It was freedom of speech that drew Mickey Mouse into the fight of his life. Way back in March 2022, when the Florida state legislature passed what has become known as the “Don’t Say Gay” law, the powers that be at The Walt Disney Company did not want to make too big a fuss about it.
Library of Congress / CC0
Walt Disney, seated, examines film with Mickey Mouse perched on his right arm, 1935
Bob Chapek, then the company’s chief executive officer, released a memo to staff on March 7, the day before the law was passed in the state senate, saying Disney “unequivocally” stands with its LGBTQ+ employees, even though it was not publicly condemning the bill. Chapek argued that “corporate statements do very little to change outcomes or minds. Instead, they are often weaponized by one side or the other to further divide and inflame.” He added: “I do not want anyone to mistake a lack of a statement for a lack of support. We all share the same goal of a more tolerant, respectful world. Where we may differ is in the tactics to get there.”
That sparked a huge backlash from Disney employees and others, some of whom noted that The Walt Disney Company had given campaign donations to all the bill’s sponsors and co-sponsors. “I am deeply angered by Disney thinking it can look the other way for this hateful ‘Don’t Say Gay’ bill,” chastised documentary filmmaker Abigail Disney, granddaughter of Walt’s brother, and company co-founder, Roy. “[I]t takes a seriously flawed moral compass to not see that funding the people who wrote and passed it is anything less than supporting their ugly agenda.”
“It is disheartening that Disney, one of the world’s most successful brands with massive resources and a global platform, failed to take any action to help prevent the passage of this bill,” wrote the executive board and QueerTAG Committee of The Animation Guild, which represents Disney workers. “It is time for corporations who continuously seek to engage the LGBTQ+ community to prove that their intentions are not disingenuous by backing up their words with definitive actions. To quote one of your own properties, ‘With great power comes great responsibility.’ You have failed that test in Florida.”
That reference to Spider-Man got Chapek’s Spidey sense tingling. On March 9, the day after the union’s rebuke, he capitulated, telling shareholders that he had called Florida Governor Ron DeSantis “to express our disappointment and concern that if [the] legislation becomes law, it could be used to unfairly target gay, lesbian, nonbinary, and transgender kids and families.”
DeSantis, who believes that stoking culture war resentments can win him the presidency, responded to this tepid criticism with great indignation: “If Disney wants to pick a fight, they chose the wrong guy,” he said in a fundraising email to supporters. And with that, DeSantis declared war on Disney, one of his state’s largest businesses, which last year alone paid more than $1.1 billion in state and local taxes. He has tried to usurp the company’s ability to self-govern, threatened to build a prison as its next-door neighbor, and announced plans to subject Walt Disney World (but not other large, state-based theme parks, including Universal, SeaWorld, and Legoland) to new ride-inspection rules.
Yet the evidence is overwhelming that it is DeSantis and not Disney who has picked the wrong fight, one he is destined to lose. After the Florida governor seized control of Disney’s oversight board, the company invoked a rare legal clause to strip the board of much of its power. State lawmakers failed to pass the discriminatory and retaliatory ride inspections. And Disney is now suing DeSantis and other Florida officials in federal court for their “relentless campaign to weaponize government power against Disney in retaliation for expressing a political viewpoint.”
It is a lawsuit that Disney—Mickey, if you will—is likely to win. Because while the First Amendment affords folks like Ron DeSantis every right to make fools of themselves, it does not allow them to punish others for expressing an opinion. As Mickey himself once said, “I can’t help you with revenge.”
The “Don’t Say Gay” law that DeSantis signed prohibits “classroom discussion about sexual orientation or gender identity” in Florida in kindergarten through third grade; it was later expanded to limit what can be said in all grades. The law is unnecessary, unwise, and of dubious legality. As Edward Swidriski, assistant counsel for the American Association of University Professors, has written: “By opening the door to arbitrary and discriminatory enforcement against speech that favors or promotes the inclusion and acceptance of LGBTQ+ individuals, the law arguably runs afoul of the First Amendment’s stringent prohibition on viewpoint discrimination and imposes an unconstitutional chilling effect on disfavored speech.”
