retaliation – Techdirt (original) (raw)

Judge Slams Ken Paxton’s Attack On Media Matters’ Free Speech Rights

from the absolute-free-speech-suppressor dept

The First Amendment has won again, this time against another pretend “free speech absolutist” (Texas Attorney General Ken Paxton) in his attempt to punish someone for their free speech. Perhaps Ken Paxton will have to learn about the First Amendment in these remedial legal ethics education classes he’s required to take as part of closing out the criminal charges he was facing for years.

You may recall that after fake free speech absolutist Elon Musk got all pissy at Media Matters’ use of its own free speech rights to point out the fact that they were able to find ads on ExTwitter from giant companies appearing next to the accounts of literal neo-Nazis, a couple of pandering state Attorneys General decided they’d use the power of their states to punish Media Matters.

The whole thing is incredibly stupid, but just to set the stage, Musk started whining about how unfair it was that Media Matters found and wrote about the ads. Trump advisor Stephen Miller tweeted that he thought state AGs should investigate Media Matters for their article, and both Paxton and Missouri’s Andrew Bailey jumped up to do so.

Paxton sent a civil investigatory demand (CID) as a sort of fishing expedition, demanding Media Matters hand over a ton of internal documents. Media Matters responded by going to court, initially in Maryland, but then quickly moved to DC (after the judge in Maryland suggested that was the proper venue) and asked the court to protect it from this obviously ridiculous, retaliatory attack. The attack was clearly designed to create chilling effects to stop any sort of investigatory reporting on what was happening to ExTwitter.

On Friday, Judge Amit Mehta did a complete and total takedown of Paxton’s bullshit censorial attack on Media Matters’ speech. The whole thing is worth a read. Paxton argued that the DC court has no jurisdiction over his Texas-based investigation. This is a bit ironic, given that Paxton is at the same time claiming jurisdiction over Media Matters despite it being in DC, not Texas.

Turns out, Paxton screwed himself here (such a good lawyer, huh?) by hiring a process server to deliver the CID in DC, thereby making the jurisdiction question a lot easier:

First, the court finds that Defendant invoked the benefits and protections of the District’s laws when he “caused” service of the CID in the District of Columbia “through a professional process service.” Def.’s Opp’n, Decl. of Ass’t Att’y Gen. Levi Fuller, Ex. 1, ECF No. 26-1, ¶ 3 [hereinafter Fuller Decl.]. Courts have found that the hiring of a process server creates an agency relationship between the attorney and process server, and that relationship establishes the attorney’s presence in the jurisdiction to satisfy the “minimum contacts” requirement. See Schleit v. Warren, 693 F. Supp. 416, 419–20 (E.D. Va. 1988) (so holding under Virginia law); Balsly v. W. Michigan Debt Collections, Inc., No. 11-cv-642-DJN, 2012 WL 628490, at *5–7 (E.D. Va. Feb. 27, 2012) (same); Hamilton, Miller, Hudson & Fayne Travel Corp. v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981) (so holding under Michigan law). Courts also have held that a person who arranges for personal delivery of process in a State “purposely avail[s] themselves of the privilege of serving process in [the State].” Hori, 520 F. Supp. at 70. As one court has put it: “it [is] reasonable to conclude that a lawyer who knowingly serves abusive process in a jurisdiction . . . is ‘purposely avail[ing] himself of the privilege of conducting activities within the forum State.’” Schleit, 693 F. Supp. at 422–23 (quoting Luke v. Dalow Indus., Inc., 566 F. Supp. 1470, 1472 (E.D. Va. 1983)). Defendant’s hiring of a process server in the District of Columbia to effect service on Media Matters therefore created the requisite jurisdictional contacts with the District. See Smith v. Jenkins, 452 A.2d 333, 335 (D.C. 1982) (“Generally an agency relationship results when one person authorizes another to act on his behalf subject to his control, and the other consents to do so.”) (citations omitted).

Maybe they can teach that in Paxton’s remedial classes as well.

The judge also notes the irony of Paxton claiming to be able to enforce Texas law in DC but then not to be subject to a DC court himself:

Defendant promised to “vigorously enforce” the Texas DTPA against Media Matters for “fraudulent acts” with no apparent connection to Texas. Branch Decl., Ex. B at 13. His issuance of the CID had the effect of chilling Plaintiffs’ expressive activities nationwide, which deprived D.C. residents access to Plaintiffs’ reporting. The national implications of Defendant’s actions were compounded by his calling upon other Attorneys General to investigate Media Matters. See id., Ex. C, at 17. Thus, like the New Jersey Attorney General in Grewal, Defendant “projected himself across state lines and asserted a pseudo-national executive authority” that makes exercising jurisdiction over him reasonable and does not offend principles of federalism.

Having shown that Paxton has done enough that the DC Court has jurisdiction over him, the court takes on Paxton’s claim that his CID presents no injury to Media Matters (try not to laugh). Judge Mehta points out how ridiculous this claim is by basically saying, “dude, do you even know how the First Amendment works?”

Where, as here, a plaintiff brings a claim of First Amendment retaliation, “the injury-infact element is commonly satisfied by a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free expression.” Edgar v. Haines, 2 F.4th 298, 310 (4th Cir. 2021), cert. denied, 142 S. Ct. 2737 (2022) (quoting Cooksey v. Futrell, 721 F.3d 226, 235 (4th Cir. 2013)) (internal quotation marks omitted); see also Twitter, 56 F.4th at 1174 (citing Edgar, 2 F.4th at 310); Cooksey, 721 F.3d at 236 (finding justiciable injury where a state official informed plaintiff that she had “statutory authority” to seek an injunction against him if he did not edit his diet-advice website and plaintiff alleged “speech-chilling uncertainty about the legality of private conversations and correspondence”). The chill must be “objectively reasonable.” Edgar, 2 F.4th at 310 (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)).

Through sworn affidavits, Plaintiffs have demonstrated the profound chilling impact that the CID has had on its news operations and journalistic mission. Media Matters’ Editor-in-Chief, Benjamin Dimiero, declares that the CID has “dramatically changed [his] team’s editorial processes[.]” Pls.’ Mot., Decl. of Benjamin Dimiero in Supp. of Pls.’ Mot., Ex. 4, ECF No. 4-4, ¶ 16 [hereinafter Dimiero Decl.]. Dimiero describes a “new culture of fear” amongst Media Matters staff about research and reporting. Id. For example, he avers that the editorial team and leadership now engage in “greater internal scrutiny and risk calculation” when approaching stories that they otherwise would have published after their normal vetting process, such as stories about media coverage of the Defendant’s anti-abortion actions in Texas. Id. Dimiero further states that other stories, such as one concerning content moderation decisions made by X, “may go unreported on entirely.” Id. “There is,” he says, “a general sense among our team and organization that we must tread very lightly[] and be careful not to cross lines that would jeopardize our work or our employees’ safety . . . because of concern that certain reporting could make us a target for further retaliation.”

