Ron DeSantis’s Orwellian Redefinition of Freedom
Disney’s lawsuit will put the Florida governor’s understanding of freedom to the constitutional test. And his position will likely shatter.
Florida Governor Ron DeSantis has long presented himself as a principled champion of “freedom.” In Congress, he was a founding member of the Freedom Caucus. He refers to himself as “governor of the free state of Florida.” And while laying the groundwork for a possible presidential run, he is promoting a book on his approach that he titled The Courage to Be Free.
On Wednesday, Florida’s biggest employer, Walt Disney Parks and Resorts, filed a lawsuit alleging that DeSantis is violating its First Amendment right to freedom of speech. According to the complaint, “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 case will subject DeSantis’s understanding of freedom and what protecting it requires to the crucible of constitutional law. And his position is likelier to shatter than to withstand the heat.
“The facts and law in this case are not good for Governor DeSantis,” former Representative Justin Amash, who was also a member of the Freedom Caucus, said on Twitter. “He and his allies took action not to make all companies live by the same rules but instead to target Disney with harsh conditions that apply to Disney alone—all as punishment for constitutionally protected speech.”
The controversy began in 2022, during DeSantis’s ultimately successful push to pass the Parental Rights in Education Act, which opponents have disparagingly dubbed the “Don’t Say Gay” law. Among other things, the law forbids public schools from engaging in any classroom discussion or instruction about sexual orientation or gender identity prior to fourth grade.
After legislators passed the law, as it awaited DeSantis’s signature, Disney employees protested the company’s silence, prompting Disney’s then-CEO, Bob Chapek, to speak publicly against it.
Soon Disney was declaring, “Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that”––a lawful stance that DeSantis treated as illegitimate. “It is one thing to take a position opposing the bill, even if by doing so the company is perpetuating the left’s false narratives,” he wrote in his book. “But it is quite another for Disney to pledge to work to seek the repeal of legislation.” With that promise, “supposedly family-friendly Disney was moving beyond mere virtue signaling to liberal activists,” he continued. “Instead, the company was pledging a frontal assault on a duly enacted law of the state of Florida.”
That formulation is strange. Opposing a bill’s passage and favoring a law’s repeal are equally legitimate civic actions. Neither is equivalent to violating, let alone assaulting, the law. Yet according to Disney’s lawsuit, DeSantis has been retaliating against the company for its lawful advocacy. For example, when Disney World was created, the Tallahassee Democrat explains, “neither Orange nor Osceola counties had the services to provide power and water to the remote 25,000-acre property.” So in 1967, “the Florida Legislature, working with Walt Disney World Co., created a special taxing district—called the Reedy Creek Improvement District—that would act with the same authority and responsibility as a county government,” and allow Disney to levy extra taxes on itself to improve roads and other infrastructure. After Disney spoke out against DeSantis’s bill, the governor and his allies eliminated that arrangement. Of course, Florida is within its rights to reconsider and end any of the special districts it has created for businesses––but the Constitution does not permit the state to take even otherwise lawful actions in retaliation for engaging in protected speech.
Not only is the ability to engage in political speech without being punished by the state a right that the Supreme Court has recognized for individuals and corporate entities alike; it is at the core of the First Amendment’s freedom-of-speech guarantee. But DeSantis has described an alternative view of what it means for the state to protect freedom: all the usual things, plus shielding the public from the left’s activism.
To understand his position, consider remarks he delivered last week at the College of Charleston, during a stop on his book tour. For long stretches of his speech, it was easy to mistake him for a conventional supporter of expansive freedoms. “We’re No. 1 for economic freedom, we’re No. 1 for education freedom, we are No. 1 for parental involvement in education, we’re No. 1 for public higher education … and famously––and as long as I’m around, permanently––we have no state income tax,” he bragged of his record in Florida. “None of that would have been possible had we not stepped up to the plate when COVID arrived on the scene. When the world went mad, when common sense suddenly became an uncommon virtue, it was Florida that stood as a refuge of sanity and a citadel of freedom.”
