Disney uses Ron DeSantis’s own words against him in free speech lawsuit

The first stop for Walt Disney’s sweeping lawsuit against Ron DeSantis is a court led by a judge who called elements of the Florida governor’s “Stop Woke” act “positively dystopian” in a ruling last year.

In this case, Judge Mark Walker will be asked to decide on whether DeSantis’s year-long battle with “woke Disney” violated the entertainment group’s constitutional rights. In a 77-page complaint filed last week, Disney accused DeSantis and members of his administration of orchestrating a “targeted campaign of government retaliation” that threatens the future of its business in Florida and violates its constitutional right to free speech.

“It may be that Disney will do well before the judge” given his willingness to rule against DeSantis in other cases, said Carl Tobias, a law professor at the University of Richmond in Virginia. “But I think he will be open-minded and fair.”

The unusual case pits Disney and its chief executive, Bob Iger, against DeSantis, a potential candidate for the 2024 Republican presidential nomination. It marks an extraordinary falling out between Florida’s largest private employer and its governor, whose party has long enjoyed a reputation as an unquestioning ally of business in the state.

The confrontation began last year when Disney’s then-chief executive, Bob Chapek, opposed Florida’s Parental Rights in Education law, a controversial measure that was known as the “Don’t Say Gay” bill by its opponents. The law restricts what teachers can say about LGBT+ issues in schools and was opposed by Disney employees in Orlando and elsewhere.

After Disney spoke out against the law, DeSantis said the company had “crossed the line” and pledged to “fight back” — comments cited by Disney in its lawsuit to back up its argument that the governor and his allies were seeking to retaliate against the company for exercising its constitutionally protected speech.

In a recent press conference, DeSantis mused about potential penalties for Disney, including adding toll roads around its theme parks, new taxes on its hotels and even building a prison nearby. Legal experts say such open confrontation by DeSantis may make for good politics but could complicate his defence against Disney’s argument that the governor has sought to retaliate against the company for its position on the LGBT+ issue.

“That’s going to be DeSantis’s biggest problem when he goes to court,” said Adam Winkler, a UCLA law school professor and a specialist in American constitutional law. “It’s going to be harder for them because they made it very specifically about punishing Disney for stating its views.”

Disney’s suit quotes Randy Fine, a Florida congressman who sponsored a bill last year to dissolve the special tax district that Disney had operated around its theme parks for decades, as evidence that DeSantis and his allies were retaliating against it.

“You kick the hornet’s nest, things come up,” Fine said at the time. “You got me on one thing, this bill does target one company — it targets The Walt Disney Company.”

Catherine Ross, a professor at George Washington University Law School, said such explicit public statements make the case highly unusual.

“You don’t often have such inadvisable public statements in a retaliation case,” she said. “Most of the time, if you’re going to retaliate, you pretend that’s not what you’re doing and make up reasons to justify what you’re doing. But they aren’t giving any reasons, except ‘we’re really angry at Disney’.”

Disney is asking the federal court to void DeSantis’s actions to take control of the board that oversees the theme park district. In a press conference following the suit, DeSantis said Disney was “upset because they’re having to live by the same rules as everybody else. They don’t want to pay the same taxes as everybody else and they want to be able to control things without proper oversight.”

On Monday, the board appointed by DeSantis to oversee the area around Disney’s theme parks pledged to countersue the company.

In the event of an appeal, the case would move to the US Court of Appeals for the Eleventh Circuit, a conservative court representing parts of Florida, Georgia and Alabama. Legal experts note that many of the arguments Disney is making have been championed by pro-business Republicans — particularly the free speech rights of corporations — so it is especially difficult to gauge how the case would play in the appeals court or the Supreme Court, should it ever reach that far.

“We think classically that conservatives would favour corporate entities,” said University of Richmond’s Tobias. “I don’t know how that cuts in this particular case though. It shouldn’t necessarily be political but you can’t unravel politics from this particular dispute.”

In addition to Disney’s claims that DeSantis violated the company’s free speech rights, the suit also asserts that his administration has violated constitutional rights to due process, protections for contracts and compensation for private property.

“I think that their First Amendment [free speech] claim is very strong,” said UCLA’s Winkler. “The other constitutional claims are a little weaker.”

Tobias said he did not expect the case to be taken up by Walker’s court for at least four months. This means the case may well unfold amid a primary battle that includes DeSantis and former president Donald Trump, who has attacked the governor’s handling of the Disney dispute. Legal experts say it is almost inevitable that these outside political and cultural battles will have an effect on the legal case.

The case could be “complicated by the fact that DeSantis is running for president”, said GW’s Ross.

“It may depend on whether the governor thinks it’s in his interest to get this off the front pages and resolve it [by settling the case] or if he wants to be the guy who is attacking ‘woke’ Disney and California values,” she said. “My guess is he wants this on the front pages. Unless the case settles it’s going to be going on in political primetime.”