According to Dimiero, since Defendant announced the investigation, “Media Matters’s editorial leaders have pared back reporting and publishing, particularly on any topics that could be perceived as relating to the Paxton investigation.” Id. ¶ 17. Absent the CID, Media Matters would have coordinated follow up research and reporting on Hananoki’s November 16 Article, as well as the one that appeared the next day. Id. ¶ 18. Media Matters, for instance, “received several tips from people who have seen advertisements for prominent brands placed alongside extremist content,” but has limited the scope of its reporting on the subject “for fear of additional retaliation.” Id. Furthermore, Media Matters otherwise would have published at least two additional articles on the topics of Hananoki’s reporting, but his team withheld them due to concerns of further legal action. Id. ¶ 19. Writers have expressed concerns that their investigations could serve as the basis for retaliatory legal action and that their work product might be subject to investigative demands. Id. ¶ 22; see also Padera Decl. ¶¶ 23–24 (same). Media Matters’ leadership and editorial team have since assumed a more significant role in publishing decisions, which “has significantly slowed down [their] editorial and publication process.” Dimiero Decl. ¶ 21. Media Matters has been taking these steps out of fear of retaliation, not out of legitimate concerns about fairness or accuracy

I can relate, having been sued for my accurate reporting myself. The mental toll that such a lawsuit has on your reporting is very real, even when (arguably especially when) you know that your reporting was 100% solid. It’s incredibly chilling that you can still end up in court, facing ruinous liability, even when you do everything right.

From there, Judge Mehta moves on to the likelihood of success for Media Matters. He notes he only needs to do so for the First Amendment issue, which are pretty obvious and very easy.

Defendant’s investigation of Media Matters is “retaliatory action sufficient to deter a person of ordinary firmness in plaintiff’s position from speaking again[.]” Aref, 833 F.3d at 258. Defendant makes no contrary argument, Def.’s Opp’n at 23, so the court treats as conceded the sufficiency of Plaintiffs’ proof as to this element, see Day v. D.C. Dep’t of Consumer & Regul. Affs., 191 F. Supp. 2d 154, 159 (D.D.C. 2002) (“If a party fails to counter an argument that the opposing party makes in a motion, the court may treat that argument as conceded.”); see also Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“[I]f a party files an opposition to a motion and therein addresses only some of the movant’s arguments, the court may treat the unaddressed arguments as conceded.”)

Still, the court explains why Plaintiffs prevail regardless. “[T]he threat of invoking legal sanctions” is sufficient to deter protected speech. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67 (1963). So, too, is the “threat of administrative and judicial intrusion into newsgathering and editorial process” that arises from official process and its possible enforcement. United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) (internal quotation marks omitted). The Texas Code authorizes the Attorney General to seek restraint of future conduct and the imposition of civil penalties of up to $10,000 per violation in a Texas state court if he has “reason to believe” Plaintiffs violated the DTPA. Tex. Bus. & Com. Code § 17.47(a), (c). He also can seek to have Plaintiffs held in contempt in Texas state court for not complying with the CID. Id. § 17.62(c). These potential punitive consequences, as well as possible judicial intervention to enforce the CID, make Plaintiffs’ claim of chilled expression objectively reasonable.

There is more. “The compelled production of a reporter’s resource materials can constitute a significant intrusion . . . [that] may substantially undercut the public policy in favor of the free flow of information to the public[.]” United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). The CID seeks such records. It demands “internal and external communications . . . regarding Elon Musk’s purchase of X,” X’s CEO “Linda Yaccarino,” and Hananoki’s November 16 Article, as well as external communications with “employees and representatives of X” and the various companies that were the subject of the November 16 Article for a three-week period. Branch Decl., Ex. A, at 11. The compelled disclosure of such “research materials poses a serious threat to the vitality of the newsgathering process.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995). And, of course, Plaintiffs’ actual self-censorship in response to the announced investigation and the CID “provides some evidence of the tendency of [Defendant’s] conduct to chill First Amendment activity.” Hartley v. Wilfert, 918 F. Supp. 2d 45, 54 (D.D.C. 2013) (quoting Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 500 (4th Cir. 2005)). The court need not repeat that uncontested evidence here.

Also, Paxton apparently didn’t even try to defend non-censorial reasons for opening the investigation:

To establish causal link, “[i]t is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. Specifically, it must be a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019). Defendant’s initial press release establishes that Defendant opened an investigation of Media Matters in response to its protected media activities. Branch Decl., Ex. B, at 13. Also, Defendant’s description of Media Matters as a “radical anti-free speech” and “radical left-wing organization” and his encouraging of other Attorneys General to look into Media Matters’ reporting is evidence of retaliatory intent….

Defendant has not responded to Plaintiffs’ causation evidence. See Def.’s Opp’n at 22–23. Notably, he has not submitted a sworn declaration that explains his reasons for opening the investigation. By remaining silent, he has conceded the requisite causal link

It seems quite possible that Ken Paxton is a terrible lawyer.

Paxton also claimed that Media Matters’ voice wasn’t chilled because the org had continued to speak out in defense of its reporting. But, as the court notes, that’s not how any of this works. At all.

Defendant also contends that it is “factually untrue” that Media Matters has had its expression chilled, citing television appearances by Media Matters’ President, in which he has defended the organization’s reporting and “doubled down” on the accuracy of the X images contained the November 16 Article. Def.’s Opp’n at 24; Fuller Decl., Exs. E & F, at 24–39. But this argument asks too much of Plaintiffs. They “need not show that the government action led them to stop speaking ‘altogether,’” only that it would be “likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Edgar, 2 F.4th at 310 (quoting Benham 635 F.3d at 135). Therefore, the fact that Media Matters’ President has publicly defended its work does not mean that Plaintiffs have not suffered irreparable harm.

End result: preliminary injunction barring Paxton from enforcing his CID.

Of course, now we’ll have to see what happens in Missouri, where AG Andrew Bailey (who also pretends to be a free speech warrior while trying to suppress the speech of others) not only sent a CID, but immediately sued Media Matters in Missouri. He claims that Media Matters’ decision to go to court to block Paxton’s CID meant that they would refuse to bow down to his demands as well. That, of course, puts that case in a local Missouri court. But one hopes that this ruling will help clarify the First Amendment issues for that court as well.

Still, chalk one up for actual free speech and the First Amendment: Ken Paxton has had his attempt to retaliate against Media Matters for its speech smacked down, as was richly deserved.

Filed Under: 1st amendment, andrew bailey, chilling effects, cid, dc, elon musk, free speech, ken paxton, retaliation, texas
Companies: media matters

Ousted Prosecutor’s First Amendment Lawsuit Against Ron DeSantis Revived By Appeals Court

from the tinpottiest-of-dictators dept

Ron DeSantis continues to govern Florida as though the Constitution doesn’t exist. It may froth the voting base a bit, but it’s doing almost nothing for DeSantis, much less the people he’s supposed to be serving.

Law after unconstitutional law has been passed by the legislature, followed almost immediately by lawsuits and injunctions blocking the recently passed laws from being enforced. But nothing stops the stupid in Florida, especially when it’s being “led” by a wannabe fascist with presidential aspirations.

Here’s yet another loss at the hands of the courts for Governor DeSantis. Last summer, DeSantis began a purge of perceived political opponents, wielding his executive power to suspend prosecutors he viewed as insufficiently deferential to him and his ever-increasing pile of unenforceable laws. The prosecutors who were ousted were soon replaced with handpicked selections from the DeSantis’ lackey farm system.

