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DeSantis prevails over Disney in lawsuit; company says ‘it will not end here’ [1]

['Michael Moline', 'More From Author', '- January']

Date: 2024-01-31  

The Walt Disney Co. has lost its free-speech lawsuit against Gov. Ron DeSantis for stripping the company of quasi-governing control over its Central Florida properties in part because Disney criticized legislation restricting discussion of sexual orientation and gender identity in public school classrooms.

Disney suggested it plans to continue its court battle against DeSantis, without specifying any legal strategy.

“This is an important case with serious implications for the rule of law, and it will not end here,” the company said in a written statement, as reported by the Orlando Sentinel. “If left unchallenged, this would set a dangerous precedent and give license to states to weaponize their official powers to punish the expression of political viewpoints they disagree with. We are determined to press forward with our case.”

The case arose from DeSantis’ 2022 Parental Rights law, also known as “Don’t Say Gay” because it restricted discussion of sexual preference and gender identity in public schools and required school personnel to keep parents abreast of children’s “mental, emotional, or physical health or well-being.”

In an opinion handed down Wednesday, U.S. District Judge Allen Winsor in Tallahassee ruled that even if DeSantis intended to retaliate against the company for exercising its free-speech rights when criticizing his Parental Rights law, it remained within the state’s authority to eliminate Disney’s control over the old Reedy Creek Improvement District, created in 1967 to facilitate construction of Walt Disney World.

That means the company lacked standing to sue the governor and Florida’s secretary of state, Winsor said — meaning Disney hasn’t alleged harm that the courts are able to redress. The judge also rejected the company’s claim against the board that replaced Reedy Creek, the Central Florida Tourism Oversight District, where DeSantis installed a board of his political supporters to act as a governing body for the area.

“In short, Disney lacks standing to sue the governor or the secretary, and its claims against the CFTOD defendants fail on the merits because when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose,” Winsor wrote.

“To the extent the governor contributed to Disney’s injury by appointing CFTOD board members, that action is in the past,” the judge said.

“The analysis could be different if the governor had not yet made any appointments. But as things stand, if this court enjoined future appointments, Disney would face the same situation it faces now: It would be operating under the CFTOD board, over which it has no control. Stopping hypothetical future appointments would not redress any alleged imminent harm.”

Open hostility

DeSantis press secretary Jeremy Redfern issued a written statement welcoming the ruling.

“As stated by Gov. DeSantis when he signed HB 9-B [the law sunsetting Reedy Creek], the Corporate Kingdom is over. The days of Disney controlling its own government and being placed above the law are long gone. The federal court’s decision made it clear that Gov. DeSantis was correct: Disney is still just one of many corporations in the state, and they do not have a right to their own special government. In short — as long predicted, case dismissed.”

DeSantis openly acknowledged targeting Disney for retribution after the company offered criticism of his law, which originally restricted the targeted topics in lower public-school grades and subsequently was extended by the Florida Department of Education through high school.

“Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards,” the original bill says in part.

Disney’s statement, issued on March 28, 2022, reads:

“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. 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 LGBTQ+ community in Florida and across the country.”

Last May, while campaigning for president in Iowa, DeSantis bragged: “People told me … If Disney weighs in, they’re the 800-pound gorilla, you better watch out, they’re going to steamroll you. Well, here I stand.”

And DeSantis has accused the company of throwing its economic weight around in defiance of “the people’s will” to prevent “indoctrination” of children — his interpretation of discussing LGBTQ people.

“Do what you believe in, but understand, if you are out protesting this bill, you are by definition putting yourself in favor of injecting sexual instruction to five-, six- and seven-year-old kids. I think most people think that’s wrong. I think parents especially think that’s wrong,” DeSantis said on March 22.

‘Targeted campaign’

In its lawsuit, filed last April, Disney cited “a targeted campaign of government retaliation — orchestrated at every step by DeSantis as punishment for Disney’s protected speech.” The company sued through its Walt Disney Parks and Resorts U.S. subsidiary.

The Legislature was within its authority to create a new governing board that Disney wouldn’t control, and any harm the company suffers as a result “would exist whether or not the governor controlled the board, meaning an injunction precluding the governor from influencing the board would not redress Disney’s asserted injury,” Windsor wrote.

“As Disney appropriately acknowledges, the Legislature can determine the structure of Florida’s special improvement districts. Disney does not argue that the First Amendment (or anything else) would preclude the Legislature from enacting the challenged laws without a retaliatory motivation,” he continued.

“But the secondary problem is that the laws’ effects are not limited to Disney. The laws are directed at a special development district in which Disney operates. But as Disney acknowledges, it is not the district’s only landowner, and other landowners within the district are affected by the same laws.”

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