My Newspaper Sued Florida for the Same First Amendment Abuses DeSantis Is Committing Now
And we won.
Updated at 12:30 pm E.T. on May 2, 2023
In the late 1980s, the fortunes of Nick Navarro, the sheriff of Broward County, Florida, were on the rise. Elected in 1984 and on his way to nearly tripling his agency’s budget, he was also demonstrating a flair for dealing with the media—“P. T. Barnum with a Cuban accent,” said one South Florida defense lawyer. Navarro and his office starred in the inaugural season of Cops, the pioneering Fox reality-TV series, and made national news by clashing with the rap star Luther Campbell—including having him arrested—for sexually explicit lyrics on albums by Campbell’s 2 Live Crew.
Navarro’s relations with the media weren’t universally cordial, however, and spawned a constitutional challenge that may now have profound implications for another publicity-loving Florida politician, Governor Ron DeSantis: It exposes one of DeSantis’s most recent high-profile gambits as a brazen violation of the First Amendment.
On November 17, 1988, a Fort Lauderdale daily, The Broward Review, ran a front-page article that Sheriff Navarro found especially vexing. It was headlined “Navarro Failed to Act on Corruption Warnings,” with the subhead “Broward Sheriff didn’t pursue reports that a Bahamian cocaine trafficker was bribing his deputies.”
The story was the latest in a series the Review had run criticizing the Broward sheriff’s office, the county’s largest law-enforcement agency, and Navarro was fed up. The morning it appeared, he ordered a halt to the 20-year business relationship between the sheriff’s office and the Review, which, along with covering local business and law, had been the chief publishing venue for required public notices of sheriff’s sales and forfeitures. This revenue amounted to thousands of dollars each year—not a fortune, but enough to matter to a small daily.
I was the editor in chief of the Review (later renamed the Broward Daily Business Review) and its sister papers in Miami and West Palm Beach, which were owned by American Lawyer Media, the legal publisher created and run by the journalist and entrepreneur Steven Brill. When I told Brill what Navarro had done, he conferred with his friend Floyd Abrams—the First Amendment litigator who had represented The New York Times in the Pentagon Papers case—and we did the traditional American thing: We sued.
We won in 1990, after a two-day trial in the U.S. District Court in Miami. We were upheld unanimously on appeal to the Eleventh Circuit in Atlanta. Navarro’s appeal to the U.S. Supreme Court was rebuffed.
We won because what Navarro did was plainly illegal. He had used the power of his public office to punish my newspaper for exercising its First Amendment rights.
The parallels between Navarro’s actions and those of the current governor are unmistakable. DeSantis has spearheaded the successful move to withdraw something of value from the Walt Disney Company—its 50-year control of the special taxing district that essentially governs a 25,000-acre Central Florida spread including Disney World—in reprisal for Disney’s vocal criticism of Florida’s Parental Rights in Education Act, assailed as homophobic. With DeSantis, as with Navarro, public authorities withheld a public benefit as punishment for exercising a core constitutional right, and yesterday Disney finally sued.
Even in 1988, the law in this area was neither subtle nor oblique. Brill told me he got the idea of suing the sheriff from his recollections of a class in constitutional law taught by Thomas I. Emerson, a legendary First Amendment scholar at Yale, and Abrams was able to rely on fresh precedent: a 1986 case out of Mississippi—upheld by the Fifth Circuit—that was almost precisely on point. There, the federal court ordered a local governing board to restore public-notice advertising it had yanked from a local newspaper in retaliation for the paper’s criticism of its performance.
The principle wasn’t new even then. In a 1972 U.S. Supreme Court case brought by a fired community-college teacher, Associate Justice Potter Stewart wrote the majority opinion: “For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests—especially, his interest in freedom of speech.”
The main difference between the Navarro case and the DeSantis-versus-Disney affair was Navarro’s refusal to admit to his motives. In deposition, Navarro acknowledged that he had learned of the November 17 article from an aide on the morning it ran, while he was vacationing in the Bahamas. Still, he claimed to have ordered the severing of the business relationship out of concern that the Review’s circulation was too low, even though he could cite no circulation numbers or indications that sales picked up after ads began running elsewhere. (During a break in Navarro’s deposition, the Review’s lead counsel, Abrams, said to me, “Now we know what his defense is—a fabrication.”) Elsewhere, Navarro offered further justifications for what he’d done, telling one Review reporter he ran into in a convenience store, “A man’s got to do what a man’s got to do.”
Unlike Navarro, however, there’s no fabrication or ambiguity when it comes to the recent actions of Florida Governor DeSantis and state lawmakers. DeSantis has proudly denounced Disney for its “wokeness,” in particular its public opposition to the “Don’t Say Gay” law, which severely restricts classroom instruction related to sexual orientation and gender. “I think they crossed the line,” DeSantis said of Disney last spring. “We’re going to make sure we’re fighting back when people are threatening our parents and threatening our kids.”
At a press conference a few weeks later, DeSantis elaborated: “You’re a corporation based in Burbank, California, and you’re going to martial 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.”
The result was a bill, passed by the legislature, to strip Disney of authorization granted in 1967 that allowed it to administer the expanse outside Orlando where Disney World is located.
The money is of a different order of magnitude, but at their core, the anti-Disney moves are illegal for the same reason Sheriff Navarro’s advertising cutoff was illegal: They are governmental actions that punish a private person or entity for exercising constitutional rights.
As Abrams wrote to me, “Florida didn’t have to make any deal with Disney in the first place. It was free to seek to change the terms of it or even abandon it for all sorts of reasons except one: that Disney exercised its First Amendment right to speak out on an issue of public policy. Just as Sheriff Navarro was barred by the First Amendment from cancelling a commercial relationship with a publication because it had criticized him, Gov. DeSantis violated the First Amendment by stripping Disney of a benefit because of its public position on anti-gay rights legislation.”
Likewise, the First Amendment scholar Erwin Chemerinsky, the dean of UC Berkeley’s law school, wrote in an email to me, “The law is clear that retaliation against a person—that includes a corporation—for its speech violates the First Amendment. Gov. DeSantis and the Florida legislature have done exactly that, and said that is what they were doing, in its reprisal against Disney.”
Navarro lost his race for a third term as sheriff and left office in 1993. At the time, some commentators blamed his media notoriety, especially his dustup with 2 Live Crew, for his defeat. (Navarro passed away in 2011.) The Broward Review case seems to have played no role in his downfall. Indeed it did little beyond winning my paper $23,000 in damages and our lawyers hundreds of thousands of dollars in fees.
It would, however, be a delicious sort of irony if the ruling—a response to Navarro’s petulant and vindictive actions—now resurfaces as his most enduring contribution to the rule of law, and affirms anew one of our country’s most basic principles.
This article originally mischaracterized DeSantis’s remarks about Disney’s “provocation” as tweeted rather than spoken.