State attorney Andrew Warren was one of several kicked to the curb by DeSantis. Warren’s mistake? He was elected (and re-elected in 2020) by constituents who apparently supported his criminal justice reforms. DeSantis doesn’t care for reformers, though. Here’s how Warren ended up on the governor’s shit list, as summarized by C.J. Ciaramella for Reason.

DeSantis suspended Warren in August of 2022 for alleged neglect of duty after Warren signed letters saying he would not enforce state laws restricting abortion or transition-related medical care to transgender minors. The DeSantis administration cited those letters, as well as Warren’s non-prosecution policies for certain low-level crimes, such as “resisting without violence” charges—an offense that had become derisively known as “biking while black” because it was overwhelmingly applied against black bicyclists. The move came after the Justice Department released a 2016 report that found that 75 percent of bicyclists stopped by Tampa police were black.

The lower court had problems with DeSantis’ actions, stating that it believed the firing was politically motivated, rather than truly justified. Nonetheless, it ruled that there might be just enough justification to permit firing Warren for saying things DeSantis didn’t like.

That miscarriage of justice has now been overturned. The Eleventh Circuit Court of Appeals has reversed the lower court’s decision, saying this looks way more like unconstitutional retaliation, rather than a truly justified firing.

At least one of the reasons cited by DeSantis for suspending Warren clearly implicates protected speech, as the Eleventh Circuit points out. The letters signed by Warren were written and published by nonprofit Fair and Just Prosecution. Although he signed the letters, none of statements made became part of his office’s policies. On top of that, his opposition to abortion restriction (as stated in the letters) was clarified when the Florida legislature passed its anti-abortion law. In a television interview, Warren said he disagreed with the law, but would respect court rulings on its legality.

DeSantis’ prosecutor purge began with his asking one of his advisors (Larry Keefe) whether any state prosecutors “were not enforcing the law.” Keefe started talking to law enforcement officials (including police union executives). Lots of officials at different agencies made vague statements about Warren being “difficult to work with” and not enthusiastic enough about prosecuting low-level crimes. Lots of stuff was said, but no one could really point to anything in particular, other than the fact that cops felt Warren was a “progressive” and therefore was not a good prosecutor.

Keefe shifted the focus of his half-assed investigation. From the decision [PDF]:

During his inquiry, Keefe found online the four advocacy statements that FJP had published and Warren had signed—regarding transgender care and abortion, as well as election security and capital punishment. Keefe never looked to see whether Warren’s office had adopted these statements as policy. It had not. He never determined whether Warren’s office had encountered a case about transgender care or abortion. It had not.

Keefe’s search also revealed an article about Democratic billionaire George Soros’s financial support of “progressive prosecutors.” The article noted that Soros had donated to the Florida Democratic Party, which in turn contributed to Warren’s campaign. Based on this fact and his other research, Keefe concluded that Warren “had ceded his power and authority as the [s]tate [a]ttorney in Tampa to be an expresser or a conduit for Mr. Soros’s world views on criminal prosecution.”

During his inquiry, Keefe never communicated with Warren or anyone in his office. He spoke to only two people who knew anything about how Warren’s office operated: [Hillsborough County Sheriff] Chronister and [former Tampa police chief Brian] Dugan. They told him about Warren’s prosecutorial decisions, but Keefe never focused on those decisions. He concerned himself instead with the advocacy statements Warren had signed.

Shortly after this, DeSantis issued an executive order suspending Warren, citing a supposed “blanket non-prosecution policy” and the statements Warren had made on the subjects of abortion and transgender care. The order included the George Soros stuff Keefe had ginned up. Removed from the final draft were the statements Warren had made saying he would exercise individual discretion in abortion cases, thus implying Warren had extended his “blanket non-prosecution policy” to cover the recently passed abortion ban.

DeSantis added to his printed lies and half-truths by claiming his office had spoken to “line prosecutors across the state,” something that never actually happened.

We’re pretty sure this is nothing more than politically motivated retaliation, says the Appeals Court. It sums things up by saying the lower court got everything right… everything except the part where it decided DeSantis could suspend the prosecutor for his own political benefit without troubling the Constitution.

The district court’s findings show that DeSantis never suspended Warren because DeSantis disagreed with his actual office policies or case decisions. Keefe never looked for deficient performance or neglect of duty; instead, he looked for indications “associated with reform prosecutors.” Keefe never sought information about Warren’s policies or details of his case decisions because “he already knew all he needed to know: Mr. Warren was the leading Florida reform prosecutor.” Keefe urged the suspension along because Warren “was a reform prosecutor.” On these facts, DeSantis based Warren’s suspension on his reputation as a “reform prosecutor.” DeSantis’s political benefit was solely derived from Warren’s political ideology.

The First Amendment prevents DeSantis from identifying a reform prosecutor and then suspending him to garner political benefit.

Back down it goes. The lower court has been corrected on this error. Now, the burden is back on DeSantis to prove this wasn’t a politically motivated ousting of an elected official he (and his office) just didn’t like. Good luck with that. There’s plenty on the record strongly indicating otherwise.

Filed Under: 11th circuit, 1st amendment, andrew warren, florida, purge, retaliation, ron desantis

The New FTC Amazon Antitrust Case Is Better Than The Last One, But Still Weird

from the closer-closer dept

It’s no secret that I think this FTC has been pretty disappointing and has missed a ton of opportunities to actually make things better for the public. For reasons I really don’t understand, it has filed a lot of antitrust cases against tech companies that have almost always seemed half-baked, resulting in a losing streak in court. I have no doubt that some of the big tech companies are doing some terrible things, but it’s been… weird at how little the FTC has actually been able to show in their main shots on goal.

Three years in, the FTC is at least getting a little better. As noted, I think the case that was filed against Google earlier this year finally had some strong arguments about how the company has abused its position in the online ads market. However, I still thought that the FTC’s complaint against Amazon early this summer regarding its methods of convincing people to sign up for Prime was, again, pretty weak. I’m surprised by this, as it seems like if there’s really problematic behavior, the FTC should have discovered it by now.

I don’t know why the FTC keeps splitting up its cases against these companies and filing multiple suits, but it has now filed another antitrust case against Amazon, and this one is definitely stronger! It actually suggests some activity that, if the complaint is accurate, seems pretty problematic! But then it dumps in a bunch of things that don’t seem problematic at all, and again I’m left perplexed. Why not just focus on the strong arguments that make your case look good?

The part that strikes me as strongest about the new lawsuit: the restrictions Amazon puts on sellers regarding how they can sell their products elsewhere, demanding that the lowest price must be on Amazon. As the complaint notes, Amazon used to do that contractually, but stopped once regulators started sniffing around:

Originally, Amazon imposed explicit contractual requirements barring all sellers from offering their goods for lower prices anywhere else. After European regulators began investigating, Amazon got rid of these requirements in Europe. After a U.S. senator called for antitrust scrutiny, Amazon did the same in the United States in 2019.

