Here's How DeSantis and Florida Republicans Just Violated Disney's Civil Rights

[babylonsister]

https://www.motherjones.com/mojo-wire/2022/04/desantis-dont-say-gay-republicans-florida/

15 hours ago
Here’s How DeSantis and Florida Republicans Just Violated Disney’s Civil Rights
Corporations are people, remember?
Pema Levy


On Friday, Florida Gov. Ron DeSantis and his Republican allies revoked Disney’s longstanding tax privileges in the state in retaliation for the company’s opposition to the right’s anti-LGBTQ culture war. In doing so, Florida Republicans have violated Disney’s civil rights.

snip//

But retaliating against someone for exercising their First Amendment rights is a violation of that person’s civil rights. Even if that “person” is Disney.

“It is a violation of the First Amendment for the government to punish a corporation because of the company’s expressed viewpoints on political issues,” says Adam Winkler, a constitutional law specialist at UCLA School of Law and the author of We the Corporations: How American Businesses Won Their Civil Rights. “I think that we will see legal challenges to this. And I think there will be constitutional challenges to it.”

Florida might argue that Disney doesn’t have a right to a special tax privilege that other companies don’t receive. But under Supreme Court precedent from 1972, the government cannot rescind a privilege once granted for improper reasons such as retaliation for political speech. And Disney’s actions—both its statements and its decision to pause its donations—are protected First Amendment activity.


snip//

Disney may have crossed DeSantis. But it’s DeSantis who crossed the line.

[Vinca]

1. Imagine how fast DeSantis is to defend a baker who refuses to make a wedding cake

for a gay couple or a photographer who won't shoot a gay wedding. He thinks he's King of Florida and all must believe whatever he believes. It doesn't work that way. What a shame. I remember when I might have bought a condo down there by the beach.

[Turbineguy]

2. I'm guessing Disney also has Lawyers

who are smarter than DeSantis.

[Chainfire]

5. They have something better than lawyers

What they have kept as a closely held secret, is that Mickey has an evil twin. DeSantis is liable to wake up dead one day with a magic wand shoved up his magic kingdom.

The only super powers of Republicans is the power to destroy. DeSantis is their obvious path to the future.

[pandr32]

32. Oh--the imagery!

[Baitball Blogger]

12. Yes. Florida local lawyers are too political and too dependent on calling each other up

to make sure they're not stepping on toes to be good lawyers.

[Jerry2144]

13. I'm guessing Disney has begonias

Smarter than DeathSatan

[Cha]

43. lol

💙💛

[paleotn]

27. Lots of good, expensive lawyers.

FL is going to get raked over the coals.

[OrlandoDem2]

3. This is also a major tax increase to Central Floridians from the GOP!!

[Chainfire]

41. The Republicans will blame that either on Joe Biden, or Hillary's emails.

The two most affected counties voted for Biden in the last election, so DeSantis gets to punish Disney and Democrats. It is a win-win for him.

[Buckeyeblue]

4. It'll be an interesting case for sure

I don't agree with the SC that a corporation has the same rights afforded to it as an individual. I think Citizens United was one of the most radical decisions in SC history. However, with that as a precedent, and Florida not even trying to hide that they were retaliating against Disney, it will be interesting. Of course the flip side is that the legislature can do as they wish, regardless of the reason.

But it will be interesting.

I still think Disney can cut a deal with the counties and basically continue to operate as they have been and cut the state legislature and governor out of it altogether.

[Effete Snob]

7. Citizens United did not do what some people seem to think it did

Do you agree with any of these decisions:

New York Times Co. v. United States, 403 U.S. 713 (1971)

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)

Most First Amendment cases have been brought by corporations. Citizens United, which incidentally was a film production company, did not alter the fact that corporations have have First Amendment rights for a very long time.

And, please don't try to make a distinction between "a media company" or some other kind of company. Quite obviously, Disney is a "media company" by any definition of that term.

So, you do not agree that Disney should have a right to say whatever they, as a corporation, choose to say in their films or elsewhere, and that First Amendment rights only belong to natural persons. Is that your position?

[Buckeyeblue]

10. Neither of those cases dealt with a specific federal law

The Times case was about the reach of executive privilege and the Hustler case was about the standards that must be reached before a public figure can collect damages for defamation.

