Have Disney’s First Amendment rights been violated by Florida?

The Florida Legislature voted last week to strip one of the biggest multinational entertainment and media conglomerates in the world, the Walt Disney Company, of its 55-year-old self-governing privileges at Walt Disney World. The move comes after the company condemned a new state education law, signed by Gov. Ron DeSantis, that opponents are calling the “Don’t Say Gay” law.

The theme park megaresort, located within Orange and Osceola County, started when Walt Disney, after being drawn to the interstate highway system in Orlando, bought millions of dollars worth of Central Florida farmland. The land, which measures 40-square miles, was controlled by Disney after the state designated the area as the Reedy Creek Improvement District, NPR reports. This was to relieve the surrounding counties of paying for new services and any infrastructure the company would like to use or create in the once rural farmland.

The district was established in 1967 when the state, working with the Walt Disney Company, created a special taxing district, which allows the entity to run the theme park with the same authority and responsibility as a county government. This means Disney is allowed to build and maintain municipal services, such as electricity, water, and roads. It can also provide police and fire protection while taxing itself.

Claudia E. Haupt, associate professor of law and political science, poses for a portrait. Photo by Matthew Modoono/Northeastern University

The conflict between the two groups started in March 2022 when the governor signed a bill that prohibits instruction and discussion about sexual orientation and gender identity in certain elementary school classrooms, the New York Times reports. The bill, called “Parental Rights in Education” law, often referred to as the “Don’t Say Gay” law, has led to a wide discussion about how it might impact children in schools. Bob Chapekthe chief executive officer of the Walt Disney Company, openly shared the bill following internal pressure he was receiving from Disney employees in Florida and the former CEO of the Walt Disney Company, Robert A. Iger.

“We were opposed to the bill from the outset, and we chose not to take a public position because we felt we could be more effective working the scenes directly with lawmakers on both sides of the aisle,” Chapek said.

DeSantis chimed back saying Disney expressed “woke” opinions toward the law, and “tried to attack to advance their woke agenda,” Vox reports.

“I think it’s deeply problematic for the government to punish or to respond against a speaker whose message they don’t agree with and in particular when it’s a political message,” says Claudia E. Haupt, associate professor of law and political science at Northeastern. “The uncontested core of the First Amendment is that it protects private political speech against government prohibitions and corporate speech, and like corporate speakers count for that too.”

On April 19, the governor asked Florida lawmakers to terminate Disney World’s privileges, and only one day later, Florida’s Senate voted to revoke the privileges starting in June 2023. Florida’s House followed suit that following Thursday, which allowed DeSantis to make it official after he signed the bill the very next day.

Many are now wondering if Florida lawmakers violated Disney’s First Amendment right to free speech.

“The retaliation status here is that the government, they’re taking away the special that Disney had previously,” Haupt says. “And so, it puts the company at a worse position than before because of the particular viewpoint they had.”

DeSantis’ lieutenant governor, Jeanette Nunez, told Newsmax that the state could reverse course if Disney changed its stance on the governor’s latest education law.

“There’s the question of the connection between Disney’s message and the government’s adverse activity,” Haupt says, “And it’s pretty clear from statements I’ve seen reported in the press both by the governor and by other government officials, that there’s a pretty clear connection.”

But Haupt points out that even if there is a connection that shows Florida lawmakers retaliating against Disney, it doesn’t definitely mean it’s constitutionally relevant and courts might still not pay attention to it even if it was challenged by the company.

“There’s two cases where the Supreme Court of the United States has gone in opposite ways when they look at these kinds of cases,” Haupt says. “If you look back at the travel ban case, Trump v. Hawaii, where the Supreme Court generally said it doesn’t matter that Trump was running around, calling this a ‘Muslim travel ban.’ He had the authority, under the Constitution, to Regulate this for immigration and national security reasons. This was an appropriate executive activity.”

In September 2017, President Donald Trump signed Presidential Proclamation 9645, which restricted travel into the United States by people from several nations, or refugees who didn’t have valid travel documents. Hawaii, along with several other states and groups, challenged the proclamation, after citing a variety of statements made by the president and other administration officials, arguing that the proclamation and the orders made by the president were motivated by anti-Muslim animus.

The US District Court issued a preliminary injunction to prevent the ban from going into effect, believing the plaintiffs were likely to succeed in their argument that the proclamation violated the Establishment Clause of the First Amendment to the United States Constitution and exceeded the president’s powers under the Immigration and Nationality Act.

The injunction was affirmed later by the US Court of Appeals for the Ninth Circuit. But shortly after, the Supreme Court reversed the Court of Appeals saying the plaintiffs did not have “likelihood of success on the merits” on either their INA or their Establishment Clause.

“On the other hand, there was a case that was decided, at roughly the same time, about a cake baker,” Haupt says. “It’s called “Masterpiece Cakeshop.” They were also outside statements that did matter. So, it kind of depends on how courts would deal with these outside statements.”

Using a very narrow reading of the facts of the case, the Supreme Court on Monday ruled 7-2 in favor of a Colorado baker who refused to make a wedding cake for a same-sex couple.  Photo by iStock.

Masterpiece Cakeshop v. Colorado Civil Rights Commissionbetter known as the “gay wedding cake” case, was a case involving a religious baker, Jack Phillips, who refused to sell a cake to a same-sex couple celebrating their out-of-state wedding, The Atlantic reports.

When the Supreme Court took up the case it looked at whether the owners of public accommodations could refuse certain services based on the First Amendment claims of free speech and free exercise of religion. The High Court concluded that Phillip’s religious justification for his refusal to serve the couple by the free exercise clause was violated by the Colorado Civil Rights Commission.

Another question remains on whether Disney can argue that Florida lawmakers quickly dissolving its theme park’s self-governing rights is a clear connection of the state retaliating against the entertainment giant.

“They [Disney] can say, ‘Look, this was really close in time and that makes it more likely that it was actually targeted at our message.’ But again, you still have the same problem whether potentially the court will even pay attention to that or not. If it falls in the travel ban bucket or if it falls in the Masterpiece Cakeshop bucket.”

For media inquiriesplease contact Shannon Nargi at s.nargi@northeastern.edu or 617-373-5718.

Leave a Comment