Opinion | Disney v. DeSantis: How Strong Is the Company’s Lawsuit?

Disney responded, however, by working with the outgoing board to pass a development agreement and restrictive covenants that would greatly limit the authority of the new DeSantis board.

This action led to Florida’s next round of reprisals against Disney. The new DeSantis board voted to nullify the new contracts, and DeSantis himself mused at how the state and the new board might wield its power to punish Disney: “People are like, ‘Well, there’s what should we do with this land?’ So you know, it’s like, OK. People have said, you know, maybe create a state park, maybe try to do more amusement parks. Someone even said, like, maybe you need another state prison. Who knows? I mean, I just think the possibilities are endless.”

The motivations could not be clearer: The State of Florida is targeting Disney because of the company’s constitutionally protected expression. Or, as Representative Randy Fine, a Republican, stated: “You got me on one thing — this bill does target one company. It targets the Walt Disney Company.”

John Gratzianna and O’Hare Truck Service are far from the only plaintiffs to win a First Amendment retaliation case at the Supreme Court. Prohibitions against government retaliation for protected speech are as clearly established as virtually any constitutional doctrine in American law. But what O’Hare does show us as clearly as any modern Supreme Court case is the idea that denying government benefits is a form of government control, and when it’s done for the express purpose of punishing an exercise of constitutionally protected speech, it violates the Constitution of the United States.

At the beginning of this piece, I said that DeSantis should lose, not that he will lose. Court outcomes are never completely certain, but this much is correct: A Disney defeat would represent a dangerous reversal in First Amendment jurisprudence and cast a pall of fear over private expression. In its complaint, Disney wrote, “In America the government cannot punish you for speaking your mind.” That is true now and will remain so if Disney wins its case. If Disney loses, on the other hand, America’s first liberty will be at risk, and the culture wars will escalate out of control.

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