Citizens United was about a very specific law that imposed campaign contribution limits on corporations. The court said 2 things: 1. Money is free speech and 2. The law violated the corporation's freedom of speech (without a compelling state interest).

Because the constitution specifically calls out "the press" I do think there is a difference between Huster and The NY Times and Citizens United. Specifically, the court could have said that the law didn't apply to Citizens United because it was a company promoting a movie. But they went much further than that and said the entire law is unconstitutional.

But my point about the Disney case is that Florida isn't stopping Disney from speaking/releasing movies or anything else. They simply removed a special law that had been afforded to Disney. The legislature can do that for whatever reason they want.

[Effete Snob]

25. "Because the constitution specifically calls out "the press" I do think there is a difference"

Cite a single case since 1798 which makes that distinction.

You won't find one.

The point is about whether companies have First Amendment rights. You don't believe that Democratic Underground LLC has the right to publish this website, and you have a right to your opinion, but it is not backed by any applicable law or precedent.

There are not "media companies" and "other companies", there are simply companies. Most major First Amendment cases do not involve individual natural person speakers. To make some kind of legal distinction about "what kind of company is this" is hopeless.

But my point about the Disney case is that Florida isn't stopping Disney from speaking/releasing movies or anything else. They simply removed a special law that had been afforded to Disney. The legislature can do that for whatever reason they want.

That is also not the law. What the state is doing is retaliating against speech.

WHY a government official is doing something matters.

Did Trump have the right to fire Vindman, Voynovich, Comey, and others? Absolutely. But what made these actions suspect is WHY they were done.

Your position is that government power can be exercised for any reason, regardless of what that reason may be. If the mayor can hire a dogcatcher, then it doesn't matter if the mayor was bribed to hire that dogcatcher. After all, the mayor can hire any dogcatcher he wants, right?

It is well-established law that the exercise of a lawful power for an improper purpose is, itself, improper.

For example, just grabbing a handy Fourth Circuit case:

“The general proposition that a government official may not retaliate against a citizen for the exercise of a constitutional right is clearly established law, per Trulock. The specific right at issue here, the right to be free of threats of imminent, adverse regulatory action due to the exercise of the right to free speech, was clearly established by this Court in Suarez.” Blankenship v. Manchin, 471 F.3d 523, 533 (4th Cir. 2006).

(citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000), and Trulock v. Freeh, 275 F.3d 391 (4th Cir. 2001))

No, the legislature may not "do that for whatever reason they want."

That's the same sort of error made by people who think that private employers may fire at-will employees for "whatever reason they want". There are, even in circumstances where the exercise of lawful power is discretionary, situations where the exercise of that discretionary power is unlawful. You can fire any of your at-will employees for any reason, but not, for example, because of their religion, race, etc..

Using lawful government power in retaliation for the exercise of free speech is a textbook example of when that exercise is prohibited.

Cite ANY case otherwise.

[haele]

6. Bill of Attainders are unconstitutional, even if they put a fake date for it

To " catch" other districts and try to pretend it's about something else.
Especially if those other special districts are majority democratic voters.
It's really obvious this is a politically punitive move.

Haele

[Make7]

29. They aren't pretending it's about something else.

Before signing the special districts measure, DeSantis also discussed a connection between Disney indicating that it would work to overturn the Parental Rights in Education legislation, called by critics the "Don't Say Gay" bill, and the special districts bill. He said he could not support the company's agenda.

"I'm not comfortable having that type of agenda get special treatment in my state," DeSantis said. "So the bill here sets the marker."

In response to concerns about the effects dissolution of the Reedy Creek Improvement District would have, DeSantis said, "They (Reedy Creek) do have services, utilities. We're going to take care of that. Don't worry. We have everything all thought out. Don't let anyone tell you that Disney is going to get a tax cut out of this. They are going to pay more taxes because of this."

https://www.mynews13.com/fl/orlando/news/2022/04/22/bill-dissolving-disney-s-special-district-awaits-gov--desantis--signature-

And if Florida reinstates the other handful of affected special district deals essentially as-is but demands significant changes to the Disney special district (which I am guessing they will), that would clearly demonstrate this measure was specifically targeted at Disney for its stance on the "Don't Say Gay" law.

