The Supreme Court's Citizens United decision was a pain in the neck for Democrats. Now, it could be used to their advantage in the Disney v. DeSantis feud.

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  • Disney lawyers argue Gov. Ron DeSantis is retaliating against the company for protected speech.

  • A legal expert told Insider precedent was set in the Citizens United v. FEC Supreme Court case.

  • Democrats have criticized the ruling since 2010 but may now benefit from its power against the GOP governor.

When the Supreme Court in 2010 handed down its ruling on Citizens United v. FEC, Democrats were scandalized. Then-President Barack Obama warned it would "open the floodgates" to corporations influencing politics by diminishing restrictions on corporate speech.

But now, as Disney v. DeSantis has become an actual legal battle — with the Walt Disney Corporation suing the Florida governor for retaliating against it after CEO Bob Iger criticized DeSantis' policies — the political roles have reversed. Liberals remain scandalized (albeit for different reasons) but now seek the protections the Citizens United ruling offers.

Citizens United explained

The 2010 ruling held, in a 5-4 decision, that corporations can spend as much as they like to convince people to vote for or against political candidates as long as the spending is independent of the candidates themselves, siding with the conservative nonprofit group that argued the FEC should not have been able to restrict it from airing a film critical of presidential candidate Hillary Clinton close to the 2008 election.

The court had previously upheld certain corporate restrictions, such as a time limit before elections after which companies could not fund political advertisements, arguing that the limits played a role in preventing corruption. Justice Anthony Kennedy wrote in the majority opinion that the expenditures had a small chance to influence political outcomes and limiting "independent political spending" from businesses and other groups, such as unions, violates their free speech rights.

"The First Amendment does not allow political speech restrictions based on a speaker's corporate identity," Justice Kennedy wrote.

"Imagine the power this will give special interests over politicians," Obama argued at the time, speaking in the Rose Garden after scolding the Supreme Court justices during his 2010 State of the Union address for the decision.

Democrats quickly made repealing the ruling a rallying cry. At the same time, during the lead-up to the 2012 election, pro-business Republicans like presidential candidate Mitt Romney argued "corporations are people," and corporate spending is their speech, drawing further ire from liberal voters.

Despite Democratic protests and attempts to overturn it, the ruling has remained in place for over a decade — but now, with Disney execs objecting to DeSantis' controversial "Don't Say Gay" bill and other policies, liberals are suddenly keen to protect at least one company's speech.

Representatives for the Walt Disney Corporation and the offices of Senator Romney, President Biden, and former President Obama did not immediately respond to Insider's requests for comment.

A political reversal

As recently as 2020, a decade after the Citizens United decision, President Joe Biden lambasted the ruling: "It's not enough to just end Citizens United — we have to eliminate all private dollars from our federal elections."

Though he didn't mention the decision by name, Biden struck a different tone on Saturday, joking during the White House Correspondents' Association Dinner while discussing the Disney feud, saying: "I believe in the First Amendment, and not just because my good friend Jimmy Madison wrote it," before adding: "I had a lot of Ron DeSantis jokes ready, but Mickey Mouse beat the hell out of me and got there first."

"I think all politicians are opportunistic to some extent. All humans are," Michael C. Dorf, a constitutional law professor at Cornell University, told Insider.

Dorf suggested, for example, that anybody could support liberal tax reform while still maximizing the deductions they are eligible for or support minimal federal intervention nationwide, except on issues they're passionate about, which they think should be subject to federal law: "I think there's a lot of that opportunism, you could call it hypocrisy, in politics — it just seems sort of especially blatant in this case, but I think it's a difference of degree rather than kind."

He added: "The people who, for the most part, don't like Citizens United are liberal-leaning, but, in this case, they're sort of on the side of the big corporation and against the government, so in that sense, there's a bit of a reversal. But there's also a bit of a reversal from the other direction."

Dorf highlighted that DeSantis' platform had taken the traditionally pro-business Republican ideology and turned it on its head, with the GOP Governor aiming at one of the largest employers in the state by trying to strip the theme park of its self-governing district status and drawing condemnation from his own party for the anti-corporate tactics.

In response to a request for comment by Insider, Governor DeSantis' office did not respond to questions about retaliation or the right to political speech, but referenced comments made during an event in Jerusalem last week, where DeSantis said: "the idea that somehow being pro-business means giving companies their own governments, that is not what a free market is all about, last I checked. In fact, they've been treated much different than Universal, SeaWorld, and all these other places, and so they're upset because they're actually having to live by the same rules as everybody else. "

The Reedy Creek Improvement District was created by the Florida state legislature in 1967, giving the district its own taxing and governance structure, similar to a county government. Landowners — primarily Walt Disney World — pay for municipal services like water, infrastructure development, and security.

"It's very odd that DeSantis is sort of trying to build a national political brand on being anti-woke and what he seems to mean by being woke is that people who are woke are censorious, right? They're telling you what words to use, and they're trying to control it," Dorf told Insider. "And yet here he is, using the power of government to retaliate against the company for exercising its right to political speech."

Disney's likelihood of success

Dorf said he expects that Disney will prevail against DeSantis on the grounds of the precedent set in Citizens United — as well as other cases, as he outlined in a blog post — though Disney's success in court is not dependent on the Supreme Court's rulings being ideologically agreeable, just legally sound.

"The complaint draws some of its most powerful evidence from DeSantis' own unintentionally ironically titled and blandly platitudinous memoir 'The Courage to be Free.'  Technically, allegations in a complaint aren't 'evidence,' but if the case goes to trial, there would be little difficulty getting the underlying statements into evidence," Dorf wrote in his analysis of the case.

He added: "Lawyers for the defendants (DeSantis plus seven other Florida officials) will likely argue that the legislature had mixed or unknowable motives, but no fair-minded person can read the recent events as anything other than retaliation."

However, because Disney is not seeking damages — only a reversal of the revocation of its district status — it's unclear what a settlement between the state and the company might look like.

"Nor do I think, if DeSantis is about to launch a presidential campaign, will he likely want to settle," Dorf told Insider.

"He might be content to let this drag out in the courts. And even if he loses, he can then have it as a badge of honor like: 'I went to bat against this woke corporation' — or whatever he wants to call it."

May 1, 2023: This story has been updated to include a response from the office of Governor DeSantis.

Read the original article on Business Insider