from the the-mouse-is-mad dept
Almost exactly a year ago, we pointed out that Ron DeSantis deliberately trying to punish Disney for making some mild criticism of an (obviously unconstitutional) bill that he was endorsing was, itself, a 1st Amendment problem. And that was true even if the underlying idea to get rid of Disney’s control over the land in Orlando where Disney World existed might make some sense. The fact that it was done in retaliation for speech was a problem.
I actually wondered if Disney would sue earlier, but it waited until after the “switch over” to the new DeSantis-friendly board had occurred (and after Disney’s lawyers completely out-maneuvered him in public by having the old board transfer over most of its power to Disney before the new board was seated).
But, now that that’s happened, Disney’s lawyers have pounced and have sued DeSantis over the whole scheme. I am no fan of Disney lawyers, and can’t recall ever having sided with them on anything, but here, they’re right.
I won’t get into the contracts clause, takings clause, or due process clause claims in the lawsuit, but do want to talk about the 1st Amendment ones, because that’s what was most interesting to me and what we had called out earlier. Disney’s lawyers are pretty clear on how this played out:
There is no room for disagreement about what happened here: Disney expressed its opinion on state legislation and was then punished by the State for doing so.
Governor DeSantis announced that Disney’s statement had “crossed the line”—a line evidently separating permissible speech from intolerable speech—and launched a barrage of threats against the Company in immediate response. Since then, the Governor, the State Legislature, and the Governor’s handpicked local government regulators have moved beyond threats to official action, employing the machinery of the State in a coordinated campaign to damage Disney’s ability to do business in Florida. State leaders have not been subtle about their reasons for government intervention. They have proudly declared that Disney deserves this fate because of what Disney said. This is as clear a case of retaliation as this Court is ever likely to see.
At the Governor’s behest, the State Legislature first voted to dissolve the long-standing RCID, then ultimately voted to give near-complete control of RCID to the Governor himself. As the Florida representative who introduced the Reedy Creek dissolution bill declared to the Florida House State Affairs Committee: “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”
There are two specific claims regarding how Florida’s actions violated the 1st Amendment. There’s one for the laws the legislature passed, and DeSantis signed, to set up a board of DeSantis’ political friends to control what had been the “Reedy Creek Investment District” (RCID), replacing it with the brand new “Central FLorida Tourism Oversight District (CFTOD).
As discussed, Disney’s public statements on HB 1557 are fully protected by the First Amendment, which applies with particular force to political speech. See McIntyre, 514 U.S. at 346.[….]
Senate Bill 4C and House Bill 9B were motivated by retaliatory intent. Governor DeSantis would not have promoted or signed, and the Legislature would not have enacted either bill, but for their desire to punish Disney for its speech on an important public issue. See Warren, 2022 WL 6250952, at *2 (crediting “sources of information about the Governor’s motivation” for suspending a prosecutor, including a tweet from the Governor’s press secretary and comments during the Governor’s announcement of the suspension).
Governor DeSantis called on the Legislature to extend its special session for the express purpose of enacting Senate Bill 4C the very day after Disney made a statement about House Bill 1557. He repeatedly and publicly stated that he was “fight[ing] back” for Disney’s criticism of House Bill 1557, including at the bill-signing ceremony. Key legislators publicly acknowledged that Senate Bill 4C targeted Disney.
To me, this is a pretty strong argument. DeSantis and many legislators were pretty open about why they were doing this and that it was retaliation for Disney’s speech. It’s hard to see how that’s not an attack on free expression.
I mean, just months earlier, DeSantis’ office was literally working with Disney’s lawyers to insert a “theme park exemption” from his social media moderation bill (which has been declared by both a district court and the 11th Circuit appeals court to be an unconstitutional 1st Amendment violation). It’s kinda frustrating that Disney focused on working with the Governor to get their own exemption rather than fighting such an incursion against free speech at the time, but at the very least it shows that DeSantis and Disney were close… right up until they issued some minor criticism of another unconstitutional bill (he does a ton of unconstitutional 1st Amendment-violating nonsense, doesn’t he? Especially for a guy who claims to be about protecting the 1st Amendment.)
The other 1st Amendment claim is regarding the new CFTOD’s interference with Disney’s contracts in trying to punish the company.
CFTOD’s retaliatory interference with the Contracts, via the Legislative Declaration and its predicates, has chilled and continues to chill Disney’s protected speech. Bennett v. Hendrix, 423 F.3d 1247, 1254 (11th Cir. 2005) (discussing action that “would likely deter a person of ordinary firmness from the exercise of First Amendment rights.”). This unconstitutional chilling effect is particularly offensive here due to the clear retaliatory and punitive intent that has motivated CFTOD’s actions, at the Governor’s directive. See Bailey v. Wheeler, 843 F.3d 473, 486 (11th Cir. 2016) (“Our First Amendment demands that a law-enforcement officer may not use his powerful post to chill or punish speech he does not like.”).
CFTOD’s actions were motivated by retaliatory intent. On April 17, Governor DeSantis warned that the CFTOD board would be meeting a few days later to “make sure Disney is held accountable.” Later that day, Governor DeSantis announced, “I look forward to the additional actions that the state control board will implement in the upcoming days.” Governor DeSantis has let no doubt be harbored as to the impetus for his punishment. He wrote in an article to promote his book, “When corporations try to use their economic power to advance a woke agenda, they become political, and not merely economic, actors. … Leaders must stand up and fight back when big corporations make the mistake, as Disney did, of using their economic might to advance apolitical agenda.”
There is no rational basis to invalidate the Contracts, and the purported justifications for doing so are pretextual.
I’m not as sure if that claim is as strong as the other one, but it’s something worth watching all the same. I imagine this case is going to take quite a while to resolve itself with whatever appeals happen no matter who wins.
But, still, this is yet more Florida taxpayer money that DeSantis is throwing away in yet another of his unconstitutional efforts to suppress speech while pretending to be champion of speech and fiscal responsibility.