[unweird]

40. Liar gonna lie

Here’s the tell, remember he is a liar…

In response to concerns about the effects dissolution of the Reedy Creek Improvement District would have, DeSantis said, "They (Reedy Creek) do have services, utilities. We're going to take care of that. Don't worry. We have everything all thought out. Don't let anyone tell you that Disney is going to get a tax cut out of this. They are going to pay more taxes because of this."

Jackass knows there will be negative consequences and has already begun the propaganda to manage the blowback.

[PatSeg]

8. Disney has the best lawyers money can buy

DeSantis has poked the wrong mouse and he will undoubtedly pay dearly for it.

[Baitball Blogger]

15. They're so good that they're probably trying to see how they can pull Ron De Santis into the

lawsuit on a personal basis so the taxpayer doesn't have to carry the load for De Santis' power grab.

[PatSeg]

34. What a wonderful thought

DeSantis should have known better. Disney was there long before DeSantis became governor and they will be there long after he is gone. He is a failed dictator wannabe.

[Baitball Blogger]

38. +1

[Cha]

44. Here's HOPING!

💙💛

[Walleye]

9. They don't need no stinking US Constitution. They own the Supreme Court

[Baitball Blogger]

11. Just remember, DU. You heard it here first.

https://www.democraticunderground.com/100216552197

[KS Toronado]

19. "So much soap opera drama for nothing."?

I'm gonna enjoy watching DeSantis get his ass handed to him by Mickey or Goofy.

[TygrBright]

14. hmmmm, that's correct. As a corporation, Disney is officially a "person"

With more rights than bio-people, too.

DeSantis may have finally overreached...

interestedly,
Bright

[bucolic_frolic]

16. If left to stand it would kind of destroy any 'grandfather' action a government granted. /nt

[world wide wally]

17. I keep wondering what incentives the state of Florida offered Disney to move their in

the first place and are now declining them.

[yaesu]

18. Repukes only care about corporate personhood when it suits them. nt

[wiggs]

20. According to the GOP, money is free speech...but free speech isn't free speech. nt

[The Mouth]

21. I object to the very idea that a corporation could have 'civil rights'

That's too close to agreeing with the premise that corporations are people. Only living individuals should have 'rights'

But regardless, Fuck Desantis. I might not like Disney, and could not disagree with Mr. Winkler any more strongly, but fuck Desantis.

The only 'rights' corporations should have is to not have their executive boards summarily executed without a fair trial.

[Effete Snob]

26. So, you believe Nixon had the right to stop the NYT from publising the Pentagon Papers?

Really?

You don't believe that Democratic Underground LLC has the right to publish this website?

[The Mouth]

33. Good point,

But is it the rights of a corporation, or the rights of individuals to express their opinion that is protected?

[Effete Snob]

36. The corporation

That is why most important First Amendment cases involve corporate speakers:


New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

To sustain a claim of defamation or libel, the First Amendment requires that the plaintiff show that the defendant knew that a statement was false or was reckless in deciding to publish the information without investigating whether it was accurate.

New York Times Co. v. United States, 403 U.S. 713 (1971)

The ruling made it possible for The New York Times and The Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censorship or punishment. The Supreme Court ruled that the First Amendment did protect the right of The New York Times to print the materials.


Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)

The First Amendment protects parodies of celebrities or other public figures.

United States v. One Book Called Ulysses, 5 F. Supp. 182 (S.D.N.Y. 1933)

This case was styled as an in rem case, against import of the thing itself. The actual defendant in interest was Random House. https://en.wikipedia.org/wiki/United_States_v._One_Book_Called_Ulysses


United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948)

This was a profoundly important anti-trust case which, as an aside was the first time, that motion pictures were recognized as speech subject to the First Amendment. That case was the foundation for:

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)

...which was the first case in which the principle holding was that films were First Amendment speech. https://en.wikipedia.org/wiki/Joseph_Burstyn,_Inc._v._Wilson

Individuals rarely produce, distribute and exhibit motion pictures, hence the parties involved in First Amendment cases involving motion pictures tend to be production companies and theater companies.