That’s good that they stopped this practice as it definitely limits competition and can harm consumers who would prefer not to use Amazon. However, the complaint notes that Amazon still punished sellers who then chose to sell things cheaper elsewhere:

One set of tactics stifles the ability of rivals to attract shoppers by offering lower prices. Amazon deploys a sophisticated surveillance network of web crawlers that constantly monitor the internet, searching for discounts that might threaten Amazon’s empire. When Amazon detects elsewhere online a product that is cheaper than a seller’s offer for the same product on Amazon, Amazon punishes that seller. It does so to prevent rivals from gaining business by offering shoppers or sellers lower prices

The details here matter, and I want to see Amazon’s explanation for this, but on a first pass, this looks bad, and certainly could be anti-competitive.

The complaint also notes that Amazon has gradually been increasing the fees it charges sellers, squeezing them. The details here will also matter, but I do know that back when we were looking for places to sell our CIA card game, it was cost prohibitive to offer it through Amazon directly, and friends who had sold directly through Amazon told us horror stories of hidden charges.

That, by itself, might not be anti-competitive, but when you combined it with Amazon pressuring sellers to offer their lowest price through Amazon, that combination can be a problem:

Moreover, Amazon’s one-two punch of seller punishments and high seller fees often forces sellers to use their inflated Amazon prices as a price floor everywhere else. As a result, Amazon’s conduct causes online shoppers to face artificially higher prices even when shopping somewhere other than Amazon. Amazon’s punitive regime distorts basic market signals: one of the ways sellers respond to Amazon’s fee hikes is by increasing their own prices off Amazon.

There are also some heavily redacted bits regarding an internal effort, named Project Nessie, that seems related to all of this, but the details are pretty much all blacked out, so it’s difficult to tell how serious it is.

The next part, though, seems pretty weak. The complaint says that it’s unfair for Amazon to say that to have your products be “Prime Eligible” you have to use Amazon’s own order fulfillment system. And, I get why that’s annoying for sellers, but it’s difficult to see how that’s directly anti-competitive, when there are some fairly obvious legitimate business reasons for doing so. Most obviously: in order to make Prime make sense, including the ability to ship things so fast at no extra charge, having Amazon handle the fulfillment seems completely reasonable?

Amazon requires sellers who want their products to be Prime eligible to use Amazon’s fulfillment service, Fulfillment by Amazon (“FBA”), even though many sellers would rather use an alternative fulfillment method to store and package customer orders.

So, the whole section about this being anti-competitive just seems really weak, and takes away from the other parts that seem like a stronger argument.

There is a redacted quote in this section of the complaint, which implies that Amazon believes it could do things differently here, and experimented with it, but changed its mind because it was too beneficial to sellers. But, again, the quote is redacted, so it’s not entirely clear.

Anyway, there’s a lot in this complaint, and as with any antitrust case, we’re talking many years before anything gets sorted. As noted, some of it makes some potentially stronger arguments, but some of it just seems weak, and it remains disappointing to see weak arguments trotted out, as it undermines the rest of the case.

Still, this does seem like a much better case than the one filed earlier this year.

Filed Under: amazon prime, antitrust, competition, ftc, retaliation
Companies: amazon

The Mouse Strikes Back: Disney Sues DeSantis For 1st Amendment Violations

from the the-mouse-is-mad dept

Almost exactly a year ago, we pointed out that Ron DeSantis deliberately trying to punish Disney for making some mild criticism of an (obviously unconstitutional) bill that he was endorsing was, itself, a 1st Amendment problem. And that was true even if the underlying idea to get rid of Disney’s control over the land in Orlando where Disney World existed might make some sense. The fact that it was done in retaliation for speech was a problem.

I actually wondered if Disney would sue earlier, but it waited until after the “switch over” to the new DeSantis-friendly board had occurred (and after Disney’s lawyers completely out-maneuvered him in public by having the old board transfer over most of its power to Disney before the new board was seated).

But, now that that’s happened, Disney’s lawyers have pounced and have sued DeSantis over the whole scheme. I am no fan of Disney lawyers, and can’t recall ever having sided with them on anything, but here, they’re right.

I won’t get into the contracts clause, takings clause, or due process clause claims in the lawsuit, but do want to talk about the 1st Amendment ones, because that’s what was most interesting to me and what we had called out earlier. Disney’s lawyers are pretty clear on how this played out:

There is no room for disagreement about what happened here: Disney expressed its opinion on state legislation and was then punished by the State for doing so.

Governor DeSantis announced that Disney’s statement had “crossed the line”—a line evidently separating permissible speech from intolerable speech—and launched a barrage of threats against the Company in immediate response. Since then, the Governor, the State Legislature, and the Governor’s handpicked local government regulators have moved beyond threats to official action, employing the machinery of the State in a coordinated campaign to damage Disney’s ability to do business in Florida. State leaders have not been subtle about their reasons for government intervention. They have proudly declared that Disney deserves this fate because of what Disney said. This is as clear a case of retaliation as this Court is ever likely to see.

At the Governor’s behest, the State Legislature first voted to dissolve the long-standing RCID, then ultimately voted to give near-complete control of RCID to the Governor himself. As the Florida representative who introduced the Reedy Creek dissolution bill declared to the Florida House State Affairs Committee: “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”

There are two specific claims regarding how Florida’s actions violated the 1st Amendment. There’s one for the laws the legislature passed, and DeSantis signed, to set up a board of DeSantis’ political friends to control what had been the “Reedy Creek Investment District” (RCID), replacing it with the brand new “Central FLorida Tourism Oversight District (CFTOD).

As discussed, Disney’s public statements on HB 1557 are fully protected by the First Amendment, which applies with particular force to political speech. See McIntyre, 514 U.S. at 346.

[….]

Senate Bill 4C and House Bill 9B were motivated by retaliatory intent. Governor DeSantis would not have promoted or signed, and the Legislature would not have enacted either bill, but for their desire to punish Disney for its speech on an important public issue. See Warren, 2022 WL 6250952, at *2 (crediting “sources of information about the Governor’s motivation” for suspending a prosecutor, including a tweet from the Governor’s press secretary and comments during the Governor’s announcement of the suspension).

Governor DeSantis called on the Legislature to extend its special session for the express purpose of enacting Senate Bill 4C the very day after Disney made a statement about House Bill 1557. He repeatedly and publicly stated that he was “fight[ing] back” for Disney’s criticism of House Bill 1557, including at the bill-signing ceremony. Key legislators publicly acknowledged that Senate Bill 4C targeted Disney.

To me, this is a pretty strong argument. DeSantis and many legislators were pretty open about why they were doing this and that it was retaliation for Disney’s speech. It’s hard to see how that’s not an attack on free expression.

I mean, just months earlier, DeSantis’ office was literally working with Disney’s lawyers to insert a “theme park exemption” from his social media moderation bill (which has been declared by both a district court and the 11th Circuit appeals court to be an unconstitutional 1st Amendment violation). It’s kinda frustrating that Disney focused on working with the Governor to get their own exemption rather than fighting such an incursion against free speech at the time, but at the very least it shows that DeSantis and Disney were close… right up until they issued some minor criticism of another unconstitutional bill (he does a ton of unconstitutional 1st Amendment-violating nonsense, doesn’t he? Especially for a guy who claims to be about protecting the 1st Amendment.)

The other 1st Amendment claim is regarding the new CFTOD’s interference with Disney’s contracts in trying to punish the company.

