Floyd Abrams weighs in on the Disney controversy and corporate speech — FAN 338.2

What follows is an outgrowth of a commentary authored by Robert Corn-Revere (“Punishing Disney for Opposing Florida’s ‘Don’t Say Gay’ Law poses Serious First Amendment Problems”). That commentary triggered the following responses:

• Ira Glasser, “On Corporate Speech, the First Amendment, and Disney’s Criticism of Florida’s Anti-Gay Law; Along With a Reply to Neuborne and Chemerinsky,” which ended with some remarks in response to a recent op-ed by Burt Neuborne and Erwin Chemerinsky (“No, Ron DeSantis’ Battle With Disney Isn’t Just Political Grandstanding”).
• Yesterday's FAN contained a rejoinder by Burt Neuborne and Erwin Chemerinsky.

In this issue, Floyd Abrams offers his views on the above matters. Then on Monday, Mr. Glasser returns with yet another volley in this exchange.  

Two aspects of the Neuborne-Chemerinsky offerings seem to be of special interest — one relating to what they said and the other to what they did not.

The first is startling. A dozen years after the Citizens United opinion was issued, these two distinguished and justly admired scholars who have repeatedly criticized the ruling through the years now acknowledge that, after all, given the “facts” of the case, the Court was correct to rule in Citizens United’s favor. Hola!

The second is that they wisely make no effort to support the hyperbolic response to the decision of so many of our usually better-grounded publications. The Washington Post's editorial response to the ruling was that “corporate money, never lacking in the American political process, may now overwhelm . . . the contributions of individuals” — precisely the opposite has occurred. That of The New York Times was that the effect of the ruling would be “to thrust politics back to the robber-baron era of the 19th century” — nothing of the sort has occurred. So far as I can tell, there have been no apologies.

I don’t disagree that nonprofit entities such as the ACLU and Citizens United play a different role in our society than for-profit ones. But the entrance of Disney into the fray of advocacy about public policy issues illustrates the pro-First Amendment nature of such conduct and why it should be constitutionally supported and not limited.

Full disclosure: Mr. Abrams represented Senator Mitch McConnell in the Citizens United case and participated in oral argument in the case.