If you think about it, there are very few individuals with the chops to litigate a case to the Supreme Court, despite popular notions of there being lots of attorneys who work for free.

So, yes, a good many of the foundational First Amendment cases which define our media environment have been directly related to the First Amendment rights of corporations.

How about, "Is nude dancing a protected form of First Amendment expression?" Well, unsurprisingly, that case was not brought by a nude dancer but by:


Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)


https://en.wikipedia.org/wiki/Barnes_v._Glen_Theatre,_Inc.

This case is perhaps best summarized by a sentence in Justice Souter's concurring opinion, which is often paraphrased as "Nudity itself is not inherently expressive conduct."

[The Mouth]

48. Well, who besides a corporation has the money?

Sad, but thanks for an *excellent*, scholarly, and interesting post; appreciate it, even if I hate the concept

[sop]

22. DeSantis' "litigation parade."

(Sun Sentinel) "DeSantis celebrates passage of constitutionally dubious laws that pander to the extreme fringes of a Republican base under the evil spell of Donald Trump. Then, when the lawsuits arrive, he doubles down and sticks the people of Florida with the costly legal consequences of his actions."

"Check the court docket: The anti-civil unrest bill (House Bill 1). The nakedly partisan attack on voting by mail to reduce Democratic turnout (Senate Bill 90). The $3,000 contribution limit to blunt future statewide ballot initiatives (Senate Bill 1890). The politically motivated crusade against big social media companies (Senate Bill 7072)."

"All were cited as major accomplishments by the Legislature’s Republican majority and proudly signed by DeSantis, despite repeated warnings that all were blatantly unconstitutional. And all four now face challenges in federal courts"

"At last count, five lawsuits against these new state laws are pending in U.S. District Court in Tallahassee, filed by plaintiffs including the League of Women Voters of Florida, ACLU, Black Lives Matter, NAACP, Florida Rising, Dream Defenders, Florida Alliance of Retired Americans and others."

"More suits are likely on the way. A legal challenge to a new 30-year gambling compact is expected from the anti-gambling group No Casinos, on grounds that will include a claim that an expansion of gambling is prohibited by the Florida Constitution unless voters approve. New state laws that prevent vaccine passports, undermine local government home rule and nullify a legitimate local election in Key West all deserve the scrutiny of the courts, too."

https://www.sun-sentinel.com/opinion/editorials/fl-op-edit-courts-save-us-desantis-20210528-t7c74gh4nrbnjpliycjwgjv62e-story.html

[Cha]

45. Mahalo for that article, sop!

💙💛

[housecat]

23. The plot thickens

[Takket]

24. summary of GOP beliefs:

Private company banning someone from their platform because the expressly violated the company's terms of service multiple times, despite warnings: BAD

Government passing legislation punishing a corporation for its beliefs, and shifting billions of dollars of tax burden to its citizens: GOOD.

[paleotn]

28. DeathSantis, you f'ed with the wrong mouse!!

[Warpy]

30. Disney's lawyers are faned fir beubg absolutely rabid

in defense of that corporation. I'm sure that's some of the argument they'll make.

DeSatan and those Republican losers don't have a chance.

[Eyeball_Kid]

39. Looks like you were typing on a bus. n/t

[Warpy]

42. I'm going blind

If you can't transpose, put me on ignore.

Thanks.

[3825-87867]

31. Hard to believe

a state could be run by a governor and legislature that are more intellectually challenged than Disney's Goofy!

[Sherman A1]

35. I am not worried about Disney one bit

They have battalions of lawyers that will be able to deal with these pesky politicians.

[fescuerescue]

37. Does Disney privatization of government functions have to be renewed every four years?

Or was the offloading to the Disney corporation made permanent in law?

Just wondering if this is a "revoke" action or a "will not renew" action.

[BComplex]

46. Yep. Just look at the hated "Citizens United" decision. Either corporations have "free speech", or

not.

[intheflow]

47. The Revenge of Citizens United!

Using corporate personhood was the conservative wet dream, but like their commitment to companies being free to discriminate if baking wedding cakes but melting down over companies requiring masks, the law of unintended consequences comes back to bite them on the ass!