By Gary Symons
TLL Editor in Chief
Many citizens in Western democracies have been alarmed by the way various governments have cracked down on free speech—not just for individuals, but for companies and media organizations.
The trend is particularly alarming for Western brands working in countries like China, where any criticism of government policy can result in harsh penalties, or even the destruction of the local business.
Western fashion brands were hit hard after acknowledging the human rights concerns for the Uyghur people in the Xingiang province, the centre of textile production in China.
Even the billionaire Jack Ma, one the wealthiest people in China, found himself slapped down by the government after what appeared to be a relatively minor criticism of his country’s economic policy.
Ma himself not-so-mysteriously disappeared for months after the incident, and the Chinese government also terminated a planned $37 billion IPO by Ma’s company Ant Group, and later restructured the company, taking most of Ma’s shares.
On a wider scale, Beijing’s anti-LGBTQ government has cracked down on what it sees as “incorrect political positions” and “effeminate” social influencers, who were deemed not just “unmanly”, but also unpatriotic.
Some social influencers literally disappeared for prolonged periods, and emerged months later, their careers ruined.
That such things are happening in China and many other nations around the world is disturbing, but not surprising.
What is surprising is that the same thing is happening in the United States of America, literally the centre of the democratic world, in a movement led by Governor Ron DeSantis in Florida.
Writing about politics is not the business of The Licensing Letter, but identifying threats to the licensing industry is central to our mission, and it’s for this reason we believe it’s past time to identify one of the greatest threats the industry faces in the United States, and indeed, around the world.
For those companies who have already been hit by sanctions against freedom of expression in Florida, the DeSantis government is really the thin edge of the wedge that could greatly limit what films and TV series can be released, what product lines can be launched, which books can be published, and even the internal policies of companies across the nation.
This is a long read, but it is an essential topic. We hope you’ll take the time to read through the entire article, and understand why TLL believes it’s necessary for the industry in general to take a stand against legislation that threatens First Amendment Rights.
If They Can Come After Disney, They Can Come After You
This article is not just about Florida, nor is it pointing a finger at only the Republican Party. Rather, the point of this article is that the creative industries and the licensing industry are under threat in multiple jurisdictions, where governments and even local agencies such as school boards have decided First Amendment rights only apply to opinions they agree with.
However, the heart of the battle right now is in Florida, where a slate of policy changes and new laws passed or proposed is opening the door to a widespread assault on First Amendment rights. In particular, these target the LGBTQ community, racial minority groups, as well as anyone who criticizes government policy.
One of the first indicators that Florida would target major companies and brands came when the Walt Disney Company criticized the state’s so-called ‘Don’t Say Gay’ bill, which forbids classroom instruction on sexual orientation or gender identity. Originally this law was only targeted at younger students, but the state plans to expand the restriction to all students from K to 12.
Disney got dragged into this constitutional morass because the company responded to the concerns of its own employees and customers by issuing a statement on March 28, 2022 that it would oppose Bill HB 1557.
“Florida’s HB 1557, also known as the ‘Don’t Say Gay’ bill, should never have passed and should never have been signed into law,” Disney’s statement said. “Our goal as a company is for this law to be repealed by the legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that. We are dedicated to standing up for the rights and safety of LGBTQ+ members of the Disney family, as well as the LBGTQ+ community in Florida and across the country.”
In the past, a politician might have verbally hit back at Disney, but in Florida the government saw the statement as an opportunity to show no one, not even the state’s largest tourist attraction, could stand against the government’s edicts.
Less than a month later, on April 22, DeSantis signed a law revoking the self-governing status Disney enjoyed in the Reedy Creek Improvement District, where DisneyWorld is located. Since then, Florida has taken over the Improvement District, and appointed five DeSantis loyalists to run it.
Notably, these included Ron Peri, founder of the ministry The Gathering; and Bridget Ziegler, a founder of the conservative education group Moms for Liberty, who also helped craft the Parental Rights in Education Act, now known as the Don’t Say Gay law.
If there was any doubt that the action was taken to punish Disney for criticizing the government, DeSantis dispelled it with his own words. During the bill signing ceremony revoking Disney’s special self-governing district, DeSantis said, “You’re a corporation based in Burbank, California, and you’re going to marshal your economic might to attack the parents of my state. We view that as a provocation, and we’re going to fight back against that.”
