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Sometime in the past decade, that truce broke down. A mass corporate boycott forced Indiana to substantially amend a religious freedom law that critics said would roll back LGBTQ+ rights, Delta withdrew a group discount from the National Rifle Association convention, and CEOs signed open letters protesting abortion bans.
Conservatives are understandably unhappy with the new “woke capital” and eager for their politicians to push back. Hence the ongoing fracas between Disney and the Florida GOP, which started with Disney offering a mild criticism of Florida’s Parental Rights in Education Act (better known to residents of blue states as the “don’t say gay” law) and has now escalated to a lawsuit in which Disney accuses Gov. Ron DeSantis and other state officials of retaliating against the company for its constitutionally protected political expression.
The lawsuit is an excellent illustration of the merits of the old truce: Disney’s criticism of the law achieved nothing except attracting the ire of Republican politicians who were spoiling for a fight. But it is also an excellent illustration of why Republicans keep failing to restore the truce, because they have gone about these fights in the dumbest possible way.
As Disney says in its complaint, the company wasn’t looking for a fight with the Florida government. Disney has many billions of dollars’ worth of important, hard-to-move theme park infrastructure in the state of Florida, and politicians have all sorts of ways to make life unpleasant for captive companies. When progressive employees pressed for the company to weigh in, then-CEO Bob Chapek very sensibly demurred. He belatedly issued a statement only after heavy pressure from internal activists.
Republicans say this is exactly why they need to fight back, because otherwise, managers will just keep giving in to a small but relentless number of activist employees. As a principled matter, I disagree with that argument; there are very good reasons that we do not allow public officials to use their official powers to suppress dissenting viewpoints. But even accepting its logic, Republicans have made a mess of things.
First, they moved to strip Disney of a special privilege the company had enjoyed for decades: the ability to essentially act as the government in the Reedy Creek Improvement District around Disney World. Revoking that privilege can easily be justified as a blow against crony capitalism — but it wasn’t.
“If Disney wants to pick a fight, they chose the wrong guy,” DeSantis said around the time that he signed a law taking over the Reedy Creek Improvement District last year. He gave interviews emphasizing that this was payback for Disney’s political statements.
One can imagine an equilibrium where Florida politicians said such things for the cameras, and then backstage came to a quiet understanding: You stay out of the culture war, we’ll let you run Reedy Creek how you like. Would such a bargain be a tad corrupt? Yes. Would it undermine norms of free speech that ought to be upheld? Also yes.
But American democracy is flexible enough to absorb a certain amount of low-grade line-crossing — at least as long as politicians exercise some restraint, which DeSantis has not. Instead, he had to keep turning the screws for the cameras, most recently suggesting the state might jack up hotel taxes near Disney, add tolls to the roads, or even build a prison there.
Companies enjoy a lot of protections from such retaliation under the First Amendment, and for good reason. Free speech would be effectively impossible if politicians could use their regulatory heft to bankrupt business owners who criticize their policies — or to make them fire outspoken employees. Courts have not been friendly to officials who use their power in this way.
Disney clearly had no appetite for a brawl with the authorities who oversee its multibillion-dollar investment in theme park real estate. Other companies were also spooked. Shortly after Republicans went after Reedy Creek, the Wall Street Journal reported that panicked CEOs were asking themselves how to avoid becoming the next Disney. Chapek was fired by his board eight months after taking a stand.
But DeSantis effectively left Disney no choice other than to pursue its very strong legal case against his antics, and all his bragging about how hard he was sticking it to Disney will provide excellent evidence for the plaintiffs. If DeSantis loses that case, we’re apt to end up with quite a different sort of corrupt deal: one in which everyone who matters understands that this is all just a performance, pantomime attacks that will inevitably get reversed in the courts and will achieve nothing for anyone except the politicians who indulge in it.
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