CFTOD’s retaliatory interference with the Contracts, via the Legislative Declaration and its predicates, has chilled and continues to chill Disney’s protected speech. Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (discussing action that “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”). This unconstitutional chilling effect is particularly offensive here due to the clear retaliatory and punitive intent that has motivated CFTOD’s actions, at the Governor’s directive. See Bailey v. Wheeler, 843 F.3d 473, 486 (11th Cir. 2016) (“Our First Amendment demands that a law-enforcement officer may not use his powerful post to chill or punish speech he does not like.”).

[….]

CFTOD’s actions were motivated by retaliatory intent. On April 17, Governor DeSantis warned that the CFTOD board would be meeting a few days later to “make sure Disney is held accountable.” Later that day, Governor DeSantis announced, “I look forward to the additional actions that the state control board will implement in the upcoming days.” Governor DeSantis has let no doubt be harbored as to the impetus for his punishment. He wrote in an article to promote his book, “When corporations try to use their economic power to advance a woke agenda, they become political, and not merely economic, actors. … Leaders must stand up and fight back when big corporations make the mistake, as Disney did, of using their economic might to advance apolitical agenda.”

There is no rational basis to invalidate the Contracts, and the purported justifications for doing so are pretextual.

I’m not as sure if that claim is as strong as the other one, but it’s something worth watching all the same. I imagine this case is going to take quite a while to resolve itself with whatever appeals happen no matter who wins.

But, still, this is yet more Florida taxpayer money that DeSantis is throwing away in yet another of his unconstitutional efforts to suppress speech while pretending to be champion of speech and fiscal responsibility.

Filed Under: 1st amendment, breach of contract, cftod, florida, rcid, reedy creek, retaliation, ron desantis, speech
Companies: disney

DeSantis May Be Learning What The Copyright World Has Always Known: Disney’s Lawyers Don’t Fuck Around

from the don't-fuck-with-the-mouse dept

We’ve already covered how Florida man Governor Ron DeSantis flipped out that Disney, the largest employer in his state, offered some mild criticism over one of his unconstitutional censorship bills, and decided to retaliate by (1) removing the stupid questionable “theme park exemption” his office had directly worked with Disney to insert into his unconstitutional social media bill and (2) move to take control over the special board that that had been set up decades ago, giving Disney effective control over everything around Disney World.

Now, to be clear, the whole setup of what’s called the “Reedy Creek Improvement District” was quite sketchy. And there are plenty of legitimate reasons to do away with it. But doing good things for bad reasons is still bad, and when it’s done in retaliation for speech criticizing the governor, it’s unconstitutional.

Either way, DeSantis needs more culture war battles to constantly fight if he’s going to keep his name in the headlines for his 2024 Presidential hopes, so of course he was going to keep up with the plan. A month ago, DeSantis basically replaced all the members of the Reedy Creek board with his own lackeys.

But, in a move that will surprise absolutely no one who has been following Disney’s legal shenanigans for decades (i.e., anyone who follows copyright…), Disney’s lawyers don’t fuck around.

Earlier this week it came out that right before the handover in power, the old (Disney controlled) board effectively voted to strip itself of nearly all of its power… and to give it to Disney, effectively forever.

I mean, it’s evil, but also somewhat brilliant in its audacity.

And, while Team DeSantis is crying foul about how this was done in secret, it turns out that they held a public vote on the matter the day before DeSantis initiated his takeover. If DeSantis and friends had, you know, been actually paying attention, they might have noticed, rather than only finding out after being installed into an effectively empty, ceremonial role.

As Joe Patrice, over at Above the Law, notes, Disney’s lawyers are better than Ron DeSantis’ lawyers. And, part of it is in the way that they tried to make this transfer of power last: they say it will be “effective in perpetuity.”

But! One of those legal terms that gets thrown here and there more for being “legalistic sounding” rather than something that actually comes up all that often is the “rule against perpetuities” which is pretty much what it says on the tin: says you can’t create a perpetual interest in property that outlives anyone living at the time of the deal. Wikipedia’s summary is actually pretty good here:

The rule against perpetuities is a legal rule in the common law that prevents people from using legal instruments (usually a deed or a will) to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests (traditionally contingent remainders and executory interests) in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest, often expressed as a “life in being plus twenty-one years”. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the “dead hand” or “mortmain“.

The new agreement Disney cooked up more or less first tries to ignore that, but then says that if it comes up, the deal basically lasts right up until the latest date possible under the rule of perpetuities: 21 years after a relatively newborn infant dies. And… they chose all of the grandchildren of King Charles.

No. Really. It’s right there.

That says:

Term. This Declaration shall be deemed as of the Effective Date and continue to be effective in perpetuity unless all or certain portions of the provisions of this Declaration are expressly terminated as provided elsewhere herein; provided, however, that if the perpetual term of this Declaration is deemed to violate the “Rule Against Perpetuities,” or any similar law or rule, this Declaration shall continue in effect until twenty one (21) years after the death of the last survivor of the descendants of King Charles III, King of England living as of the date of this Declaration….

It’s a nice touch to cover all of Charles’ grandkids as a hedge in case any of them die young.

DeSantis is not happy about this, and you can actually understand why. I mean, this whole setup is bullshit. But, then again, so was his retaliation move. And the original Reedy Creek setup. All of it is bullshit. Up and down the stack.

There are no winners here, only assholes and losers.

But, it’s pretty rich to see DeSantis lose his mind over being outplayed like this.

Of course, this isn’t over yet. DeSantis’ lackey, Florida Attorney General Ashley Moody is already demanding records from the February 8th meeting where all this went down with no one noticing.

We have no love for Disney over here at Techdirt. The company has long been terrible and problematic, in part because of it’s ridiculously aggressive lawyering. This really seems like one of those situations where it would be nice if both of them could lose in the most embarrassing manner possible.

Still, all this makes me wonder what kind of bullshit Disney’s lawyers are going to pull on December 31st as the clock ticks down to Mickey Mouse entering the public domain…

Filed Under: florida, king charles, retaliation, ron desantis, rule against perpetuities
Companies: disney, reedy creek

Fifth Circuit Passes Up Opportunity To Correct Ruling That Said Gov’t Retaliation Against Protected Speech Is Fine

from the too-much-speech-in-this-jurisdiction,-they-opined dept

We’ve known for a while that the Fifth Circuit is staunchly pro-cop. But, in recent months, it’s also shown itself to be no friend of the First Amendment.

In September, it suddenly decided the First Amendment doesn’t have anything to do with online speech. It refused to block a Texas law targeting social media services — a law that would force private companies to host speech they (or a majority of their users) didn’t care for. Compelled speech is always unconstitutional, but Fifth Circuit judge Andy Oldham said otherwise in an incomprehensible ruling that ran contrary to more than a century of Supreme Court precedent.

Then, in December, it clawed back a very solid First Amendment ruling, announcing it would be rehearing the case en banc after an (unnamed) judge asked that the case be reheard by the entire court. This was a clear First Amendment retaliation case. Officers arrested a local journalist for asking another cop some questions. The independent journalist had done nothing more than ask a Laredo police employee for confirmation of facts about a Border Patrol officer’s suicide. For this, she was arrested for allegedly “misusing official information.”

As the court noted in the decision it later pulled, there was no question this arrest violated the First Amendment.

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

So, this case — where the person suing was so firmly in the right local prosecutors were unwilling immediately dropped the charges — gets a rehearing. But a blown call on the First Amendment — one issued by the Appeals Court last July — won’t get a second chance.

