Florida’s Legislature voted to repeal the statute creating a special district for government (the Reedy creek Improvement District), which it established in 1967 to support Disney. The Governor appears to be ready to sign the bill. According to Brooks Barnes, the New York Times
[The district] was put together in 1967 and essentially allows the megaresort, which employs roughly 80,000 people, to function as its own municipal government…. [The district]This gives them a great deal of power over construction plans and permits on their 25,000-acre property. Reedy Creek charges taxes to Disney in order to fund the resort’s fire department and emergency medical services. Disney World generates its electricity via Reedy Creek.
The reason for the repeal appears to be Disney’s prominent opposition to the Florida law that restricts “classroom instruction by school personnel or third parties on sexual orientation or gender identity … in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.” Does Florida have the right to make this law?
[1.]Let’s start with the facts: Retaliatory government actions against individuals or groups based upon their speech are usually unconstitutional. Umbehr v. Board of Comm’rs In 1996, it was ruled that contracting with contractors can generally be refused by the government due to the contractor’s First Amendment activities. A few appellate decisions also held that withdrawing legal advertising from a newspaper due to editorial disagreements violates the First Amendment.
In the same way, government employees cannot be fired for political or speech speech. This is unless there’s a disruption to the employee’s rights of free speech (whatever that might mean). Pickering v. Bd. Ed. (1968). (1968). Speiser v. Randall (1958).
[2.] But here’s a twist: What Florida is planning to withdraw from Disney is essentially a form of government power that Disney had been specially granted—Disney’s ability to effectively run this special district (as I understand it does), with the legal authority this entails under state law. According to the employment analogy officials with political power do not generally have immunity from being retaliated by others, unless the benefits they are receiving in return for their actions were conferred on them by political figures.
For example, if the chairman of a committee switches party affiliations or otherwise injures leadership by his political opinions, he can lose all powers that his fellow members have granted him. This is even more true if an employee at low levels within government cannot be. The governor can also remove a member of the state cabinet who was elected by a governor council based on their political speech. It is possible for a city council to appoint a mayor or manager of a city, depending on whether state law permits it.
Disney is not an official politician, but that’s not to say they aren’t political. I agree with the First Amendment rights corporations enjoy, but it doesn’t necessarily mean they have the right to be elected. However, the Legislature has in effect granted it certain forms of political power that it seeks to withdraw. I find this analogy to be potentially pertinent.
[3.]It’s not just about political power withdrawals and grants. Umbehr These precedents also covered the types of contracts (for trash disposal) that almost any company could bid on and the grants that the government would make if the challenger was denied; similarly for government employees. You can also get other benefits like tax exemptions and many others.
The unusual aspect of this case is the fact that Disney was granted this extraordinary status because Disney is Disney. Removing it would just put Disney in the exact same place as all other Florida-based companies. There are many special districts throughout Florida. However, I believe that most of these were created to allow a commercial entity to control them. The political character of the district may not be enough to prevent the Legislature from removing such exceptional benefits, regardless of who the beneficiary corporation is.
A number of state laws provide special treatment for the NRA. One example is that they require shooting range standards to be “no more stringent” than national rifle associations standards. Ohio), or to allow “encouraging marksmanship through permitting National Rifle Association sanctioned and approved pistol matches be held at such range.” (Minnesota). These laws were made when the NRA wasn’t as politically active as it is now. Some laws may have been passed because the NRA was politically popular with the legislative party.
Let’s say that the state legislature decided that it no longer likes the NRA because of its position on gun laws. It decides to end this special treatment. It could, I think.
Another analogy could be Ysursa v. Pocatello Educ. Ass’n (2009). The law allowed government workers to approve payroll deductions for both general union dues and for political activity. The Idaho Legislature prohibited deductions from union political activities in 2003. However, employees could pay directly to the union, but they couldn’t use the deductions which are very valuable for the union.
Presumably this was motivated in part by legislative disagreement with unions’ political positions (though the Court didn’t discuss the motivation in detail, and it did note in a footnote that the parties hadn’t “raised any issue of viewpoint discrimination”)—after all, if the majority of the legislature liked the unions’ positions, it seems unlikely that they would have enacted a law that would have thus limited union power. However, the Court upheld it: Idaho does not suppress political speech. It simply declines the promotion of political activity through the use of public employer checksoffs. Also, the Florida Legislature could conclude, given Disney’s increased political influence in Florida, that they don’t wish to offer Disney any special benefits not available to other entities.
These analogies are not correct, and there is no precedent that would resolve the issue. For now, I will just outline the options; I would love to know if you have any other relevant cases or arguments.