Disney-Desantis row: Company appeals dismissal of its free speech lawsuit

Disney on Thursday appealed a judge's dismissal of its free speech lawsuit over what it described as Governor Ron DeSantis' retaliatory takeover of Walt Disney World's governing district, as the Florida governor separately called any appeal "a mistake."

"They were wrong and we were right," DeSantis said at a news conference in Jacksonville a day after the ruling. "They should move on."

Disney filed a notice of appeal over Wednesday's ruling by a federal judge in Tallahassee, saying that it would set a dangerous precedent if left unchallenged by giving states the green light to weaponize their powers to punish opposing viewpoints. A separate lawsuit over who controls the district also is still pending in state court in Orlando.

Disney had argued that legislation signed by DeSantis and passed by the Republican-controlled Legislature transferring control of the Disney World governing district from Disney supporters to DeSantis appointees was in retaliation for the company publicly opposing the state's "Don't Say Gay" law.

The 2022 law banned classroom lessons on sexual orientation and gender identity in early grades and was championed by DeSantis, who had used Disney as a punching bag in speeches on the campaign trail until he recently suspended his campaign for the 2024 GOP presidential nomination.

Disney supporters had run the district, which provides municipal services such as firefighting, planning and mosquito control, for more than five decades after the Legislature created it in 1967.

In dismissing the free speech case, U. District Judge Allen Winsor said that Disney lacked standing with its claims against DeSantis and the secretary of a Florida state agency, and that the company's claim lacked merit against DeSantis' appointees to the Disney World governing district's board.

Winsor wrote that when a law on its face is constitutional, plaintiffs can't make free speech claims challenging it because they believe lawmakers acted with unconstitutional motives. The law that revamped Disney World's district didn't single out Disney by name but rather special districts created before the ratification of the Florida Constitution, a group that included the Disney district and a handful of other districts, he said.

Experts diverged on how successful an appeal by Disney will be, with some saying an important question raised by the decision will have to be addressed at the appellate court and others believing the dispute should have been resolved politically instead of litigated.

Maybe Disney should go back to lobbying and writing checks," said Richard Foglesong, a Rollins College professor emeritus who wrote a definitive account of Disney World's governance in his book, "Married to the Mouse: Walt Disney World and Orlando."

"As the judge's ruling shows, they erred in using the courts to resolve a political question," Foglesong said Thursday. "Everyone knows the Legislature's act was retaliatory toward Disney. It just wasn't provable by legal standards."

Asked in an email to comment on the judge's decision, Orlando attorney Jacob Schumer, who has followed the case, pointed to a social media post he made Wednesday after the decision. The appellate court will have to address whether a law is singling out an entity even if it isn't directly named but fits the criteria for what is being targeted, he said in the post.

I still think that they'll be uncomfortable leaving in a loophole that basically says you can freely retaliate for speech through specifying a party via objective criteria rather than by name, Schumer said of the appellate court.

Disney's attorneys may take heart in a recent decision by the 11th U.S. Circuit Court of Appeals to vacate a lower court decision over a case that DeSantis' critics viewed as another example of the governor's overreach. The appellate court sent ex-prosecutor Andrew Warren's case back to a trial judge to determine if his suspension by the governor was improperly focused on statements Warren signed along with other prosecutors opposing certain legislation to criminalize abortion and gender care.

Before control of the district changed hands from Disney allies to DeSantis appointees early last year, the Disney supporters on its board signed agreements with Disney shifting control over design and construction at Disney World to the company. The new DeSantis appointees claimed the "eleventh-hour deals" neutered their powers, and the district sued the company in state court in Orlando to have the contracts voided.

Disney has filed counterclaims that include asking the state court to declare the agreements valid and enforceable.

Disney renewed its request for a six-month pause in the state court lawsuit Wednesday, saying in a court filing that it had been unable to conduct a deposition of the new DeSantis-allied district administrator and get documents from the DeSantis-controlled district.