What bad decisions by Ron DeSantis and Gavin Newsom have in common | Bruce Ledewitz

We’re citizens — not subjects. The two governors ignored that fact in their unconstitutional haste to punish two corporations

March 23, 2023 6:30 am

Florida Gov. Ron DeSantis (Image via the Florida Phoenix)

It is helpful when a Republican governor and a Democratic governor engage in similar reprehensible conduct. It allows people to see important issues of freedom and democracy without the usual partisan defenses.

In this case, both Florida’s Republican Gov. Ron DeSantis and California’s Democratic Gov. Gavin Newsom have used public resources to punish corporations that were engaging in lawful, constitutionally protected conduct.

The stories are well-known, because neither governor made any attempt to hide what was going on.

In Florida, in 1967, Disney was awarded a special tax district for its then-developing Disney World theme park. This essentially allowed Disney to function as its own municipal government

Then, in March, 2022, DeSantis signed legislation barring discussion of sexual orientation and gender identity in certain elementary grades. Critics called it the “Don’t Say Gay” law. Bob Chapek, then CEO of Disney, criticized the law.

In retaliation—DeSantis even wrote in a fundraising letter that “Disney chose the wrong guy” to pick a fight with—the governor first tried to revoke the special Disney tax district altogether, and when that actually proved too costly for the taxpayers of nearby counties, signed legislation removing Disney’s authority to appoint the members of the tax district’s board.

In California, Walgreens had a $54 million contract with the state for the purchase of specialty pharmacy prescription drugs for the prison healthcare system. Then, in early March, after 20 attorneys general in states with restrictive abortion laws had threatened the corporation with legal action, Walgreens confirmed that it had agreed not to sell the abortion pill, Mifepristone, in those states.  

In retaliation—Newsom’s announcement cited this as his reason—Newsom cancelled the contract and ordered state officials not to renew it.

Both these actions were flagrantly unconstitutional—though it is hard to imagine lawsuits being brought or succeeding. 

In Florida, Disney was engaging in free speech, indeed the heart of free speech. The First Amendment protects all of us, including corporations, from government reprisals for criticizing government policy. Just imagine the government reopening a person’s disability status because she made unflattering remarks about President Joe Biden.

In the California example, the Constitution grants the power to regulate interstate commerce to Congress, not the states. Under this doctrine, called the extraterritoriality principle, states may not punish companies because of their actions in other states. It is none of California’s business what product Walgreens sells, or doesn’t sell, in other states.

Despite the unconstitutionality, it is no surprise that neither company sued. Large numbers of consumers agreed with the positions taken by the respective governors. A lawsuit would undoubtedly have led such potential customers to take their business elsewhere. 

Nor was success in such a lawsuit guaranteed. DeSantis shifted his rhetoric, claiming that “Disney has gotten away with special deals from the State of Florida for far too long.” Of course this was a mere distraction—DeSantis would have been happy to leave Disney alone if the company had supported his policies—but a judge would have a hard time calling the governor a liar.

In California, Walgreens would undoubtedly have succeeded in regaining its right to bid on a new prison drug contract, but a judge would have been unlikely to reverse the inevitable grant of the contract to some other company.

But the damage that these actions bring go far beyond mere unconstitutionality. 

This is government tyranny. DeSantis and Newsom have violated the basic foundation of a free society. In our system, government and politics are strictly separated. When I apply for a zoning permit, I don’t expect to be asked whether I am a Republican or a Democrat.

Because of this, I don’t have to look over my shoulder as I conduct my personal affairs. I don’t need to cultivate politicians to live my life. If I obey the law, I can do and say whatever I like.

This is what it means that we are citizens and not subjects. DeSantis and Newsom are treating the resources of Florida and California as if they owned them. If the special district was good for Florida, it should have remained as it was. If Walgreens was providing drugs at a savings for taxpayers, that should have been the government’s only interest.

This descent into government bullying has not really been criticized, even by political opponents. Instead, such bullying has become accepted and expected.

That acceptance is consistent with other ways that Americans have  become tolerant of tyranny. Conservatives applaud when thugs with rifles show up at peaceful anti-gun protests in order to intimidate their political opponents. Liberals applaud idiot, privileged Stanford law students shouting down a federal judge.

Just to be clear about that one, most law students in America—my students certainly—understand that you debate speakers you disagree with; you don’t silence them.

The idea that we should use government power to influence culture and politics reemerged recently among a small group of self-proclaimed “post-liberals.” These are the people who admire Viktor Orbán, the Prime Minister of Hungary, where this approach is openly practiced.

Now the idea has spread to mainstream politicians and is now influencing the public. 

But it is a very dangerous idea. 

Many individuals undoubtedly will boycott Disney over its policies and Walgreens for its failure to protect the right to abortion. As private citizens, that is their right.

But in the American tradition, rooted in the vision of the framers of the Constitution, and firmly held since, the people have their own space, called civil society, which leads government; not the other way around. 

Government is merely our servant.

For partisan reasons, the usual guarantors of freedom—groups like the Federalist Society and the ACLU—are asleep. They fail to notice this creep of government tyranny. Or worse, they encourage it and hope to get a chance to use government for their own political ends.

So we citizens will have to protect ourselves in old-fashioned grass-roots style. As voters, we will have to discipline not just our political opponents, but our friends as well.

By all means, if you are offended, don’t go to Disney World. But tell DeSantis to leave private speech alone.  

Similarly, don’t shop at Walgreens and make sure the company knows why it has lost a customer. But let Newsom know that his job is to enter contracts that serve the taxpayers, and not his political leanings.

America is not Hungary. Let’s keep it that way.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.