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Utah should not follow Florida’s lead in punishing a company for exercising its free speech rights.

Utah should not follow Florida’s lead in punishing a company for exercising its free speech rights.

(Orlando Sentinel via AP) The Main Street Philharmonic Marching Band performs at Walt Disney World’s Magic Kingdom in Lake Buena Vista, Fla. on Wednesday, Sept. 30, 2020.

Utah leads the way. And lately, Florida too. Two weeks ago, following the Walt Disney Company’s backlash against Florida’s Parental Rights in Education Bill, Florida Governor Ron DeSantis signed a bill that stripped Disney special autonomy over its Orlando-based parks.

This move by the Florida state government was hailed by many on the right, including conservative commentator Ben Shapiro, who rated that Disney had “played[ed] stupid games” and “[won] stupid prices.

We, too, support the Parental Rights in Education Bill and are troubled by Disney’s willingness to use its content and lobbying power to defend ideas we find objectionable. Also, it is bad policy for states to grant special tax incentives and loopholes to certain corporations or groups. Government should stand for equality before the law, not pick winners and losers through tax policy.

But, as conservatives, we cannot support this latest decision by the Florida legislature. Florida isn’t removing Disney’s special status because it suddenly realized it shouldn’t be picking winners and losers in its tax laws. The Legislature moved to punish Disney for bad thinking. This is not a principled effort to correct tax policy — it is retaliation.

How do we know it’s retaliation? When asked if DeSantis might change course if Disney scraps its “wake-up” program, Florida Lieutenant Governor Jeanette Marie Nuñez responded, “Sure!” and directly tied the state’s rescinding of special tax status to Disney’s “very public agenda.”

The ability to engage in political discourse without fear of government reprisal is at the very heart of the First Amendment. Government exists to protect our God-given natural rights from outside threats of force, not to suppress corporations that oppose state law. It is immoral for the government to punish anyone, including Disney, for simply expressing their political views.

Until recently, the right understood and championed these principles, from college campuses to attacks on private companies like Masterpiece Cakeshop and Hobby Lobby. Unfortunately, this story only adds to the already deafening irony that those on the right who applaud the Florida government the loudest have also been the loudest voices speaking out against “censorship” by Big Tech platforms such as Facebook and Twitter.

Either way, a private company determining its internal rules is dangerous censorship, while actual government retaliation is laudable.

Political retaliation for participating in constitutionally protected activities is not only bad policy, but also unconstitutional. The First Amendment declares that Congress cannot infringe on free speech and has been expanded to protect against free speech infringements by state and local governments. In Speiser v. Randall (1952), the Supreme Court held that a state could not deny tax-exempt status without evidence of criminal speech. Later, in Perry v. Sindermann (1972), the court held that the government cannot withhold benefits on a basis that infringes constitutionally protected interests such as free speech, because “to do so would allow the government to ‘produce an outcome that [it] could not order directly.

In its action against Disney, Florida takes advantage of Disney because of its constitutionally protected speech and signals that it could back down if Disney abandons its wide-awake views, an outcome the state could not directly command.

And while it’s true that Florida has granted Disney special status and therefore could conceivably revoke that authorization at any time, the Supreme Court has made it clear that otherwise authorized state action becomes unconstitutional if done. with improper intent. See for example Washington v. Davis (1976), Hunter v. Underwood (1985) and Shaw v. Reno (1993). So, for more than one reason, this bill is almost certainly going to be struck down.

As such, unconstitutional reprisals only undermine our principles and distract from the central issue. By turning tax codes into political weapons against political opponents engaging in constitutionally protected speech, the right would widen the abuse of government power and contribute to an already daunting sense of fear of expressing unpopular political views.

So yeah: play silly games, win silly prizes. The right is playing a stupid game. Unfortunately, we all have to pay the price.

The Utah Legislature flirted with these games when it passed SB228 in 2021, which infringed on the private property and associational rights of social media companies. Appropriately, Governor Spencer Cox vetoed it.

Utah should lead the way and refuse to play.

Jacob Hibard is a sophomore law student at Brigham Young University Law School and a resident of Highland.

Richie Angel is an assistant district attorney in Southern California. He holds a bachelor’s degree from Brigham Young University and a law degree from the University of California at Irvine.



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