While the First Amendment affords folks like DeSantis every right to make fools of themselves, it does not allow them to punish others for expressing an opinion.
But casual disregard for the protections of the First Amendment is integral to the ethos of people like DeSantis, who has essentially admitted, repeatedly, that he wants to punish Disney for expressing an opinion he would rather not hear.
In his book, The Courage to Be Free: Florida’s Blueprint for America’s Revival, published in February, DeSantis crows about going after Disney’s special tax district (one of many such arrangements in the state) because of the company’s “support of indoctrinating young schoolchildren in woke gender identity politics”—an egregious mischaracterization of its actual, meekly stated position. In a Wall Street Journal op-ed accompanying the book’s release, DeSantis referred to his actions against Disney as an attempt to “fight back” against the company’s “woke ideology”—in other words, it’s political speech.
Scott Wilkens, senior counsel at the Knight First Amendment Institute, told Washington Post columnist Greg Sargent that observers “often have to make inferences” about the motives of government officials. But in this case, there are “pretty clear statements from Governor DeSantis that he is seeking to punish a corporation for its speech.”
According to the lawsuit, “A targeted campaign of government retaliation—orchestrated at every step by Governor DeSantis as punishment for Disney’s protected speech—now threatens Disney’s business operations, jeopardizes its economic future in the region, and violates its Constitutional rights.” The company calls the government’s conduct “patently retaliatory, patently anti-business, and patently unconstitutional.”
It is also patently dumb.
Disney World currently provides some 75,000 Florida jobs, brings in fifty million annual visitors, and generates billions of dollars in economic impact. Earlier this year, the company announced plans to spend some $17 billion on Disney World expansion over the next decade, which would create 13,000 new jobs; it now purports to be freshly “evaluating where it makes the most sense to direct future investments.” In May, the company scrapped plans to build a new $1 billion campus in central Florida and relocate 2,000 employees from Southern California.
Picking a fight with Disney is in every conceivable way antithetical to the interests of the people of Florida.
Picking a fight with Disney is in every conceivable way antithetical to the interests of the people of Florida. The only purpose it serves is to help DeSantis secure campaign contributions from people so gullible and misguided that they think he would make a good President.
The First Amendment prohibits the government from “abridging the freedom of speech, or of the press.” That means it cannot use its full might and authority to punish people or institutions for the things they say. Disney, in its lawsuit, says it is “fortunate to have the resources to take a stand against the State’s retaliation” on behalf of smaller businesses and individuals who can’t. “In America, the government cannot punish you for speaking your mind.”
Rather than offering a blueprint for being free, as his book title claims, DeSantis actually is building a society in which the government controls everything. It gets to decide what books children can read and what parts of the nation’s history they can learn about. It is seeking to outlaw abortions after the sixth week of pregnancy. Florida even has a law that allows the government to take custody of children who are receiving gender-affirming care, a decision that rightly belongs with parents and families.
And on top of it all, DeSantis and the state of Florida have the audacity to violate Mickey’s right to say exactly what is on his mind: “We got ears, say cheers,” for instance, or “Laughter is timeless, imagination has no age, and dreams are forever.” Or even “We don’t like your stupid law.”
Way to go, Disney, for fighting back. You are going to win this one, thanks to the First Amendment.
Updates: As predicted in this space (“Lies, Damn Lies, and Social Media,” April/May 2023 issue), the U.S. Supreme Court has ruled in favor of social media companies against lawsuits alleging that they bore culpability for terrorist propaganda posted on their sites. But the court sidestepped the question of whether Section 230, the law that shields tech companies from lawsuits over content posted by users, is Constitutional, leaving that for another day. Also, as predicted (“Does the First Amendment Allow Bias?,” February/March 2023 issue), the court’s conservative majority has ruled that providers of expressive services, including wedding websites, may discriminate against LGBTQ+ customers.