The request for an en banc hearing of this case has been denied. Fortunately, this denial [PDF] comes with a lengthy dissent from Judge James Ho attached — one that points out everything that’s wrong with the original decision.

Here’s the background. Sylvia Gonzalez, a retiree residing in Castle Hills, Texas, was unhappy with her local government. So, she chose to do something about it. She ran for office, securing a spot on the city council after winning her election run against a well-connected incumbent.

But her efforts didn’t end there. She organized a petition to unseat the current city manager and reinstate the previous city manager who she and petition signers felt would do a better job making sure the town’s streets were repaired in a timely manner. She presented this petition containing 300 signatures to the mayor during her first city council meeting. This resulted in a “contentious debate,” one that extended past the evening’s meeting and into the next day.

At the end of the second meeting, she was summoned to the mayor’s office by the police captain. The mayor asked where the petition was. Gonzalez responded by saying she turned it in to the mayor the day before. The mayor prompted her to look for it. Gonzalez did, finding it in her binder. The mayor said “You probably picked it up by mistake.” She gave him the petition.

So far, so banal.

BUT WAIT. This is from Judge Ho’s dissent:

The mayor, the police chief, and a special detective then hatched a plan to charge Sylvia with a crime in order to remove her from office. The police chief deputized his close friend, a private attorney, as a special detective to investigate Gonzalez. Following the investigation, the special detective filed an arrest affidavit alleging that Gonzalez had committed the crime of “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a governmental record.” Tex. Pen. Code Ann. § 37.10(a)(3).

Basically, the three conspired to criminally charge Gonzalez (who apparently wasn’t liked by the mayor) for mistakenly putting her own petition in her own folder, rather than turning it over to the mayor like she had thought she did. This would be the criminal “concealing or removing” of a government record. This happened after the first police officer Mayor Edward Trevino approached investigated and said no criminal activity had taken place.

Normally, this violation would be handled with a criminal citation and a summons to appear before a judge. It does not (normally!) result in an arrest. But nothing about this was normal. The intent was to intimidate and humiliate the feisty newcomer. Here’s what happened:

First, the special detective got a warrant rather than a summons. […] Second, the special detective circumvented the district attorney by using a procedure normally reserved for emergencies or violent felonies: He walked the warrant directly to a magistrate. Third, the special detective prevented Gonzalez from using the satellite booking function, which facilitates booking, processing, and releasing nonviolent offenders without jailtime. Gonzalez’s warrant did not go through any of the traditional channels, so it wasn’t in the satellite booking system.

Thanks to these machinations, Gonzalez spent a day in jail handcuffed to a bench and forced to forgo the use of a restroom. Jailers also refused to let her stand up to stretch her legs. The district attorney finally managed to step in and drop the charges, but not before Gonzalez’s name and criminal charges made headlines for several days.

Gonzalez sued. Somehow, the Fifth Circuit granted immunity to everyone involved in these clearly retaliatory actions — retaliation provoked by Gonzalez’s speech, her words to the council and the mayor, and the petition she had organized. Since no one else in the circuit had been quite so brazenly retaliatory in a similar situation, the Appeals Court decided there was no way these city officials would have known their abject fuckery was unconstitutional.

And that’s how it’s going to stand, now that a majority of Fifth Circuit judges have voted not to reexamine this blight on their records. At least Judge James Ho isn’t going to let this travesty pass unremarked:

The First Amendment is supposed to stop public officials from punishing citizens for expressing unpopular views. In America, we don’t allow the police to arrest and jail our citizens for having the temerity to criticize or question the government.

But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise. Few officials will admit that they abuse the coercive powers of government to punish and silence their critics. They’re often able to invent some reason to justify their actions. So courts must be vigilant in preventing officers from concocting legal theories to arrest citizens for stating unpopular viewpoints.

Judge Ho says the court utterly failed to do that here. Not only is it failing the First Amendment, it’s fucking up qualified immunity as well.

Even worse, we’re not just getting the First Amendment backwards. We’re also getting qualified immunity backwards. Just compare the denial of en banc rehearing here with some of our other recent en banc decisions.

We grant qualified immunity to officials who trample on basic First Amendment rights—but deny qualified immunity to officers who act in good faith to stop mass shooters and other violent criminals. Compare, e.g., Gonzalez, 42 F.4th 487; Morgan, 659 F.3d 359 (granting qualified immunity to principal who prohibited students from expressing their faith while at school), with Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (denying qualified immunity to police officers who took lethal action against a student who was about to shoot up his high school); Winzer v. Kaufman County, 940 F.3d 900 (5th Cir. 2019) (denying rehearing en banc in case against police department for lethal actions taken during active shooting incident).

Accordingly, officers who punish innocent citizens are immune—but officers who protect innocent citizens are forced to stand trial. Officers who deliberately target citizens who hold disfavored political views face no accountability—but officers who make split-second, life-and-death decisions to stop violent criminals must put their careers on the line for their heroism.

When even the Fifth Circuit is under-delivering on immunity, something is clearly wrong. And the original decision here — which says government officials can retaliate against speech they don’t like as long as they’re creative about it — is undeniably wrong. But it will remain in place, thanks to the inaction of a majority of the judges that call this appellate court home. And that doesn’t exactly bode well for the First Amendment retaliation cases they have chosen to re-hear.

Filed Under: 1st amendment, 5th circuit, journalist, misusing official information, retaliation, sylvia gonzalez

Three Years After BS Arrest For Hacking, Swedish Digital Rights Activist Freed By Ecuadorian Court

from the Assange-collateral-damage dept

In April 2019, Wikileaks founder Julian Assange was booted from the Ecuadorian embassy in London and arrested by UK authorities on behalf of the US to face criminal charges related to CIA leaks provided by Chelsea Manning.

He was not the only activist with an Ecuadorian nexus to be arrested that day. Ola Bini, a Swedish open source developer and digital rights activist, was arrested at the Quito Airport by Ecuadorian police for allegedly hacking CNT, a local telecommunications company. The arrest appeared to be collateral damage from the Assange expulsion — the politically motivated targeting of a Wikileaks-adjacent activist by a government official who claimed (despite knowing otherwise) that Bini was a dangerous hacker.

His arrest occurred shortly after Maria Paula Romo, then Ecuador’s Interior Minister, held a press conference to claim (without evidence) that a group of Russians and Wikileaks-connected hackers were in the country, planning a cyber-attack in retaliation for the government’s eviction of Assange; a recent investigation by La Posta revealed that the former Minister knew that Ola Bini was not the “Russian hacker” the government was looking for when Bini was detained in Quito’s airport. (Romo was dismissed as minister in 2020 for ordering the use of tear gas against anti-government protestors).

Bini was held for 70 days without being criminally charged. After a court forced prosecutors to get on with the prosecuting, Bini was released to his family while the government built its case. And what a case it was. The only evidence prosecutors had was a screenshot of CNT’s telnet login screen, one that appeared to have been taken by Bini as he informed a local system administrator of this apparent security hole.

Bini’s defense team has documented dozens of instances of prosecutorial misconduct. At one point, the judge overseeing the case was removed after sustained complaints about due process violations. Finally, nearly four years after being arrested, Bini is free, handed a verdict of innocence by the court.

