileges for Disney as long as it didn’t rock the boat — in fact, they put exceptions to help Disney into other legislation, such as a law aimed at Big Tech. So this legislation against Disney is not motivated by a generalized opposition to special privileges, as opposed to a desire to retaliate against Disney.

Disney’s speech did not disrupt government operations, and viewpoint discrimination by the government is generally forbidden even when the government is regulating speech that is actually disruptive. See Speech First v. Cartwright (2022). Tax exemptions cannot be taken away based on someone’s viewpoint. See Speiser v. Randall (1958).

As Allahpundit notes, Florida officials had no problem with giving Disney special privileges as long as it did not criticize government policy:

Decades ago, Disney got a sweetheart deal to end all sweetheart deals from the government of Florida, granting it almost total autonomy over the huge tract of land on which DisneyWorld now sits. It’s a de facto People’s Republic of Mickey Mouse. In return, Florida gets lots and lots and lots of jobs, economic activity, and tax revenue.

For decades, no one said boo about it. DeSantis became governor in 2019 and also didn’t say boo. To the contrary, he kept up the practice of special favors for Disney…Meanwhile, Disney kept up its traditional largesse towards Florida Republicans, donating nearly a million bucks to the Florida GOP, more than half a million to GOP Senate candidates, and $50,000 to DeSantis during the 2020 cycle.

A few months ago, DeSantis signed the “don’t say gay” bill into law despite Disney having lobbied against it. Disney’s LGBT employees and their allies pressured the company to throw its weight around by speaking out against the law, which Disney eventually did. The company also suspended political donations in Florida. DeSantis responded by slamming the company for carrying on a “woke” double standard by doing business with a gross human-rights abuser in China while feigning offense at far lesser affronts here at home. Which is true, and fair enough.

That should have been the end of it. Republicans won. They got their law. Nothing left to prove.

But then things took a turn. DeSantis started looking around for ways to use state power to punish Disney for opposing the “don’t say gay” law….Much more serious is DeSantis pushing to repeal DisneyWorld’s original sweetheart deal granting it the power to essentially govern itself, another special privilege under Florida law that Disney never should have received. If DeSantis had barreled into office on day one as governor and proclaimed, “It’s insane that we’re letting a corporation operate as a sovereign state,” who could have disagreed? But he didn’t do that. He had no problem with Disney’s special exemption so long as the company didn’t give him and/or his party any political flak.

This morning a bill repealing Disney’s special tax district passed the Florida Senate and is expected to pass the House. And seemingly no one disputes that the only reason it’s happening is because a private actor dared to criticize the governor’s pet culture-war legislation. Listen to this guy, who’s all too eager to condition how the state treats Disney on whether it “behaves” or not, which is populist-speak for “exercises its First Amendment rights in a way that displeases me.”

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for CNSNews.com and has appeared on C-SPAN’s “Washington Journal.” Contact him at [email protected]

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