Bad legal journalism

I (and most lawyers) regularly complain about how badly the media covers courts and law. I am particularly attuned to sloppy and inaccurate use of procedural terms (e.g., "enjoining a law"). I hope for better from a publication such as Bloomberg, which is dedicated to talking about law. No such luck, as shown in a story about efforts of Gov. DeSantis and his legislative lackeys to punish Disney's objections to "Don' Say Gay" by repealing its exclusion from the state's social-media law. The story begins "Florida’s governor may be able to impose swift retribution against Walt Disney Co. for publicly disagreeing with the state’s “don’t say gay” education law."

First, the author seems quite blase about the governor of a state seeking retribution against someone who disagrees with state policy and about legislators agreeing that "the governor’s anger was well placed, and we’re happy to take it up." So new legislation targets an entity when that entity takes a political position that angers the governor and legislators back the governor. The reporter describes it as "retribution," yet treats that as an ordinary thing that happens (and, implicitly, should happen) when members of the public disagree with government officials. As opposed to one of the core things the First Amendment is designed to prohibit.

Second, she misconstrues the likely First Amendment validity of the social-media law. She writes as if the Disney exclusion was key to district court's reasoning in declaring the law invalid, quoting another Republican calling this a "good bill" because it treats all providers evenly. She also calls reversal of the district court "a real possibility" simply because it is on review to the 11th Circuit. But the Disney exception was not central or even necessary to the district court's analysis, functioning more as an absurd cherry on the constitutionally invalid sundae of this law. The court found the law compels speech under Tornillo, making it invalid no matter how even-handed--government can neither compel some people nor all people to speak or to carry the speech of others. And the court identified three reasons the law is "as content-based as it gets" before mentioning Disney. DeSantis, et al live in a fantasy world if they believe expanding the scope of the law eases its constitutional problems, yet the reporter echoes their points as if they are legally plausible. There also is no way the 11th Circuit, as conservative as it may be, reverses on this; these laws are not valid without overruling multiple areas of precedent.

I wish writers and editors did better than this; I would expect it from those at a publication that specializes in law.