The New Right’s Dangerous Attitude on Corporate Rights
The turn against corporate speech rights shows how some conservatives are willing to violate principles for partisan gain.
To every thing there is a season, and a time to every purpose under the heaven: a time to be born, and a time to die; a time to plant, and a time to pluck up that which is planted; a time to kill, and a time to heal; a time to break down, and a time to build up … A time to love, and a time to hate; a time of war, and a time of peace. —Ecclesiastes 3:1-3, 8
In 2010, the conservative legal movement claimed a major victory as the Supreme Court ruled in Citizens United v. FEC that corporations enjoy robust First Amendment rights and are thus free to finance political advertisements. Citizens United was the harvest of 30 years of careful sowing by an extensive network of conservative legal institutions that had propelled six of the nine sitting justices all the way onto the Supreme Court. Progressive legal analysts quickly labeled it the “Corporate Court” or “Big Business Court.” Legal historians may well look back at 2010s as a highwater mark of corporate rights unmatched since the Lochner era in the early 20th century, when the court struck down a New York state law that had set a maximum work week for bakers, and over the next three decades struck down other regulations regarding transportation, banking, and other industries.
But whereas progressives led a post-Lochner backlash that secured a sweeping expansion of federal government oversight of the economy, corporate rights are now under attack by the very conservative movement that once secured those rights. The fusionist political priorities of the conservative legal movement, forged in the business-friendly Reagan Revolution of the 1980s, are increasingly out of step with today’s new right and its populist critique of corporations as aiders and abettors of a woke kulturkampf.
Thus, when Disney issued a somewhat tepid press release signaling the company’s opposition to Florida’s new law prohibiting classroom instruction on gender identity or sexual orientation in early elementary school, it sparked a conservative backlash and consumer boycott. Accusations that Disney harbors pedophilic groomers went viral, to the delight of activists who wanted to punish corporations for taking the other side in the woke wars.
Florida Gov. Ron DeSantis rode that wave of reactionary sentiment by revoking Disney’s special improvement district, which had allowed the company to maintain its own infrastructure and provide other municipal services since 1967. Disney’s self-governance—once lauded by conservatives who saw it as a model alternative to government inefficiency—has been preempted in retribution for the company exercising its free speech rights.
In Texas, the conservative turn against corporate speech rights has targeted Big Tech, with Republican Gov. Greg Abbott signing a law to prohibit viewpoint moderation by social media platforms. Abbott claimed that the law would “protect first amendment rights” by guaranteeing conservative users, whom he claimed were being silenced, a right to say whatever they want on a platform owned by somebody else. It is a definition of free speech more in keeping with the progressive notion of “First Amendment collectivism”—in which the government regulates speech to ensure that certain communities are heard—rather than anything in the fusionist conservative tradition, which roots speech protections in private property rights.
These are not marginal actors on the radical periphery of the conservative movement. That not one but two Republican governors seen as potential successors to President Donald Trump are headed down this road tells you something about the future of conservative ideology. The old fusionist detente between social and business conservatives is breaking down.
Certainly, it is true that the political bent of companies like Disney has changed. There is a meaningful cultural distance between the Disney of the 1980s and 1990s, with its wink-wink penchant for camp villains, and that of Disney in the 2020s and its stilted gestures toward more diverse casting and plot lines. It is understandable that social conservatives would feel alienated by those changes, but the attempt to punish Disney constitutes a far greater threat to conservatism than anything found in a Disney movie or theme park.
The pesky thing about principles is that they must be universally applied. If a position is defended only when it is in one’s own immediate self-interest, then it is not truly rooted in principle. A conservative who supports free speech rights only as long as the speech being protected is conservative is not actually defending the principle of free speech but merely grasping at whatever rhetorical justification happens to be at hand while waging the latest skirmish in the culture war.
