The Walt Disney Company filed suit on Wednesday in federal court against Republican Florida Gov. Ron DeSantis.
The suit comes almost exactly a year after DeSantis first lashed out at the entertainment giant for pausing political donations and criticizing the governor’s since-enacted controversial bill — dubbed “Don’t Say Gay” by opponents — that bans teaching sexual orientation or gender identity to certain students. Disney claims that DeSantis weaponized Florida’s government by revoking its long-held special tax status immediately after it came out against the governor’s policy.
“Maybe he’s for free speech as long as it’s speech he likes.”
Though First Amendment retaliation suits are notoriously difficult to prove in court, lawyers said that Disney may have an unusually strong case.
“I find it hard to see how you can argue that you’re for free speech when you punish a corporation for their political views or you’re banning books,” said Catherine Cameron, a professor who teaches media law at Stetson University College of Law in Florida. “Maybe he’s for free speech as long as it’s speech he likes.”
The case — and the wider flap over Disney’s stance on the “Don’t Say Gay” law — makes for a reversal of roles in a raging national debate about the First Amendment and government overreach in suppressing free speech. Following a raft of reporting, far-right Republicans have made the “weaponization” of government against speech a central political talking point in their culture war.
In January, for instance, congressional Republicans amplified rhetoric about government suppression of speech by launching the Select Subcommittee on the Weaponization of the Federal Government. Now, one of the country’s top Republican officials and a potential contender in the 2024 presidential election is being accused of reacting to constitutionally protected speech with retaliation.
Jim Lussier, an attorney based in Orlando, said, “DeSantis is consciously ignoring the U.S. Supreme Court’s position, at Florida taxpayer expense.”
Taryn Fenske, DeSantis’s communications director, objected to the suit. “We are unaware of any legal right that a company has to operate its own government or maintain special privileges not held by other businesses in the state,” Fenske said in a statement. “This lawsuit is yet another unfortunate example of their hope to undermine the will of the Florida voters and operate outside the bounds of the law.”
While corporations are not entitled to benefits or privileges, the retaliation claim hinges on whether the benefits were revoked because of First Amendment-protected speech. “If he’s gone after them for a political viewpoint, that is certainly not what free speech advocates would advocate for,” Cameron said. “That’s sort of the textbook definition of government censorship.”
Though retaliation cases can be hard to win, DeSantis and others have made clear public statements about the motivation and timing behind the decision to revoke the company’s special tax status, said Tom Julin, a First Amendment lawyer based in Miami.
“The governor has been quite explicit in making it clear that he is retaliating against Disney based upon its speech,” he said. “When you look at the chronological timeline of when this action was first contemplated by the governor, by the legislature, and by the governing body, it’s pretty clear — some would say crystal clear — that the action was not simply in reaction to a concern that Disney had been given too much control, but was a direct response to Disney’s criticism of the government.”
What’s more, Julin said, the judge assigned to the case, Mark Walker, has previously gone after DeSantis’s suppression of First Amendment law, so Disney has a good chance of getting a favorable result.
“The First Amendment doesn’t only apply to individuals or politicians,” said Bobby Block, executive director of the Florida First Amendment Foundation. “Corporations also have a right to freely express themselves on matters of public policy and politics without fear of reprisal from the government. On the face of it, the Disney case looks very compelling. But we will have to see what the courts decide.”
DeSantis and his legal team would have to provide a compelling interest for why the state would want to suppress Disney’s right to free speech, said Cameron, the law professor. A compelling interest in the eyes of the court would include significant issues of health, safety, or issues of national security.
“If somehow the court was willing to buy that DeSantis and the Florida administration had a compelling interest to punish Disney in effect for their viewpoint, that would really change the law,” she said. “I don’t really know what the compelling interest would be. I guess we’ll have to see what argues.”
“It’s a risky move because the government can always retaliate further if the lawsuit is not successful, or even if it is successful,” Julin said. “Someone like Governor DeSantis is likely going to be offended that a lawsuit was filed.”