American Conservatives Also Oppose Florida’s Attacks on the First Amendment
The widely renowned conservative writer and lawyer David French is among the many Republicans who have condemned the Don’t Say Gay law as an attack on the First Amendment. Interestingly, French points out that these kinds of attacks are not limited to hard right Republicans, but have been attempted by liberal Democrats as well.
French points to the experience of the Chick-fil-A restaurant chain, which ignited a controversy when its CEO publicly opposed same sex marriage, and contributed millions of dollars to organizations considered hostile to LGBT rights.
While the resulting consumer boycott was not a violation of the First Amendment, because it was the result of individual choice by customers, French says the actions of the San Antonio city council did violate the right to freedom of expression.
In 2019 the council voted to bar Chick-fil-A from the San Antonio International Airport due to the company’s “legacy of anti-LGBT behavior.”
“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,” French argued. “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.”
French believes the political right in Florida, and some other states, are now doing the very thing they criticized when Chick-fil-A was punished by the City of San Antonio.
“All too many Republicans have made an about-face on free speech,” French says. “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.”
The Stop WOKE Act: The Growing Chill on Free Speech in Florida
To Disney’s great credit, it has not changed its attitudes towards LGBTQ people and their right to live, work and play just like any other American. Instead, in March, Walt Disney World revealed it is scheduled to host what has been billed as “the largest LGBTQ+ conference in the world” later this year.
However, with Florida having made an example of the world’s largest entertainment company, it’s not surprising to see other companies appearing to cave into the state’s version of politically correct speech.
At the moment, Florida’s obsession with restricting ideas is focused primarily on schools, for the very practical reason that schools are government institutions that politicians can more easily control. However, the types of ideas that are being suppressed are chilling to consider, particularly when you consider how Florida retaliated against Disney, a private company.
For example, textbook publisher Studies Weekly, which supplies books to 45,000 Florida schools, recently removed all references of race from a history lesson about the civil rights activist Rosa Parks, in order to get approval from a Florida committee.
Parks famously helped spark the Montgomery, Alabama Bus Boycott after she refused to give up her seat on a bus to a white man in 1955.
The first draft of the textbook said, “The law said African Americans had to give up their seats on the bus if a white person wanted to sit down.”
The second version created for Florida’s review removed the reference to Alabama’s racist law, and stated, “She was told to move to a different seat because of the color of her skin.”
That too was deemed unacceptable, so Studies Weekly removed any reference to race with this version: “She was told to move to a different seat.”
Similarly, Studies Weekly also removed references to racial discrimination in a history lesson about the Jim Crow laws that rose after the Civil War. Among other things, the lessons were changed to say it was illegal for “men of certain groups” to be unemployed, and that “certain groups of people were not allowed to serve on a jury.”
These edits are based on the ideas expressed in Florida’s so-called ‘Stop WOKE’ Act that essentially makes it illegal to teach any topic that might make white people feel badly about the way other races have been treated.
For now, this censorship is mainly restricted to Florida schools, but one can easily see from the Disney example how publishers, filmmakers, and other creatives will be treated if they produced a film or book like Twelve Years a Slave, or a children’s program producer that includes LGBTQ characters in its stories.
Private companies may think they are immune to censorship, but as French pointed out in his essay in The Atlantic, the First Amendment was enacted so that “ the Stop WOKE Act may find it very difficult to do business in those jurisdictions, just as suspected communists in the McCarthy era found it impossible to work in the film industry. “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.” Those who oppose the architects of laws like the Stop WOKE Act may find it very difficult to do business in those jurisdictions, just as suspected communists in the McCarthy era found it impossible to work in the film industry.
Unfortunately, Florida is far from finished with its assault on First Amendment rights.
Florida Laws That Suppress Freedom of Speech
There are currently four current or proposed laws that critics say will violate the First Amendment, and restrict freedom of expression for Americans and US corporations operating in Florida.
1. The Parental Rights in Education Act
The first is the Parental Rights in Education Act, aka the Don’t Say Gay law, already discussed above. Now extended to all high school students, this law resulted in a school principal being fired, because the school had shown images of Michelangelo’s statue of David, which the private school’s board considered pornographic. So, apparently Renaissance art is now defined as pornography.
