One of the bewildering things about being a conservative in a populist age is the sheer speed at which populists will shift their opinions, including on allegedly bedrock constitutional values, to satisfy the popular bloodlust of the moment. I’m old enough, for example, to remember all the way back to 2019. In March the San Antonio City Council voted to bar Chick-fil-A from San Antonio International Airport. The reason? It opposed Chick-fil-A’s alleged “legacy of anti-LGBT behavior.”
Republicans were rightly furious at the decision. So long as a company complies with applicable antidiscrimination laws and applicable health, safety, and workplace regulations, a city has no legal basis for punishing it for its perceived political or religious point of view. It’s true that Chick-fil-A does not have a “right” to operate in the airport, but it did have a right not to be denied access to business because of its First Amendment–protected expression.
Texas acted quickly to protect liberty, and in July 2019 Governor Greg Abbott signed the so-called Save Chick-fil-A bill into law, declaring that “Texas protects religious liberty,” and “no business should be discriminated against simply because its owners donate to a church, the Salvation Army, or other religious organization.”
Let’s fast-forward three short years and move states, from Florida to Texas. The Florida legislature raced to pass a law revoking the Walt Disney Company’s special tax status. The reason? Florida, led by Governor Ron DeSantis, is overtly and explicitly attempting to punish Disney for the company’s opposition to Florida House Bill 1557, which bans “classroom instruction” on “sexual orientation and gender identity” in kindergarten through third grade and in a manner that isn’t “age appropriate or developmentally appropriate” in all grades, K–12.
Florida became San Antonio, except on a much bigger scale, to thunderous online right-wing applause. Popular podcaster and Daily Wire co-founder Ben Shapiro tweeted, “Corporations have an interest in lobbying on issues that directly impact their business. If they choose to engage in politics outside their purview, they will be treated with all the aggression inherent to the political sphere, and they will deserve it.”
Radio host and Washington Post contributor Hugh Hewitt also tweeted his approval: “Bravo @RonDeSantisFL. If @Disney wants to play politics, it should expect political consequences. Same happened to @Delta @CocaCola and @MLB when they dove into GA’s voting reform debate. You get what you ask for.”
Shapiro and Hewitt are both attorneys. They’re friends, and I’ve known them a long time. But they’re dead wrong on this issue. “You get what you ask for” or “they will deserve it” are not principles of constitutional law or a free society. In fact, the opposite is true. The First Amendment affirmatively protects the right of private institutions to engage in political speech, and that protection extends to safeguarding them from government reprisal for their speech.
There’s some understandable confusion on this point. Lots of normal folks look at Chick-fil-A or Disney and say, “Wait, no one has a right to operate a chicken restaurant in an airport, and no company has a right to a special tax district in a state, so how can it violate their rights when the government revokes a privilege?”
To understand, let’s think about employment nondiscrimination law. I may not have a right to any job I apply for, but I do have a right to not lose access to that job simply because of my race. In other words, when entering the marketplace, people of all races should have equal access to the career opportunity.
In public employment, a similar principle applies to viewpoints. To take an example from my legal career, a professor at a university does not have a right to be promoted to full professor. In fact, in many schools, it’s difficult to receive the promotion, and you have to accumulate a substantial record of academic achievement before you can even be seriously considered.
At the same time, however, I do have a right to not be denied access to that promotion because of my political viewpoint or religious faith. A department cannot declare that no conservatives or no Christians need apply.
But do these principles apply to corporations? Indeed they do. In 1996 the Supreme Court decided a case called O’Hare Truck Service v. City of Northlake that is deeply instructive in the present moment. The facts of the case are simple. The city maintained a “rotation list” of towing companies to perform towing services for its police department. The process was simple—for each new tow request, the police simply called the next company on the list.
In 1993 the mayor of Northlake asked the owner of O’Hare Truck Service for a political donation and for his support for reelection. The owner, John Gratzianna, refused the donation request and supported the mayor’s opponent. Gratzianna’s candidate lost, the mayor won, and then the city promptly removed O’Hare from the towing rotation list.
The Supreme Court ruled against the city. Writing for a 7–2 majority, Justice Kennedy called back to a line of cases noting that there are times when “denying a benefit” can have the same effect as direct coercion: “[I]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’”
In plain English, this means that the government cannot use its awesome power of contracting, employment, permitting, and taxation to reward political and ideological friends and punish political and ideological enemies. Indeed, the Court specifically dismissed the government’s so-called patronage interest as an excuse for viewpoint discrimination in government contracting.
Given the vast economic power and authority of federal, state, and local governments, the Court’s ruling is indispensable to a free society. Granting the government carte blanche to extend or withhold benefits on the basis of politics or ideology would create a two-tier or multitiered society, but with the caste system based on politics rather than, say, race. This strikes at the heart of an American social compact that protects the free-speech and free-association rights of every American, equally.
But there’s a final point. One way to avoid the temptation to exercise government power punitively is to exercise government power less. America is positively overrun with crony capitalism—the practice of granting government favors to corporations or industries, often for the purpose of spurring economic development and competing with other states to draw new employers into towns and cities. Governments will enter into bidding wars with each other, fashioning the best package to, say, lure Toyota or Honda or Tesla into their territories.
This complex system of tax breaks and benefits creates entanglement between business and state that leads both parties to believe that they should have outsized influence on the other. The process of picking economic winners and losers, even if not done on the unlawful basis of race or ideology, is fraught with unfairness and ripe for corruption. But it’s one thing to oppose crony capitalism broadly and another thing entirely to use opposition to crony capitalism as a pretext for targeting only disfavored corporations.
Last week I wrote an extended piece arguing that all too many Republicans have made an about-face on free speech. In their crackdown on “wokeness,” they’ve become exactly what they once opposed—fierce partisan warriors who’ll forsake the Bill of Rights to reward their friends and punish their enemies. With the passage of Florida’s bill targeting Disney, it’s unambiguous now. As the right cheers Ron DeSantis, it is forsaking the First Amendment.