A few thoughts on the state’s soft-authoritarian temper-tantrum.
1. I don’t assert that the revocation of Disney’s special district violates the First Amendment in a legally actionable way. Nor do I think revocation of a privilege constitutes censorship. But what’s at issue is more than “a culture of free expression,” i.e., an environment in which private actors do not retaliate against other private actors for their speech. (Criticism does not count as retaliation, by the way.) This was a use of state power to punish private speech.
That there might have been reasons to revoke the district, and other such districts, prior to Disney’s criticism of Florida’s school-curriculum law does not change the retaliatory nature of the revocation. On this point, Ryan Ellis’s defense of Florida is irrelevant. Ellis writes that the revocation is both “arguably a repeal of corporate welfare and backwater cronyism” and “a punch in the nose to stop a bully.” It can certainly be motivated by both aims, but the second aim is enough on its own to raise the free-speech concern. (And if I may: It’s curious to read a call for “tak[ing] political maximalism out of every aspect of our lives” four paragraphs after its author has announced that “it is high time to stick a head on a pike.”)
2. The private speech in question is that of a corporation (and its leader) rather than that of an individual. Some corporations, particularly social-media companies, are pilloried by rightist populists for their alleged or real suppression of the speech of individuals. I find the arguments for treating these platforms as common carriers unsound for reasons that Charles C. W. Cooke has given.
But that debate is not relevant today. Disney is not running a social-media platform. Disney has not retaliated against employees who disagree with its stance. It has expressed a criticism and done some lobbying in a community in which it has a massive economic and labor presence. And it shall now be punished for it. That is the real bullying.
3. The rightist-populist attitude toward corporations has tended to blur the distinction between cultural pressure and formal state power; corporations are seen as quasi–state actors requiring a state response. But this episode puts the lie to that conflation. So — in a much more spectacular form — does the Chinese Communist Party’s persecution of Jack Ma. There is a hard distinction between formal legal power and even very strong forms of economic influence or cultural pressure. Private associations, even the wealthiest and most influential, can be destroyed in a day if the makers of the law decide to destroy them. When we endorse the idea that the state may take retaliatory measures against individual or collective actors whose speech it dislikes, we start down an intellectual road whose end point is tyranny.
4. There are surely times when we should want private associations, including corporations, to speak and lobby. You can think Disney’s stance on the curricular law was wrong, foolish, satanic, whatever. But would you have wanted private associations and corporations to take public stances in favor of racial equality during the civil-rights era? Would you like private associations and corporations to oppose the Russian invasion of, atrocities upon, and incipient cultural genocide against Ukraine? Because if you want things like that to happen, you have to accept that some entities will sometimes say things you don’t like. It is not possible to set up a legal structure that permits untrammeled, unintimidated speech by corporations and other associations only when that speech is socially valuable, because no state entity (or private entity, for that matter) will possess infallible judgment as to what is valuable. Your only option is to let individuals and associations speak as they see fit, trusting further speech and debate to prune away bad ideas by subjecting them to the greatest possible number of possible critics.
5. It will be interesting to see whether cheerleaders of Florida’s vengeance continue to speak of “conscience rights.” If so, I will not be able to take them seriously. What they actually believe in are conscience rights for those whose conscience agrees with theirs.