2. The Individual Freedom Act
The second law to attack freedom of expression is the ironically named Individual Freedom Act – better known as the dog whistle themed Stop WOKE Act—which is also discussed above. It limits how schools and colleges can teach issues of race, sex or national origin. While it was passed by DeSantis on April 22, 2022, it was also suspended by a temporary injunction by US District Judge Mark Walker, who found it to be unconstitutional.
Unlike the Don’t Say Gay law, Stop WOKE also specifically allows the state to interfere in the affairs of the private sector, because it also impacts on diversity, inclusion and bias training in businesses, as well as affirmative action hiring practices.
In recent years TLL has reported on the great strides companies are making in hiring creatives from underrepresented communities, resulting in story telling that better reflects the social and racial makeup of America. Some companies, like Honeyfund.com, are already fighting back against this overreach, as it filed a suit saying its free speech rights are curtailed because the law infringes on company training programs stressing diversity, inclusion, elimination of bias and prevention of workplace harassment. Under the Act, companies with 15 or more employees could face civil lawsuits over such practices.
In suspending the implementation of the Stop WOKE Act, Judge Walker invoked the novel 1984 by George Orwell, essentially accusing DeSantis and the Florida State Legislature of trying to create “its own Ministry of Truth under the guise of the Individual Freedom Act, declaring which viewpoints shall be orthodox and which shall be verboten in its university classrooms.”
3 & 4. Acts Relating to Defamation
The next shoe to drop, predictably, is aimed at the news media, and this is an area where I have, unfortunately, a great deal of bitter experience. Governments are frequently tempted to attack news media because the main task of news organizations is to hold governments to account.
Years prior to joining The Licensing Letter, I spent 25 years working as an investigative journalist in Canada, including nine years at the national broadcaster CBC News. Canada has similar constitutional protections as the United States, under Section 2B of its Charter of Rights, and as a young reporter I naively thought these rights would always be respected.
In reality, I discovered these rights must be fought for, on a daily basis. Before my career in investigative journalism ended, I had been in court 14 times on a variety of free speech issues, and I was detained by police for a variety of reasons at least eight times, usually because they didn’t want me taking photos around controversial crime scenes.
On one occasion I was threatened with a contempt of court charge for refusing to name a source, and on another I was charged with contempt of court while challenging a law that restricted our ability to name a suspected serial rapist and murderer. I was also sued or threatened with lawsuits for defamation many times, including one threat from the Prime Minister’s Office while revealing a scandal about illegal deportations.
So, journalists are accustomed to defending freedom of expression; it comes with the territory.
Now, however, Florida is enacting new laws that will make it easier for governments and public figures to sue media companies and reporters for defamation. As well, while the bills are aimed at news media, they would also make it easier to sue anyone who might be considered to have defamed someone, such as filmmakers who portray stories based on actual events.
Right now, it’s common for the media to print or broadcast allegations of government wrongdoing from various critics or opposition party members, and typically those allegations are further investigated over time. Reporters can do that because a plaintiff has to show that, if the allegation is later proven false, the news organization also knew it was false at the time it first reported the issue; a concept known in the US as ‘actual malice’.
The two Florida bills would restrict those protections. The House bill, for example, would require a court hearing a libel case to find actual malice (that is, knowing falsity) if “the defendant willfully failed to validate, corroborate, or otherwise verify the defamatory allegation.”
Fabio Bertoni, the general legal counsel for The New Yorker magazine, says that change will create a massive chill in the news media, preventing reporters from exploring potential scandals.
“Although journalists routinely try to verify allegations they report on, there are many instances where what’s notable are the allegations themselves,” Bertoni says. “This is often the case with statements made in the course of litigation or official public meetings or government reports. It forms the basis for what’s known as the fair-report privilege, which holds that reporters may freely report the contents of official government documents and proceedings and litigation without independently verifying the underlying truth of each factual assertion.”
In the beginning of my career, as a crime reporter, I was protected from libel suits by similar provisions in Canada known as ‘qualified privilege’ which held that reporters could quote from court or government documents without fear of being sued.
These provisions are among the most basic that allow for a free press.
One of the others involve the so-called ‘anti-SLAPP’ laws in the US (Strategic Lawsuits Against Public Participation).
SLAPP suits are often launched by governments or corporations to quell criticism by burying their critics under the expense and time-consuming work of defending multiple lawsuits. Typically, judges who find anyone filing these types of frivolous, ill-intentioned lawsuits can throw the case out of court and award damages to the defendants.