Swedish software developer and digital rights activist Ola Bini was acquitted of charges of hacking a computer on Tuesday, January 31 by a court in Quito. The activist was acquitted unanimously by a tribunal of three judges after delivering a nearly 4.5-hour-long statement. Bini has faced persecution from the Ecuadorian state since 2019, and the legal proceedings against him have been marred by irregularities.

Speaking after the verdict to Peoples Dispatch, Carlos Soria, a member of the legal team for Bini, termed the tribunal’s unanimous verdict “unexpected” and a “very nice surprise,” considering all the irregularities, over 100 violations of due process, and adverse judgments over the nearly four years since Bini was first arrested.

Prosecutors have already stated they plan to appeal this ruling, which means Bini isn’t completely free yet. But given the extensive prosecutorial misconduct documented in this case, it’s safe to say the court didn’t spend more than four hours congratulating the government on putting up a good fight. Of course, the government has all the time and money it needs to continue pursuing a vindictive prosecution even the official initiating it knew targeted the wrong person.

Filed Under: ecuador, hacking, julian assange, maria paula romo, ola bini, retaliation
Companies: cnt

Josh Hawley Threatens Disney’s ‘Special Copyright Protections’ For Being ‘Woke’

from the hawley-shit dept

You will recall that Lauren Boebert was unsuprisingly confused about what lawmaking power she has as a lawmaker, having threatened to not “extend Micky (sic) Mouse’s trademark”, which is not a power Congress has. Josh Hawley, who has never been shy about threatening private companies over protected speech, at least has straight which law to threaten Disney with.

If you can’t read that, it says:

For years, @Disney has gotten special copyright protections from the federal government – allowing them to charge consumers more. Woke corporations shouldn’t get sweetheart deals. I’ll introduce legislation this week to end their special protections – enough is enough.

It’s not just what you do, but how and why you do it that matters. This is a perfect example. I too don’t want to see yet another extension of the current copyright term. Though, by all accounts, Disney has recognized how untenable further term extension is and hasn’t been lobbying for it at all. Ever since the public domain was allowed to return in the US, Hollywood has mostly accepted its fait regarding works from 95 years ago. But that doesn’t mean I want to live in an America where a select group of state actors can openly threaten private companies over protected speech.

Beyond that, it’s entirely unclear what legislation Hawley is proposing. Disney doesn’t have “special copyright protections”; it has the same protections as everyone else, albeit protections it specifically and heavily lobbied for. It’s unclear what Hawley is seeking to “end”.

The Walt Disney Company has lobbied multiple times to extend certain copyright protections so that their intellectual property would not fall into public domain. The Copyright Term Extension Act of 1998 extended corporate copyright protection from 75 years to 95 years, keeping Mickey Mouse under Disney’s control until at least 2024. These extensions don’t just apply to Disney, though they are the ones pushing the hardest for them.

So by all means, don’t extend copyright terms. Or, hey, even shorten them! But Hawley isn’t going to do that to one single company and he shouldn’t be allowed to do it at all on the basis of speech that he doesn’t like.

Filed Under: copyright, copyright term extension, josh hawley, retaliation
Companies: disney

Florida Republican Gov’t Officials Bend Over Backwards To Tell Everyone That, Yes, Absolutely, They Are Punishing Disney For Its Speech

from the please-play-these-videos-in-court dept

We had mentioned just how pathetically ridiculous it was that the Florida legislature was considering stripping the already unconstitutional Disney theme park exemption fully from the unconstitutional social media bill that was passed, with the help of Disney, just last year. And on Thursday, as expected, the Republicans in Florida’s legislature went ahead and approved that change, as well as another one, stripping Disney of a special provision in Florida law that effectively gives it a kind of sovereign power over all of Disney’s land in Orlando.

So a few quick points on this: (1) the social media bill is dumb and unconstitutional, but the theme park exemption was just the unconstitutional icing on an unconstitutional cake, which only served to highlight just how unconstitutional the whole thing was, so stripping it away is performative nonsense. Disney doesn’t deserve an exemption, but it also doesn’t deserve to have the government punish it for its speech. (2) Same deal with the “Reedy Creek Improvement District” setup, which probably shouldn’t be a thing for Disney. But, again, that’s no excuse to swipe it as punishment. But, most importantly (3) all of the Disney stuff is a misdirection smoke show. Florida politicians, and especially Ron DeSantis want everyone to focus on the faux outrage over Disney, rather than the main purpose of the extra legislative session: to even more excessively gerrymander the state’s districts to completely wipe out two heavily Black districts. That’s the real issue here.

However, gerrymandering is less of a Techdirt topic than free speech, so I did want to go back to the Disney thing. Over the last few months, certainly, we’ve called out politicians, both Democrat and Republican, for this extremely unfortunate trend of threatening companies with potential legislative punishment in response to their speech. Now, most of the time, the politicians (and their often vocal supporters) try to explain that it’s okay if all they are doing is passing a legislative change that should happen. However, we’ve disagreed time and time again: even if you like the legislative proposal, the fact that it’s being done as punishment for speech represents a serious 1st Amendment issue.

At least in most of those cases, though, the politicians in question weren’t quite so dumb as to publicly say that they were doing this entirely as retaliation for speech. It’s usually more of a correlation thing, where the company will do something dumb that politician X doesn’t like, and then politician X immediately announces these performative, grandstanding legislative plans that would punish the company — but they don’t directly say they’re doing it for that reason.

But, this is Florida. And Florida, boy, they do stuff differently down there, don’t they? And in this case, it means that Florida’s Republican politicians are literally bending over backwards to give Disney all the evidence they need to run to court and get these legislative changes declared unconstitutional retaliation. They’re not even trying to do the silly little dance where they pretend there are legitimate reasons for these legislative removes. First up, there was Rep. Randy Fine, when asked by the press if this was retaliation, he just outright admitted of course it was:

Desantis’ lap dog Rep. Randy Fine says that Disney must be punished for not behaving property. “It’s time for them to remember that we are not CA. They are a CA company. And we are not interested in their CA values here in this state.” pic.twitter.com/FCHE7wx5bS

— Ron Filipkowski (@RonFilipkowski) April 20, 2022

Specifically, he compares this to when he punishes his kids for “acting up,” which is just going to play great in front of a judge:

But here’s the issue, when my 14-year-old or my 10-year-old ask for special privileges? They behave! And they don’t expect those special privileges if they act like jerks. So Disney is learning that they are a guest in this state.

So, yeah, great. You’re saying that you’re retaliating against the company for “acting like jerks” by… speaking mildly out about legislation they dislike. Or, more specifically, here’s a politician flat out admitting that he’s punishing a company for its political speech.

But it gets worse. Florida’s Lt. Governor Jeanette Nunez, who earlier in this stupidly ridiculous culture war flat out claimed that Disney’s executives “have no right to criticize legislation by duly elected legislators” and stated directly that she and Governor DeSantis “won’t stand for it.” So, she had already made it clear that she didn’t believe the largest employer in her state even had the right to criticize politicians (spoiler alert: they absolutely do have that right, because contrary to whatever Florida’s GOP thinks, the 1st Amendment and free speech is actually a thing).

