Last week, the Walt Disney Company filed a lawsuit in federal court accusing Florida Governor Ron DeSantis ’05 of orchestrating “a targeted campaign of government retaliation” against the entertainment giant after it decried the state’s Parental Rights in Education bill, which detractors deride as “Don’t Say Gay.”

In the wake of the company’s March 2022 criticism, DeSantis and Florida’s legislature replaced the half-century old, Disney-controlled Reedy Creek Improvement District, the government entity established in 1967 to oversee the land where Walt Disney World is located, with a new body appointed by the governor, now called the Central Florida Tourism Oversight District.

The lawsuit, filed on April 26, 2023, came shortly after the new board voted to cancel agreements that the original board had, just prior to its dissolution, made with Disney. The lawsuit alleges five violations of Disney’s rights under the U.S. Constitution: one each under the Contracts Clause, Takings Clause, and Due Process Clause, and two under the First Amendment. The governor’s spokesperson told several media outlets that Disney’s complaint was “yet another unfortunate example of their hope to undermine the will of the Florida voters and operate outside the bounds of the law,” and that “[w]e 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.”

To understand more about the legal arguments in the case, Harvard Law Today reached out via email to Rebecca Tushnet, the Frank Stanton Professor of the First Amendment. Tushnet says that Disney’s claims of retaliation are strong and that, if the company prevails in the lower courts, the U.S. Supreme Court might choose to have the final word.

Harvard Law Today: What is your overall impression of the complaint that Disney filed against Governor DeSantis?

Rebecca Tushnet: The complaint recognizes what anyone can see: Disney got special treatment as a major employer and donor, then Florida began an extensive retaliatory campaign against Disney because of anodyne statements against ‘Don’t Say Gay.’

HLT: What about Disney’s argument that Florida’s actions constitute a taking under the U.S. Constitution? Does this type of contract constitute property that might qualify for a remedy under that provision?

Tushnet: The contracts/covenants at issue are definitely property rights and under ordinary takings law they certainly qualify for takings analysis, though that doesn’t mean that Disney has to prevail.

HLT: The complaint also alleges that Florida violated Disney’s due process rights by adopting “arbitrary and irrational” legislation undermining its property rights. What due process rights do corporations have? Are they the same as people?

Tushnet: Corporations are people, the Supreme Court has told us, for constitutional purposes like this.

HLT: At the heart of Disney’s complaint are two First Amendment claims based on an underlying allegation that Florida retaliated against the company for constitutionally protected statements it made about the state’s bill. How strong are Disney’s claims here?

Tushnet: Disney’s claims of retaliation are strong; the question is whether what the state purports to take away is enough punishment to deter a person of reasonable firmness from speaking further, and to the extent that the state has jeopardized billions of investment, that would seem to meet the standard.

HLT: And whatever their free speech rights, does that prevent a state from retaliating?

Tushnet: Yes. Even when government acts are otherwise legal, they can’t be taken if they are in retaliation for protected speech and would deter a person of ordinary firmness from engaging in speech.

HLT: What do you think Florida’s strongest legal arguments will be?

Tushnet: Florida’s response seems to be that, because Disney got uniquely favorable treatment 50 years ago, it’s not a cognizable “injury” to take that unique treatment away. Given the magnitude of Disney’s investment, this response might not be persuasive, and Disney also argues that, in fact, there are other special districts, so Disney was just one beneficiary of a more general policy of creating special districts where there are special development needs. If that’s the case, then Florida’s response is even less persuasive.

HLT: Assuming this lawsuit goes to trial, is this the kind of case that might make its way to the Supreme Court? And if so, how have the current members of the Court thought about these issues in the recent past?

Tushnet: It certainly raises culture war issues and would involve the constitutionality of a state’s action, so if Disney prevails in the lower courts, the Supreme Court would likely be interested. I don’t make any predictions because the Court’s views of the exercise of government power have varied so much over the past few years, though often in tune with the partisan status of the relevant government actor.

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