Now, however, Florida wants to eliminate the benefits of its current anti-SLAPP law. Among other things, this would mean defendants could no longer recover their legal costs for a SLAPP suit, and governments could bury critical stories simply by launching multiple lawsuits against news media organizations.
Unfortunately for the licensing industry, these changes don’t just impact news media, but anyone producing non-fiction books; fiction based on real events; blogs and podcasts; social media posts; documentary films or TV series; and films or TV series based on real events. One can just imagine how the filmmaker Oliver Stone’s career would have gone, had there been no protection against frivolous anti-SLAPP suits.
Even more dangerous is a provision that grants much greater power to religious organizations, as the House bill would deem it defamatory to claim that a person or organization is racist, sexist or homophobic if their actions are based on their religious belief.
So, for example, a church could actively promote slavery based on race, but it would be illegal to call them racist because the church could argue its opinion was based on its religious doctrine. This feature alone opens so many avenues for abuse that it would make it virtually impossible to express your opinion about anyone, if that person claims a religious belief. More importantly, it does away with the other major defence against defamation suits, that being the right of Americans to express an opinion.
The National Picture
Bertoni, the general counsel for The New Yorker, also revealed in March that he had been asked by a colleague in the publishing industry whether it was safe to publish in Florida.
“A Florida colleague recently said that she had received questions from publishers asking if they should stop their content from being accessible in the state, through Internet geo-blocking, in order to limit the likelihood of a lawsuit there,” Bertoni said. “Publishers fleeing the state, and less news and information for Florida residents about their government, is an obvious potential outcome of the libel regime that DeSantis is pushing.”
Unfortunately, Florida is not the only state enacting laws that attack the First Amendment; it’s merely the most aggressive so far.
Since last year, nearly 20 other states have passed similar legislation, and several of these laws are the subject of pending litigation. Additionally, in October of 2022, Republicans in the U.S. House of Representatives introduced a national “Don’t Say Gay” bill that would place even more restrictions on classroom instruction than does the Florida legislation.
While that bill is virtually guaranteed to die in the House, it is an indicator of a national movement to remove the free speech rights of some Americans, and to give authority over what is permissible speech to governments and, in some cases, to religious organizations.
According to research by the Movement Advancement Project, at least 30 states in the US considered bills between 2020 and 2021 that would censor or restrict inclusive curricula in schools. Bills in 26 states focused on banning classroom discussions of race and history, and 10 states passed those acts into law between 2020 and 2021. Another 14 states considered their own version of the Don’t Say Gay law.
The Takeaway for the Entertainment and Licensing Industries
In many ways, the First Amendment is the foundational bedrock for the success of America’s media and entertainment industries, as well as the licensing industry that works within those sectors. Because American journalists, writers, musicians and filmmakers are free to say what they want, American productions became dominant globally, telling compelling stories without fear of legal retribution or government interference.
Or, at least they did for the most part.
The major exception was during the McCarthy era, when fears raised by the Cold War with Russia created a hysteria against communism.
In Washington, conservative watchdogs led by Senator Joe McCarthy set their sights on alleged ‘Reds’ or communists they believed were working in Hollywood, which they considered unacceptably liberal.
The famous Hollywood Ten resisted the McCarthy witch hunt and declared the hearings violated their First Amendment rights, but all were convicted of obstruction and served time in prison.
As well, under pressure from Congress, Hollywood studios were forced to blacklist more than 300 screenwriters, actors and directors. None were proven to be communists; they simply were not cleared by McCarthy’s committee. Those on the blacklist included top Hollywood writers and filmmakers like Orson Welles, Dashiell Hammett, and Arthur Miller.
Today, the pressure is primarily on teachers and professors, who are being told they cannot accurately teach lessons about history without the fear of losing their jobs, being blacklisted, or even facing legal action.
Secondarily, books and films are being banned from schools and libraries, and publishers are contemplating pulling out of certain markets where they are now under increased legal jeopardy.
Sadly, there is a very real prospect that America will experience an altered version of McCarthyism, in which speaking about racism or discrimination becomes illegal.
For all those reasons, I believe it is time for the affected industries, including publishing, film, television and licensing, to take a stand against the rising wave of a new McCarthyism.