Judge dismisses Disney's First Amendment federal lawsuit against DeSantis

A judge has dismissed Disney's First Amendment federal lawsuit against Gov. Ron DeSantis and others, a decision that could have big implications on corporate speech, especially when it's directed at governments who can punish it.

DeSantis, with the help of GOP lawmakers, stripped Disney's control of Reedy Creek Improvement District, its special taxing authority, and gave it to himself. He also renamed it to the Central Florida Tourism Oversight District.

The company eventually sued him and that district's new leadership in federal court, saying it was retribution for its public opposition to a state parental rights law, called "Don't Say Gay" by critics, which restricts classroom instruction on gender identity and sexual orientation. That punishment of its speech violates the First Amendment, Disney said.

But U.S. District Judge Allen Winsor threw out the lawsuit on Wednesday, a move Disney is likely to appeal.

“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 company said in a statement provided to POLITICO.

Winsor, appointed by former President Donald Trump, cited a lack of standing in dismissing the claims against DeSantis and Alex Kelly, the Florida Department of Commerce secretary. Standing refers to whether someone has the right to sue another.

"To the extent the Governor contributed to Disney’s injury by appointing (new district board members), that action is in the past," Winsor wrote. "Because Disney seeks injunctive relief, it must allege an imminent future injury."

He said the claims against district leadership "are dismissed on the merits for failure to state a claim."

"Its claims ... 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, citing a 2015 appellate decision.

The state had argued in court and legal filings that it didn't matter if the action was retaliatory, citing the same decision. That had stemmed from a lawsuit filed by the Alabama Education Association, alleging that lawmakers had retaliated against it by passing a law that banned payroll deductions for membership dues in organizations that used "any portion of those contributions for political activity."

Their argument, which Winsor agreed with, is that if a law is constitutional on its face, it doesn’t matter if it was created for retaliatory reasons.

"No one reading the text of the challenged laws would suppose them directed against Disney," Winsor wrote. "At the end of the day, under the law of this Circuit, 'courts shouldn’t look to a law’s legislative history to find an illegitimate motivation for an otherwise constitutional statute.' "

Winsor wrote that it was true that Disney "faces the brunt of the harm" from the law.

"But Disney offers no support for its argument that the court is to undertake line drawing to determine just how many others a law must cover to avoid 'singling out' those they affect most," he said.

New board members abolished DEI programs, among other things

The district leadership sued were board members of the Central Florida Tourism Oversight District, as well as District Administrator Glen Gilzean Jr.

They've already made a lot of changes, some of them controversial, like abolishing the district's diversity, equity and inclusion programs.

Disney and the new leadership are still fighting it out in state court over contractual and public records disputes.

Jeremy Redfern, press secretary for DeSantis, applauded the decision.

"The days of Disney controlling its own government and being placed above the law are long gone," he said in a statement. "The federal court's decision made it clear that Governor 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."

District Chairman Martin Garcia called the lawsuit a "distraction" and said he was "delighted that ... (it's) now behind us."

"Our board and the district will now continue to make the appropriate changes to operate and function as an independent government agency to promote transparency and accountability while bringing more prosperity to more people in Florida," he said in a statement.

But Disney has warned in legal filings that a courtroom win for DeSantis would open up the floodgates for speech suppression. "If the State’s strategy succeeds, Disney will assuredly not be the last entity punished for espousing disfavored viewpoints," the company wrote.

Rebecca Tushnet, a First Amendment professor at Harvard Law School, had similar concerns.

"(The judge) just said there was nothing a court could do about it," Tushnet said. "That's information Disney and everybody else will have to take into account moving forward in terms of what they're willing to say."

Gary Edinger, a Gainesville-based First Amendment attorney, said Winsor had taken a "very, very narrow view of the law."

If the decision stands, he warned that "the First Amendment will be significantly diminished. ... Emboldened governors across the United States will have a road map to punish their political adversaries."

He added, "... All a governor needs to violate a citizen's First Amendment rights and crush free speech is a compliant legislature."

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. On X: @DouglasSoule.