As a Californian, I understand that pitch’s appeal. Despite better food, weather, and scenery, and fewer shark attacks, lightning strikes, and predatory reptiles creeping around public spaces, my state is losing residents while Florida gains them. Our dearth of freedom to build new dwellings has burdened us with punishing housing costs and immiserating homelessness. Our dearth of educational freedom consigns kids from poor families to failing schools. Our higher-than-average taxes do not yield better-than-average public services or assistance. And during the coronavirus pandemic, far from being a refuge of sanity, California responded with a lot of unscientific overzealousness, like the needless closure of beaches and parks.
Precisely because I value freedom highly, I was alarmed by other parts of DeSantis’s pitch, where he construes what it means for Floridians to be free so expansively that he winds up advocating for the use of state power in ways that would stymie the freedom of his ideological opponents. As DeSantis put it in his College of Charleston speech, the people of Florida are on his side insofar as they want an economy where businesses “focus on their core mission of providing whatever service or whatever they’re doing in the economy and not getting mired into woke political activism.” He specifically attacked Disney and a recent Bud Light campaign for aligning with LGBTQ activists in the culture wars.
This line on corporations echoed his perspective in his book. “Woke capital exerts a pernicious influence on society in several ways,” DeSantis wrote. “Of course, it is a free country, and they have the right to take these positions.” Of course. But onstage in Charleston, he didn’t just complain that “you have different institutions in society that are trying to advance the woke agenda.” “We fight it everywhere we can,” he said of wokeness in Florida, explaining: “I don’t think you have a truly free state just because you have low taxes, low regulation, and no COVID restrictions, if the left is able to impose its agenda through the education system, through the business sphere, through all these others. A free state means you’re protecting your people from the left’s pathologies across the board.” I’d describe that as an anti-woke nanny state, not a state that values and protects freedom.
Neither my freedom nor yours requires the state to protect us from an entertainment company urging the state legislature to repeal a bill, or a beer company putting a trans influencer on a can, or whatever else DeSantis regards as a pathology. Indeed, we remain free in part because the First Amendment prevents the state from engaging in that sort of viewpoint discrimination.
In Charleston last week, DeSantis questioned the legitimacy of seeking change through civil society rather than elected legislatures, a practice that is inextricable from life in a liberal democracy. According to DeSantis, the “constitutional” way to change policy is, “You run elections and you can put people [in office] to influence policy.” Woke companies, in contrast, “know their policies would never be able to pass muster at the ballot box. So what they’re trying to do is an end run around the constitutional system, use their economic power to impose these policies outside the normal system,” with no electoral recourse. “If you want to preserve freedom in this country,” he said, “we need to be fighting back against woke capital.”
But working for cultural change through nongovernmental institutions and associations is not an end run around the constitutional system––the Constitution explicitly protects our ability to associate with whomever we like and to speak collectively on behalf of or against any policy or practice, whether as Disney or Hobby Lobby, the ACLU or the NRA, Dylan Mulvaney or Matt Walsh. In our constitutional system, politicians who don’t like that cannot lawfully do anything about it.
DeSantis is not alone among governors in transgressing such boundaries. For example, as David French complained last month in his New York Times column, ”Gov. Gavin Newsom announced that the State of California would not renew a multimillion-dollar contract with Walgreens—not because Walgreens had failed to comply with its contractual obligations but rather because it had responded to Republican legal warnings and decided not to dispense an abortion pill in 21 red states. Newsom used his political power to punish a corporate position he opposed.”
What’s more, denying that corporations have free-speech rights to influence the political process was coded as progressive until very recently. Much of the left was apoplectic in 2010 when the Supreme Court ruled in Citizens United that corporations have the same First Amendment rights that individuals do and that “there is simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations.” Regardless, that is the law of the land. In spite of it, DeSantis and his allies are treating opposition to their agenda as if it legitimates punishment. In doing so, they betray a dearth of confidence in their supposed conviction that we’re best off with freedom and shrink any faith I had in their willingness to respect mine.