Florida’s Disney district crackdown may violate First Amendment, legal experts say

One law professor said if the bill was a direct result of Disney’s political speech, it’s ‘highly likely to be unconstitutional.’
The newly painted Cinderella Castle at the Magic Kingdom at Walt Disney World is seen with the crest to celebrate the 50th anniversary of the theme park on Aug. 30, 2021, in Lake Buena Vista, Fla.
The newly painted Cinderella Castle at the Magic Kingdom at Walt Disney World is seen with the crest to celebrate the 50th anniversary of the theme park on Aug. 30, 2021, in Lake Buena Vista, Fla. [ JOHN RAOUX | AP ]
Published April 23, 2022|Updated April 23, 2022

In four days, the proposals went from drafts to law.

At Gov. Ron DeSantis’ urging, Florida legislators sped this week to pass two bills stripping The Walt Disney Co. of certain special privileges, which DeSantis signed Friday.

The ultra-fast maneuver was a whiplash response to Disney’s public opposition to Florida’s recently passed Parental Rights in Education law, or the so-called “don’t say gay” bill.

It was also, experts said, legally dubious.

The more high-profile of the two Disney bills eliminates the company’s Reedy Creek Improvement District, which for more than 50 years has granted it broad powers of self-governance over its Disney World property, similar to being its own county. The new law dissolves that special district, and five others, on June 1, 2023.

During the bill-signing Friday in Hialeah Gardens, DeSantis took a victory lap, referencing Disney’s position against the earlier education bill.

“You’re a corporation based in Burbank, Calif., and you’re gonna marshal your economic might to attack the parents of my state?” he said. “We view that as a provocation, and we’re going to fight back against that.”

But some legal experts say the move could run afoul of the First Amendment.

“Disney obviously has no right to have a business improvement district, but to take away something like that based on speech, that strikes me as highly likely to be unconstitutional,” said Daniel Greenwood, a law professor at Hofstra University in New York who specializes in corporate speech.

The bills’ swift approvals are also part of a broader pattern of DeSantis getting his way with the Republican-held Legislature that has transparency advocates worried about the checks and balances system in Florida.

‘Punishing’ Disney?

Corporations have First Amendment rights virtually the same as individual Americans, crystallized by the famous Citizens United Supreme Court decision in 2010. In that case, the court ruled that companies could make unlimited campaign contributions because the checks are a form of free speech.

Adam Winkler, a University of California Los Angeles professor who’s written a book on corporate civil rights, said he expects Disney to raise the First Amendment in any lawsuits.

“The Supreme Court has said the government cannot take special benefits away for improper reasons,” he said, adding that this new law would be like prohibiting people from receiving public assistance checks if they dislike Donald Trump.

Walt Disney World did not respond to two emails asking if it planned to file suit.

In response to an email asking about potential legal issues, DeSantis spokesperson Christina Pushaw said: “The assertion that a single corporation has a First Amendment right to its own autonomous government is simply absurd.”

“Gov. DeSantis has consistently supported a more level playing field for all businesses in Florida,” she added. “It is not ‘retaliatory’ to pass legislation that gets rid of carve-outs and promotes a fairer environment for all companies to do business.”

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Related: DeSantis, Florida Republicans talk like they’re divorcing big business. Are they?

Republican legislative leaders have similarly maintained that jeopardizing Disney’s special district is not designed to punish the company, but to remove a sweeping special privilege that should have never existed in the first place.

Rep. Randy Fine, R-Palm Bay, who sponsored the House version of the special districts bill, said Thursday on CNBC that Disney’s district amounted to “crony capitalism” that ran afoul of the free market.

“When Disney kicked the hornet’s nest several weeks ago, we started looking at special districts,” he said. “This is something that makes sense to do in general but because of the way Disney has behaved, there’s now the political will to do it.”

As part of its opposition to the education bill, Disney announced a freeze to all its Florida political contributions.

In addition to Reedy Creek, whose powers are greater than the typical special district, the new law would also dissolve five other special districts around the state created before 1968. According to a state list, there are roughly 1,800 others that would not be impacted, including those used by the retirement community and Republican voter mecca, The Villages.

If the district is officially dissolved, Orlando-area taxpayers could be strapped with hundreds of millions in debt accrued by Disney. But in a statement Friday, DeSantis said taxpayers shouldn’t expect any increases and that his office will be proposing “additional legislation.”

Looking ‘under the hood’ of corporations

DeSantis had warned some of Florida’s most powerful companies at a Florida Chamber event late last year not to display “corporate wokeness,” or else he would “look under the hood” of their operations.

DeSantis has demonstrated on multiple occasions his ability to use political force to get his priorities passed.

Related: DeSantis embraces Disney battle as part of 'fighter' political persona

The Republican governor, who is running for reelection and is widely thought to be eyeing a 2024 presidential run, backed an effort to take certain school districts out of the running for a pot of state funding if they had previously implemented mask mandates against state policy. He publicly clashed with Republican Senate President Wilton Simpson over an Everglades bill, and so far has declined to endorse Simpson’s bid for agriculture commissioner despite being asked by reporters while Simpson stood next to him.

And with the state’s once-in-a-decade redrawing of congressional districts, DeSantis stepped in to offer his own map proposal and then vetoed the Legislature’s map after it didn’t follow his model, saying the Legislature’s plan improperly prioritized race over the 14th Amendment’s equal protections. Republican lawmakers ultimately ceded map-drawing responsibilities to his office.

Legislators approved DeSantis’ proposed map Thursday during a special session, over shouts of protests from Black Democrats. DeSantis signed it Friday.

“The Legislature (historically) took their functions and their ‘don’t tread on our responsibility’ pretty damn seriously and in this session, at least, it looked like the executive branch reigned supreme,” said Screven Watson, a longtime Tallahassee lobbyist and Democratic consultant.

Pamela Marsh, executive director of the First Amendment Foundation, a nonprofit that advocates for transparency in state government, said both the targeting of Disney and the rapid process used to pass the bills are causes for concern. The Tampa Bay Times and the Miami Herald are members of the organization.

“It has a chilling effect on democracy, it has a chilling effect on the people’s participation in their government,” she said.

“When the three branches of government aren’t separate, that’s a constitutional breach,” Marsh added. “As someone who studies the Constitution, I think it’s really being assaulted from a lot of angles.”