Isn't the Florida bill stripping Disney of its special tax district a case of simple viewpoint discrimination?

AP Photo/Wilfredo Lee

I’m phrasing the headline as a question in case I’m missing something that would change the equation. But as far as I’m aware, this is where we are:

Decades ago, Disney got a sweetheart deal to end all sweetheart deals from the government of Florida, granting it almost total autonomy over the huge tract of land on which DisneyWorld now sits. It’s a de facto People’s Republic of Mickey Mouse. In return, Florida gets lots and lots and lots of jobs, economic activity, and tax revenue.

For decades, no one said boo about it. DeSantis became governor in 2019 and also didn’t say boo. To the contrary, he kept up the practice of special favors for Disney by signing a terrible anti-tech bill with an inexplicable exemption for companies that own theme parks. Meanwhile, Disney kept up its traditional largesse towards Florida Republicans, donating nearly a million bucks to the Florida GOP, more than half a million to GOP Senate candidates, and $50,000 to DeSantis during the 2020 cycle.

A few months ago, DeSantis signed the “don’t say gay” bill into law despite Disney having lobbied against it. Disney’s LGBT employees and their allies pressured the company to throw its weight around by speaking out against the law, which Disney eventually did. The company also suspended political donations in Florida. DeSantis responded by slamming the company for carrying on a “woke” double standard by doing business with a gross human-rights abuser in China while feigning offense at far lesser affronts here at home. Which is true, and fair enough.

That should have been the end of it. Republicans won. They got their law. Nothing left to prove.

But then things took a turn. DeSantis started looking around for ways to use state power to punish Disney for opposing the “don’t say gay” law. First stop: Getting rid of that bizarre theme-park exception in the anti-tech law, which never should have been there in the first place.

That’s small potatoes since no one expects the anti-tech law to survive in court anyway. Much more serious is DeSantis pushing to repeal DisneyWorld’s original sweetheart deal granting it the power to essentially govern itself, another special privilege under Florida law that Disney never should have received. If DeSantis had barreled into office on day one as governor and proclaimed, “It’s insane that we’re letting a corporation operate as a sovereign state,” who could have disagreed? But he didn’t do that. He had no problem with Disney’s special exemption so long as the company didn’t give him and/or his party any political flak.

This morning a bill repealing Disney’s special tax district passed the Florida Senate and is expected to pass the House. And seemingly no one disputes that the only reason it’s happening is because a private actor dared to criticize the governor’s pet culture-war legislation. Listen to this guy, who’s all too eager to condition how the state treats Disney on whether it “behaves” or not, which is populist-speak for “exercises its First Amendment rights in a way that displeases me.”

Charles Cooke is a DeSantis fan who’s written multiple pieces defending him at NRO over the past few years but he seems mortified by what’s happening here. By all means, eliminate Disney’s special tax district for sound fiscal or civic reasons, says Cooke. But doing so in the context of a war of words over “don’t say gay” makes it painfully clear that this is a case of the ruling party using state authority to carry out a political vendetta.

[A]dvocates of further retribution tend to switch gears and contend that Walt Disney World is not “entitled” to the setup it enjoys in Florida, that no law is guaranteed to “last forever,” and that Disney’s special status, granted before 1968, was probably due for “reconsideration” anyway. In a vacuum, these arguments are all defensible, but in context, they represent an extreme form of gaslighting. Until about a month ago, Walt Disney World’s legal status was not even a blip on the GOP’s radar. No Republicans were calling for it to be revisited, nor did they have any reason to. Yes, Disney isn’t “entitled” to its arrangement. But Disney wasn’t “entitled” to it in 2012, 2002, 1992, 1982, or 1972, either, and yet, amazingly enough, the legislature showed zero interest in rescinding it when given the opportunity on those occasions. That it’s doing so now is ugly. That it’s pretending that it’s doing so out of a concern for “good government” is grotesque…

A good question to ask in politics is, “And then what?” And so it is here. I have no doubt that, if they really want to, Governor DeSantis and the Republican majorities in the state legislature can revoke Walt Disney World’s special status, and I have no doubt that, in the short term, they might profit politically from doing so. But then what? Does the curriculum bill become even more the law? Of course not. In all likelihood, all that happens is Florida’s zoning policy gets a little worse, the legislature elects to tie itself up for years in extremely complex and costly litigation meant to untangle the state from Disney, and other large businesses note for the record that Florida’s heretofore-admirable commitment to solving big and complicated problems should henceforth be regarded with an asterisk.

No one believes that Disney would be facing this reckoning if it had cheerled the “don’t say gay” bill. Which means the action Florida is taking, although facially neutral, is textbook viewpoint discrimination by the government.

Maybe not *unconstitutional* viewpoint discrimination, though. Disney has no right to its special tax district; that’s a privilege granted to it by Florida, and the state can take privileges away. If Florida can lawfully rescind Disney’s tax district for reasons of tax revenue or good government or a hundred other matters, maybe it can also lawfully rescind the district because the governor’s looking to impress 2024 primary voters by picking a fight with a “woke corporation.” I’ll leave it to legal eagles to say whether there’s a First Amendment issue. But it’s not hard to imagine other privileges that might implicate constitutional questions if they were rescinded for one reason but not for another. I assume a state could eliminate welfare payments entirely if it chose, as welfare is also a privilege rather than a right. But if a state sought to eliminate welfare only for African-Americans, say, that would be a problem.

Likewise, if a governor conditioned welfare payments on the recipient signing a statement pledging that he won’t criticize the governor’s climate-change agenda, that would be — or should be — a problem. He’d be abusing state power by dangling a privilege to coerce silence by a potential critic. Isn’t DeSantis doing the same thing here with Disney by taking its privilege away? Bear in mind that, per Cooke, while the terms of Disney’s deal with the state of Florida are unusually generous, there are more than a thousand other special tax districts in the state that are technically “independent,” including Orlando International Airport. Only Disney’s district requires immediate action by the Florida legislature, though, because only Disney is exercising its First Amendment rights in a way that’s annoyed the governor. I’d be curious to see what a court would do with that, when the state’s action is neutral in the abstract but its purpose is clearly to penalize a private entity for free speech.

There’s a famous quote from a former president of Peru that goes like this: “For my friends, everything. For my enemies, the law.” That line succinctly captures the capriciousness of a corrupt system in which your legal jeopardy depends less on your behavior than whether you’re in good favor with the ruler. It also captures DeSantis’s attitude towards Disney. When Disney was his “friend,” it got a special exemption from the anti-tech bill and its special tax district was untouchable. Now that it’s become his “enemy,” the exemption is gone and its autonomous district is on the way out. In the Trump-era GOP, all of this gets filed under “he fights!” and “big punitive government is good so long as it’s punishing the right people.”

I’ll leave you with this. I hope it doesn’t backfire on him at home.