Comment: Disney, Florida gain nothing from Mickey Mouse battle

By Stephen L. Carter / Bloomberg Opinion

The firestorm ignited by Disney’s lawsuit against Florida Gov. Ron DeSantis and other state officials offers further evidence, if any is needed, that our democracy remains deep in its silly season. Disney’s legal claims are straightforward, and most of them seem strong. The politics, however, are utterly inside out.

We need not linger over the facts. Angry about what he sees as Disney’s endorsement of “woke” ideology, the governor has persuaded the legislature to dissolve the Reedy Creek Improvement District, which in its roughly six decades of existence has enabled Disney World to act, in effect, as a self-governing enclave. In its place, the state has created a new entity; whose members are appointed by the governor.

Stripped of a few dozen pages of highly quotable verbiage, Disney’s complaint against DeSantis boils down to breach of contract. In particular, the company claims that certain development agreements into which it entered with the RCID (as it’s known) can’t be abrogated by its newly created successor, the Central Florida Tourism Oversight District.

This is a simple, uncomplicated legal argument. Even the federal government is usually expected to abide by its contracts. In Florida too — although there exist a handful of exceptions — the state’s courts generally treat development agreements between private corporations and local governments as legally enforceable contracts. Thus all that’s necessary is for the Florida courts to decide whether the Oversight District’s actions breached the agreement with Disney, and, if the answer is yes, whether the state has any defense; the sort of dispute that lawyers follow with interest, but is hardly worthy of public attention.

Disney also makes a series of constitutional arguments: that private property is being taken without compensation, that the contracts clause of the Constitution is being violated, that punishing the corporation for its speech violates the First Amendment. I suspect that these claims were added in part to get around the provision of Florida law that requires the modification or revocation of development agreement to comply with subsequent legislation.

My libertarian side agrees with the company on most of these points, but I doubt the courts will ever consider them. For that matter, I doubt that the courts will ever adjudicate the breach of contract claim.

Why?

Because I still expect rationality to prevail. Disney needs Florida; Florida needs Disney. In the end, the parties are likely to find a middle ground.

Meanwhile, the politics of this fight are all bollixed up.

It’s strange to see my friends on the left cheering for Disney. The most obvious reason is the long-standing progressive belief that the RCID was an outrageous transfer of government power to a private entity. Here’s Cory Doctorow, writing in 2005: “[I]t is a uniquely autonomous zone, which hardly has to answer to the state government at all. The zone can build its own nukes, run its own building codes, and generally do whatever it likes.” In his sobering 2001 book “Married to the Mouse,” the historian Richard Foglesong calls the original deal “a testament to the power of pixie dust and Disney mystique.”

That sentiment has never faded. In 2013, for example, when Disney’s expansion demanded two new parking garages, an article in the Orlando Sentinel complained that the corporation wasn’t shelling out any money: “The giant resort will instead have its personal government, Reedy Creek Improvement District, pick up the estimated $85 million tab.”

So to see Disney treated as a progressive hero for defending the RCID is … weird. If the left really wants to take the view that corporations can’t be punished for their speech, or that overregulation is a taking of property, I’d say welcome to the club. But somehow I doubt that their support for Disney is anything other than a momentary convenience. Unless of course they’ve decided to lionize the late Justice Antonin Scalia, whose opinion in an earlier case about takings Disney quotes in its complaint: “when the government uses its own property in such a way that it destroys private property, it has taken that property.”

It’s equally strange to see my friends on the right supporting the DeSantis administration’s effort to bring Disney’s special regulatory district under direct state control. After all, the RCID was a great conservative success story. As the libertarian commentator David Boaz notes, the company’s accomplishments in and around Orlando provide evidence that for-profit entities can provide many public goods that liberals argue only government can create. In 2004, when three successive hurricanes caused massive damage in central Florida, Walt Disney World suffered little harm and was open for business within hours of storm’s end; apparently because, as a for-profit entity reliant on public visitors, it had a strong incentive to take protective measures.

Moreover, the impetus for the dissolution of the RCID wasn’t some sense that Disney was self-dealing — a few years ago, the company even declined to take advantage of a statewide lowering of the property tax — but anger about the company’s positions on contested public issues. A fit of pique is hardly the sort of motive for government action conservatives usually applaud.

Such are the dismal vicissitudes of a world where principle yields readily to the desire for partisan advantage. Progressives are rooting for one of the wealthiest and most powerful corporations in the world, whose special development district the left until recently considered a nefarious government giveaway. Conservatives are rooting for the authority of angry public officials to regulate a private business into submission because they dislike what it has to say.

The silly season indeed. I only hope that we’re able to pass back through the looking glass to the land of principle before we’re stuck forever on the wrong side of the mirror.

Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”