That does not mean that principled rights are mere altruistic abstractions. Our word “toleration” once evoked the image of a person voluntarily enduring physical pain, like that from a sharp goad or whip. We extend basic rights even when it pains us to do so for the sake of protecting our own rights should the tables be turned. Much of the American rights tradition originated with the English struggle against monarchical absolutism, such as the Anglican offer of religious toleration in 1689 to the dissenters they had once viciously persecuted, a mutual protection pact sealed by Protestant paranoia about a future Catholic restoration to the throne.
The modern patron saint of toleration is Sir Thomas More, the 16th century high chancellor of England who lost his head for his defense of freedom of conscience. In the 1966 movie dramatization of his life, A Man for All Seasons, More refuses to abuse his legal authority in order to jail a political enemy, saying, “I’d give the Devil benefit of law, for my own safety’s sake.” This version of More’s story was a critique of anti-communist paranoia, but it remains a cautionary tale for conservatives today, those who would reject civil liberties in a play for short-term political advantage. For if conservatives “cut down” the rights once “planted thick … from coast to coast,” do they really think they “could stand upright in the winds that would blow” after they lose control of the government? In that case, perhaps even the dreaded “Demoncrats” should be given benefit of law.
Imagine a world in which corporate rights are a mere matter of convenience, when they ebb and flow as readily as the tide of government power. The inverse of that situation—when corporate power dictates government authority—is known as a “banana republic,” so named by the novelist O. Henry to describe the dominance of the United Fruit Company over several Latin American nations in the early 20th century. In honor of Florida’s starring role in the current drama and its history of fruit-flavored homophobia (i.e. Anita Bryant’s quixotic 1970s campaign), let us call its mirror opposite a “citrus republic.”
When corporate rights are reduced to mere transitory privileges granted to those in political favor, there are innumerable levers by which politicians can place pressure on unfriendly corporations in order to extract partisan advantage. Disney World must now go through the litigious and financial bother of reorganizing municipal services now that its special district has been repealed. But a company could also face targeted taxes, occupational licensing hassles for its employees, delays in road or bridge repair, pulled state contracts, raised utility or postal rates, and a host of other regulatory mechanisms, each of which has the potential benefit of being leveraged in an ostensibly neutral way (assuming more message discipline than has been shown by the DeSantis administration).
Lest that sound fantastical, consider the ways ticky-tacky regulations were used to punish another Fortune 500 corporation for its political speech, albeit on the opposite side of the culture war from Disney. Chick-fil-A’s financing of anti-LGBQT organizations fueled a decade of progressive backlash and consumer boycotts. And Democratic politicians were quick to leverage various discretionary powers to punish the chicken chain for its political speech, including the San Antonio City Council blocking Chick-fil-A from an airport concession, New York lawmakers trying to ban the restaurant from highway rest areas, and a Chicago plan to deny a new store an operating permit.
Conservatives worried about future banishment to the political wilderness may be tempted to play tit for tat, to give as good as they got or do one better so long as they hold political power. But that is a dangerous attitude to adopt. Even as a matter of pure pragmatism, playing beggar-thy-neighbor politics with corporate rights assumes that conservatism is fighting a vanguard rather than rearguard action. Given the ongoing, massive shift in American public opinion on gay marriage over the past 20 years, betting against rising popular support for transgender rights is a fool’s throw of the dice. Even the unprincipled conservative should think twice before undermining protections for corporate speech rights just as social conservatism slips into the cultural minority on issues of sexual equality.
At the moment, political success in intra-conservative politics depends on an utter unwillingness to admit defeat, no matter how severe the consequences for the movement or the nation. Little matters like principled consistency are for losers, and the devil take the hindmost. Thus Abbott can sign a law penalizing social media companies for exercising their First Amendment rights less than three years after signing a “Chick-fil-A law” protecting corporate free expression and do so without showing even the slightest chagrin over the inconsistency.
Conservatives like Abbot and DeSantis have adopted a war-time mentality. There is no principle so high that it cannot be violated for the sake of partisan gain and no right so inviolate that it cannot be abridged for temporary advantage. They are men for one season, those who have forgotten that conservatism was once as interested in building up institutions as it was with breaking them down. They pluck and do not plant, kill and do not heal, hate but do not love, and war without ever seeking peace.