Use Your Words (but not really): The Problem of Eggshell Conservatives and Disney

by Neil H. Buchanan 

In my most recent Dorf on Law column, "Law Schools Should Continue to Develop Critical Thinking Skills, Not Become Finishing Schools," I revisited what I (and many, many other people) view as the core purpose of law schools and higher education more generally: not memorizing codes, not becoming "practice ready," not "useful" majors or courses, and certainly not presuming that students do not know that the behavior that is expected in a court of law or in the workplace is not the same as on campus.  No, as the title of the piece makes clear, the core purpose is to teach students to think critically.

After I wrote that column, I suddenly thought to myself (using my mock-horror inner voice): Oh crap, I just used the word 'critical'!  In Florida!!  And I'm a public employee!!!  Oh, the horror.  What, oh what, shall I do?

Indeed, in addition to using the word "critical" in the title of that piece, I used it three times in the column itself -- positively each time.  Why might that be a problem?  Is it not obvious?  The movement against (a cartoonishly distorted version of) Critical Race Theory that first gained traction in the 2021 Virginia Gubernatorial election has gone national, with Florida's Republican governor and legislature embracing that issue as part of their anti-being-awake thing.  Indeed, the guy who dreamed up the idea of making CRT a bogeyman has been appointed by my governor to the board of a campus of the state university system, where they are running a beta test on how to turn the Sunshine State's university system into a lap dog of the far right.

But my purpose in this short column is not to go into detail about the future of education in Florida.  Instead, I want to observe that nothing less than "conservative political correctness" has taken hold in the Republican Party at all levels in this country.  The party that routinely derides liberals for claiming victim status and that calls left-leaning college students "snowflakes" is projecting bigly.

The Montana state legislature's Republicans voted this week to refuse to allow a trans person -- an elected representative -- into the chamber, only allowing her to vote remotely.  Their stated reason?  She offended them by saying that an anti-trans bill that they were ramming through for a vote would put "blood on their hands."  More famously, of course, the Republicans who dominate Tennessee's state House of Representatives kicked out two young Black members for joining in a protest against gun violence.

In tort law, there is the famous doctrine known as the "eggshell victim," which a Wikipedia entry describes this way: "the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them."  As one example, Person A might recklessly throw a baseball that hits Person B, who happens to have a medical condition that has weakened his skull, meaning that the injuries that B suffers from the tort are much worse than the injuries that one might expect if any other person had been similarly battered.  The law says that A has to pay for B's actual injuries, even though they are unusual.

As the Montana and Tennessee examples suggest, elected Republicans are now eggshell victims.  They cannot stand hearing certain words uttered, and they will react strongly -- indeed, they will radically overreact -- if someone says something that they do not want to hear.  Here in Florida, we honestly cannot be sure whether "critical" standing alone is too much for our overlords to bear, or if it is only horrific when followed by "race," or for that matter whether "race" alone is bad enough.  In any case, we are all supposed to be willing to cater to their hypersensitivity.

We do know that words alone are freaking them out.  Consider the current battle that the governor is waging against Disney, the state's largest employer.  In my writings, I have tried to emphasize a key point that is not being mentioned in most news coverage.  The governor's reaction is entirely to words.  Disney did not do anything other than issue a statement, and the words in that statement (which were too mild and came notably late, I would add) criticized the then-new "Don't Say Gay" bill.  (And in turn, using those words to describe that law also enrages the politicians who are running things here.)

That is it.  Disney spoke.  It criticized -- a different meaning of the word "critical," to be sure, but still leading to outraged reaction by the governor.  That reaction included actions, not just words.  What is amazing is that he and his spokespeople have never even tried to pretend that this is about anything other than punishing Disney for speech.  They basically are saying that Disney was getting a sweet deal from the state (which turns out not to be true, by the way), so the state can take that deal away from Disney when the company issues a press release containing displeasing words.

Disney has now sued, and the case has been assigned to a federal judge in the Northern District of Florida who has a strong track record of not tolerating the governor's abuses of power.  Because this is a very short column, I will not take the time here to go into further detail.  I will, however, plant the following seed for what will happen after Florida loses at the trial court level and appeals to a Republican-dominated Eleventh Circuit.

The U.S. Supreme Court (even before Coney Barrett replaced Ginsburg) said that Donald Trump's stated reasons for his "Muslim ban" did not matter.  With Florida's governor openly musing about punishing Disney by putting in tolls on the roads leading to Disney World (but no other theme parks) or even by building a prison next door (another moment in which conservatives' "think about the kids" mantra is exposed as a bad joke), will the appellate court say that none of that matters?  Is a use of government power in direct retaliation for Disney's use of words no big deal?  I know how I would bet on that question.