However, just to drive the point home about how unconstitutional this retaliation is, and the fact that the ONLY reason it’s being done is because of the company’s political speech, Nunez doubled down on Newsmax (of course) on Thursday, and when asked if Disney took back what it said, would Florida reverse course on this new legislation — she said it would!

Newsmax host Eric Bolling: "Is there an opportunity for Disney to change their mind and say we will disregard this whole 'woke' agenda…and would the governor then say, 'fine, you can keep your status but we're gonna keep an eye on you now'?"

Florida Lt. Gov: "Sure!" pic.twitter.com/5E8UKGDVjF

— Justin Baragona (@justinbaragona) April 21, 2022

I mean the whole segment is stupid, but Newsmax’s Eric Bolling (last seen here filing a SLAPP suit against a reporter) asks a stupid question and Nunez just flat out admits that it’s entirely about Disney’s speech:

Bolling: Is there an opportunity for Disney to change their mind and say, ‘we will disregard this whole ‘woke’ agenda.’ We’ll go back to what we originally dealt with, the state of Florida, and would the governor then say, ‘fine, you can keep your status but we’re gonna keep an eye on you now’? How does this play out for Disney? A lot of people like Disney and they don’t want to not like Disney any more.

Nunez: Sure! And we’ve all been to Disney, those of us with small kids have been to Disney. But they have changed their mantra. They have changed what they espouse. It used to be family values. It used to be entertainment that was age appropriate. And now, based on their own admission, they have a not-so-secret agenda to indoctrinate our youth with topics that are very inappropriate.

First off, that’s absolute nonsense. I mean, the only thing Disney “indoctrinates” kids into is the idea that parents need to take out a 2nd mortgage to afford to take their kids there. But really, just the fact that Nunez responds “Sure!” to the idea that if Disney changes its mind, the whole thing might go away — and that the reason for doing this is because of the things the company “espouses,” means this is an exhibit should Disney decide to go to court over this.

This is why we keep calling out politicians who threaten companies over their speech. Because as they get away with it, it only escalates and escalates. We’re going to see a lot more of this kind of nonsense, and the only way to get it to stop is for the courts to smack down these kinds of things for what they are: the government punishing companies for their political speech.

If you want more details on what these bills actually mean for the state of Florida (it would be an absolute disaster), I cannot recommend anything more than Sarah Rumpf’s deep analysis of the impact of the attack on Disney. It quotes tons of Florida experts, including Republicans, admitting that if Disney loses its status, it would wreak havoc on the state’s finances. Also, just the fact that the government is doing this seems likely to scare off businesses from moving to Florida. Miami has been trying hard to set itself up as a tech hub the last few years, but what tech company wants to move there when DeSantis has made it clear he’ll punish you any way he can if he doesn’t like what you say?

I don’t think we’ve ever said anything nice about Disney here, and I don’t think it necessarily deserves the two benefits that the Florida government gave them in the past at all. But the motive here matters. Making these moves as direct retaliation for Disney’s speech violates the 1st Amendment.

Filed Under: 1st amendment, florida, free speech, jeannette nunez, randy fine, retaliation, ron desantis
Companies: disney

It Can Always Get Dumber: Ron DeSantis Moves To Eliminate The Ridiculous Disney Exemption To His Unconstitutional Social Media Bill Because He’s Mad At Disney

from the the-most-ridiculous-place-on-earth dept

It can always get dumber. As you’ll recall, last year Florida man governor Ron DeSantis, as part of his big push to become the new populist leader of ignorant people, pushed for a law to force social media websites to host political content they didn’t want to host. He convinced the subservient Florida Legislature to pass that bill, but not before his staff personally teamed up with lawyers from Disney to insert a buffoonish theme park exemption, that said the law didn’t apply to you if you owned a theme park in Florida. The bill’s author admitted flat out on the floor of the Florida Legislature that this was done to protect Disney from having to worry about the law.

Of course, that was back in the before times, when the GOP wanted to cater to Disney, the largest employer in Florida, and a company that is often deeply connected to that state’s politics. It was little surprise that the company was able to get that obviously, blatantly corrupt and silly carveout, because that’s how it works.

But, over the past month or so, the idiotic narrative has shifted, and now Disney is part of the latest dumb culture war, based on it coming out against a differently stupid culture war bill from DeSantis to enable parents to sue teachers for teaching anything the parents feel is inappropriate for the age of their children — a law that has no purpose other than to create a massive chilling effect in classrooms.

Leaving aside the constitutional issues with that bill, the social media bill was quickly tossed out as unconstitutional on multiple levels by a federal district court judge. Florida has appealed, and that case will be heard soon. While the judge mentioned the Disney exemption, it mattered very little to the overall analysis of why the bill was unconstitutional. It was just, shall we say, additional color. Without it, the ruling was clear, the bill would still be equally unconstitutional. However, the judge noted that the exclusion itself was problematic:

The State asserted in its brief that the [Disney exemption] provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens.

But, of course, now that Disney is no longer a “favored Florida business,” DeSantis (again, his own Legislative Affairs Director, Stephanie Kopelousos, worked with Disney and the legislature to insert — in her words — the “New Disney Language” into the bill) wants to take this benefit away.

Just so we put this all in perspective: Ron DeSantis pushed for and passed an unconstitutional social media content moderation bill, which included an equally unconstitutional carveout for Disney, to protect the largest employer in his state. The following year, because of Disney’s timid opposition to another unconstitutional bill, DeSantis now wants to remove the unconstitutional exemption to the unconstitutional bill to punish Disney for its political speech.

Can they all lose?

DeSantis has put out a proclamation seeking to have the Florida Legislature (who, remember, his office gave the Disney language to) remove the Disney language to punish them. Florida’s legislative session already wrapped up last month, but DeSantis has called them to a new special session for what appears to be a “bash Disney” special session. There are apparently some other anti-Disney proposals that he wants them to consider as well, but the key one is now to remove this exemption.

So, to be clear: Disney is a terrible company for many, many reasons (often detailed here). The social media bill is clearly unconstitutional. The Disney theme park exemption was both unconstitutional and a shameful public display not just of the corrupt level of coordination between Disney and the government, but the shamelessness with which they knew they could do that kind of meddling. The exemption shouldn’t exist. The law shouldn’t exist. The education law is equally problematic, and a full frontal attack on teachers’ autonomy in creating the best lesson plans for students.

But, deliberately attacking a company, and making legislative moves to punish that company in direct response to that company’s speech (especially political speech) is also unconstitutional retaliation. Even if the underlying move — getting rid of the exemption — is the right thing to do. What’s even more ridiculous is that by doing something like this, DeSantis hands Disney all the ammo it needs to go point out that this is retaliation for its political speech (though, in this case, they’re unlikely to bother, since the entire bill is going to be tossed out as unconstitutional anyway).

Of course, it’s quite clear that DeSantis honestly doesn’t care about what’s constitutional, or what’s right, or what’s in any of these laws. He wants to run for President in 2024, and the only way to do that is to fuel the moral outrage machine better than the last President.

And so here we are. In the most ridiculous place on earth.

And I’d rather be anywhere else.

Filed Under: 1st amendment, content moderation, culture war, education, florida, free speech, punishment, retaliation, ron desantis, social media, theme park exemption
Companies: disney