In his excellent discussion of Fight Club Conservatives, my NR colleague Phil Klein quotes Newsweek opinion editor Josh Hammer, who tweets of the State of Florida’s revocation of Disney’s special district: “This is a perfect example of the kind of fighting Right now required: a Right, that is, which is willing to wield political power in muscular fashion to reward friends and punish enemies within the confines of the rule of law.”
Phil replies:
Using the state as a vehicle to reward friends and punish enemies is something that conservatives once excoriated, for good reason, as Gangster Government. Government policy toward individuals and businesses should be neutral to whether or not those in government agree or disagree with a given person or entity. Conservatives cheering on the idea of the government splitting the populace into friends and enemies should also recognize that there are times when they will end up as enemies of the state.
But then again, they might get lucky. Certainly there’s a risk. But maybe the gangsters are your friends — even, if you like, your wise and moral friends devoted to the public good. And maybe they are so politically shrewd that they will stay in power for the rest of your days, and only your enemies, never you, will come to harm. We can’t say for sure.
So it would be worth our time to ask whether there is something wrong with Gangster Government in its essence, apart from whatever consequences it has.
There is: It contradicts the purpose of the rule of law.
Seeing how it contradicts that purpose will in turn allow us to see the vacuity of Hammer’s claimed devotion to the rule of law. It will also allow us to see why the consequences Phil warns of, if they come, will be objectionable.
The law can be written in two ways (that are relevant here). Lawmakers can be partial, making law according to their own interests — financial, partisan, careerist, what have you. Or they can be impartial, making law according to their disinterested consideration of the public interest as they perceive that interest. In any given case, self-interest and public interest might align: What’s good for the public might be good for the lawmakers. But many such cases could be disputed, and authoritarians always argue, sometimes with rhetorical and persuasive success, that everything they do is for the people.
So we should like a way of reassuring ourselves of the law’s disinterest and impartiality that does not depend on the law’s specific content. What we have to look at, instead of content, is time. If a law is made after the lawmakers acquire a definite personal interest affected by the law they are writing, we will be suspicious. If the law is made before that time, we will not be.
That’s rather vague, so let’s apply it to the case at hand. Defenders of Florida’s revocation of Disney’s special district perceive the revocation to be in the public interest. The problem is that it also serves as payback, announced and defended as such, to a prominent critic of a prior legislative act signed into law by the governor. So it is entirely possible to think that Florida’s Republicans are self-interestedly punishing the critic to chill further criticisms of them.
This is of course the case anytime a government takes retaliatory measures against any private individual or entity. The act of revenge by definition establishes the temporal sequence associated with self-interest and partiality. So does the act of rewarding friends (Hammer’s other political goal).
Return now to Hammer’s caveat that punishing and rewarding must happen “within the confines of the rule of law.” Could not any modern totalitarian state say the same? The Russian government’s jackboot upon the domestic critics of its fascistic war against Ukraine has come down according to Russian law. The Chinese government’s censorship of critics and imprisoning of dissidents proceeds according to Chinese law. The regimes in Tehran and Pyongyang have their laws, too. This is not to deny that totalitarians sometimes act outside their own legal systems. But the systems themselves are inherently totalitarian, because the rule of law has been reduced to the rulers’ caprice.
Florida is far from Russia or China or Iran or North Korea. But there is a precise equivalence as to the temporal sequences. First, those who made the law had obvious personal interests. Second, they made laws that served those interests. Whenever and wherever this happens, to whatever degree, great or small, it is no longer clear that the law restrains lawmakers’ self-interested whims rather than being determined by those whims.
That is what puts the “Gangster” in “Gangster Government.” It is also what makes the consequences Phil warns of, should they come, objectionable. Any citizen justly prosecuted for murder, any corporation justly prosecuted for fraud, has in a certain sense become an enemy of the state. But for the state to declare its private-sector enemies in advance and then endow itself with means of punishing them destroys the guarantee of impartiality and disinterest that we wanted to get from the rule of law in the first place.
* * *
A few clarifications about my previous post on Disney and Florida.
First, though I declined to assert that Florida’s retaliation violates the First Amendment in a legally actionable way, I also do not wish to deny it. I simply am not qualified to take a view. David French argues that it does violate the First Amendment. Similarly, my statement that I did not consider revocation of a privilege to constitute censorship should be read as asserting that I see no general analytic equivalence. David cites examples in which the revocation of certain privileges would violate the First Amendment. The argument is worth your time whether or not you agree, as is everything that David writes. I take his views especially seriously in this matter, since much of his legal career was focused on First Amendment law.
Second, I spoke of the “conscience rights” of Disney and its CEO. This invites the reply that Disney was acting out of concern not for its conscience but for its bottom line (in which case it seems to have severely miscalculated). But this is not an adequate reply, for two reasons. One reason is that it’s entirely possible to believe that one’s conscience and one’s interests align, as indeed they often do. (This is parallel to the way in which a lawmaker’s perception of the public good might align with his own interests, but precisely because private actors do not write laws, the argument I have made does not transfer to them.) The other reason is that private actors have every right to speak and lobby in favor of their own interests. This applies to corporations and lobbyists alike. It is irrelevant if, as DeSantis has said, leftists were trying “to subcontract out their leftism” to corporations. Lobbying, calls for boycotts, and so on, however mistaken, are without question acts of political expression. And acts of political expression should never get the actor clobbered by the state.
Third, by way of disclosure, I should note that I own a trivial amount of Disney stock. I did not think of this as I wrote my post because I do not much think of it in general. The cogency of my arguments is unaffected, in truth and in the minds of any readers who are not susceptible to ad hominem fallacies.
Fourth, though I do not look at reader comments (my apologies), I suspect that some readers thought I wrote this sentence in mockery: “You can think Disney’s stance on the curricular law was wrong, foolish, satanic, whatever.” If you read the adjectives jointly, the sentence has that mocking sound. But I did not hear it that way, because I meant the adjectives singly. Each was chosen to summarize a particular negative view of Disney’s stance: “wrong” suggesting the quality of being unethical according to what theologians call “natural reason”; “foolish” suggesting pragmatic error, such as poorly devised means; “satanic” suggesting a biblical view of evil; and “whatever” being “or anything else you like.” It is hard to make oneself understood.
Finally, though it should not matter to your evaluation of what I have written here, perhaps you wonder what I think of Florida’s school law. The answer is that my mind has never quite settled. On one hand, I agree that discussion of sex and of gender identity does not belong in public schools. Believe it or not, I wonder why it is needed at any grade level, particularly when alternative sources of information, parents foremost among them, abound. I’m more or less with Kevin Williamson on all that. But on the other hand, I have never been fully reassured that these laws are not blunt instruments that will bring about harmful unintended consequences. And I do think their promotion has sometimes tended toward bigotry, paradigmatically represented in certain remarks by Governor DeSantis’s spokeswoman (see previous link).