Jacob Hibbard and Richie Angel: Florida’s war with Disney does not reflect conservative values

Utah leads the way. And lately, so does Florida. Two weeks ago, following the Walt Disney Company’s pushback against the Florida Parental Rights in Education bill, Florida Gov. Ron DeSantis signed a bill that stripped Disney of special self-governing power over its Orlando-based parks.

This move by the Florida state government has been met with wide praise from many on the right, including conservative commentator Ben Shapiro, who assessed that Disney had “play[ed] stupid games” and “[won] stupid prizes.”

We, too, support the Parental Rights in Education bill and are troubled by Disney’s willingness to use its content and lobbying power to advocate for ideas that we find objectionable. Furthermore, it is bad policy for states to give special tax incentives and loopholes to certain corporations or groups. The government should be upholding equality under the law, not picking winners and losers through tax policy.

But, as conservatives, we cannot support this latest move by the Florida Legislature. Florida is not removing Disney’s special status because it suddenly realized it shouldn’t be picking winners and losers in its tax laws. The Legislature took action to punish Disney for wrongthink. This is not a principled effort to correct tax policy — it is retaliation.

How do we know that it is retaliatory? When asked whether DeSantis might change course if Disney abandoned its “woke” agenda, Florida Lt. Gov. Jeanette Marie Nuñez replied, “Sure!” and directly tied the state’s rescission of the special tax status to Disney’s “very public agenda.”

The ability to engage in political speech without fear of government reprisal is the very core of the First Amendment. Government exists to secure our God-given natural rights from external threats of force, not crack down on corporations for opposing state legislation. It is immoral for the government to punish anyone, including Disney, for merely expressing their political views.

Until recently, the right understood and defended these principles, from college campuses to attacks on private businesses like Masterpiece Cakeshop and Hobby Lobby. Unfortunately, this history only adds to the already deafening irony that those on the right who are most loudly cheering on the Florida government have also been the loudest voices in decrying “censorship” by Big Tech platforms such as Facebook and Twitter.

Somehow, a private company determining its internal rules is dangerous censorship, while actual government retaliation is praiseworthy.

Political retaliation for engaging in constitutionally protected activities is not only bad policy, but also unconstitutional. The First Amendment declares Congress cannot infringe on free speech and has been expanded to protect against infringements on free speech by state and local governments. In Speiser v. Randall (1952), the Supreme Court held that a state could not deny tax exempt status without evidence of criminal speech. Later, in Perry v. Sindermann (1972), the court held that the government cannot deny benefits on a basis that infringes constitutionally protected interests like free speech, as “this would allow the government to ‘produce a result which [it] could not command directly.’”

In its action against Disney, Florida is removing a benefit from Disney because of its constitutionally protected speech and signaling that it might back down if Disney abandons its woke views, a result which the state could not command directly.

And while true that Florida granted Disney a special status and could therefore in theory withdraw such permission at any time, the Supreme Court has made abundantly clear that otherwise permissible state action becomes unconstitutional if done with improper intent. See for example Washington v. Davis (1976), Hunter v. Underwood (1985), and Shaw v. Reno (1993). Therefore, for more than one reason, this bill is almost certainly going to be struck down.

As such, unconstitutional retaliation only stands to compromise our principles and distract from the central issue. By turning tax codes into political weapons against political opponents engaging in constitutionally protected speech, the right would expand the misuse of government power and contribute to an already daunting sense of fear of expressing unpopular political views.

So yes: Play stupid games, win stupid prizes. The right is playing a stupid game. Unfortunately, all of us stand to pay for the prize.

The Utah Legislature flirted with these games when it passed SB228 in 2021, which infringed on the private property and associative rights of social media companies. Rightly, Gov. Spencer Cox vetoed it.

Utah should lead the way and refuse to play.

Jacob Hibbard is a second-year law student at Brigham Young University Law School and resident of Highland.

Richie Angel is a deputy district attorney in Southern California. He has a bachelor’s degree from Brigham Young University and a law degree from University of California, Irvine.