Disney vs. DeSantis Dismissed

Walt Disney World’s federal lawsuit against Governor Ron DeSantis, Secretary of Florida’s Department of Commerce, and all members of the Central Florida Tourism Oversight District (CFTOD) has been dismissed. This post covers the order granting the motion to dismiss, plus a brief bit of commentary.

For starters, it’s been a relatively quiet 6 months in the battle of Disney vs. DeSantis. Hopefully you’ve enjoyed it as much as I have. Aside from passing references to this litigation in What Bob Iger Needs to Fix at Walt Disney World & Beyond in 2024 (under “Quiet Controversy”), we haven’t discussed the standoff with the state much since last June. In part, that’s because the cases (plural, this is one of two) have offered only procedural updates for the most part. Not exactly exciting or sexy stuff that normal person planning a Disney trip wants to read about.

It’s also because (thankfully) Governor DeSantis and Bob Iger have mostly shut up about it. Now the latter can direct his efforts on fighting Elon Musk and Bob Chapek. Or maybe Iger will pick a new fight with, I dunno, Jared Leto. He’s got another couple years as CEO and, if you ask me, Leto totally deserves it. (Why does he keep showing up in movies I’d otherwise want to see?!)

If you’re simply looking for the short and sweet conclusion, it’s on page 3 of the Order: “Disney lacks standing to sue the Governor or the Secretary, and its claims against the CFTOD Defendants 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.'”

In plain English, the key part of this–the statue being facially constitutional–means that the free-speech argument fails because the law replacing RCID with CFTOD itself is valid. That means that even though DeSantis and co. were quite clear in their motivations for passing the law revoking Disney’s self-governing district–to retaliate against Disney for speaking out against pending legislation–it did not matter because the law itself was constitutional. Disney had no right to its own special district of indefinite duration, and Florida had the authority to revoke and replace it for no reason or any reason (even a bad one!).

At least according to the reasoning of this order, the motivations of elected leaders in promoting or passing said law were irrelevant. Judge Winsor found that only the end result is what mattered, and that was legally permissible. If you didn’t listen to the press conferences and the interviews and so forth–and just looked at the language of the law itself on its face–it would survive legal scrutiny. (And to be sure, one could envision politicians on the other side of the aisle passing a very similar law–they had questioned Disney’s control of the district for years, albeit never all that seriously.)

It would be like if I were governor and held a bunch of press conferences talking about how much I hate rodents. Then one day, a mouse criticized some laws I signed. So in response, I said all mice suck and I was going to punish them because how dare they speak out against me. I then made a law effectively restricting rodent access to trash cans and they sued, arguing that I retaliated as a direct result of them engaging in protected speech.

They’re right; I did. That may not be cool of me, but that’s more a distraction as a matter of law. The operative legal question is whether the law itself, in isolation, is fine. Am I able to restrict the rights of rats to trash? If so, the case is dismissed. And even if not, do rodents really have standing to sue me in the first place? After all, they’re rats.

Honestly, this hypothetical example is slightly more cumbersome than the actual facts of this case, which are practically written-up as if they’re a bar exam hypothetical–the kind you’d seldom encounter in the real world. Given that, I’ll pull some excerpts from the Order (you can read the full 17-page court document here) that hopefully provide a bit more clarity about this decision.

The court ruled that Disney has not shown standing to sue the Governor or the Secretary. To the extent that Governor contributed to Disney’s injury by appointing CFTOD board members, that action is in the past–there is no future injury from which injunctive relief can provide a remedy. Think of this as the Doctrine of What’s Done is Done.

From the Order: “The analysis could be different if the Governor had not yet made any appointments. But as things stand, if this court enjoined future appointments, Disney would face the same situation it faces now: it would be operating under the CFTOD board, over which it has no control. Stopping hypothetical future appointments would not redress any alleged imminent harm.”

Disney also contended it had standing because the Governor was exercising (ongoing) actual control over the CFTOD board. To that, the court said this: “Disney has not alleged any specific actions the new board took (or will take) because of the Governor’s alleged control. In fact, Disney has not alleged any specific injury from any board action. Its alleged injury, as discussed above, is its operating under a board it cannot control. That injury would exist whether or not the Governor controlled the board.”

More interesting, I think, is the free-speech challenge dismissal: “it is settled law that ‘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.’ And this settled law forecloses Disney’s claim.”

“The Legislature can determine the structure of Florida’s special improvement districts. Disney does not argue that the First Amendment (or anything else) would preclude the Legislature from enacting the challenged laws without a retaliatory motivation,” the court continues. Basically, since the law itself does not facially “impinge on any constitutional rights” a purportedly retaliatory motive does not matter.

“No one reading the text of the challenged laws would suppose them directed against Disney. The laws do not mention Disney…the secondary problem is that the laws’ effects are not limited to Disney. The laws are directed at a special development district in which Disney operates. But as Disney acknowledges, it is not the district’s only landowner, and other landowners within the district are affected by the same laws.”

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.” Because that is what Disney seeks, its claim fails as a matter of law.

Following the Order, Disney issued this statement: “This is an important case with serious implications for the rule of law, and it will not end here. 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.”

This statement is vague, probably purposeful. This could be construed to mean that Disney plans on appealing, which would go to the United States Court of Appeals for the Eleventh Circuit. The problem with that, though, is that a lot of the precedent in this order–in fact, the main decision cited–is from the 11th Circuit. So it’s hard to see that path working out for the company.

It’s also possible that they’re referring to the state case between CFTOD and Disney. It’s been a while since I dug into the specifics of that case, but if I recall correctly, it revolved around whether notice for the Development Agreements made between the company and former RCID was defective.

Turning to commentary, we have what’s seemingly an unpopular opinion. That it’s possible for Walt Disney World to be morally correct–that this sets a dangerous precedent that could have a chilling effect on speech. That it’s not difficult to envision a shoe is on the other foot scenario where a liberal governor punishes a conservative company–and think that would also be a bad thing that we shouldn’t want to see happen.

But, with that said, that it’s also possible for Walt Disney World to be wrong in continuing to pursue this–that this standoff with the state staying in the news is bad for business (see Disney’s Reputation Falls Further). That, at this point, they are not “winning over” new customers by continuing to engage in culture wars, and are instead reminding ones they’ve alienated of that. That a lot of Disney’s past success has come as a cultural unifier that has found a way to be trusted by and resonate with people of all persuasions and walks of life.

I know many of you disagree with this because you’ve said as much in the past. That’s fair enough. This is a big legal question with significant stakes and a lot of entrenched opinions about Florida and/or Disney overstepping. Personally, I think it’s possible to believe all of that and also that it benefits no one for the state and its biggest business to be engaged in a standoff, embroiled in controversy, and wasting millions of dollars on a legal fight. The only people winning in this matter are the lawyers and the rage farmers who traffic in divisiveness.

Ultimately, I look at Disney’s previous standoff with another state as illustrative for a good shoe on the other foot example. It’s easy to forget, but Bob Iger resigned from California Governor Gavin Newsom’s Economic Recovery Task Force back in October 2020 due to tensions between that state and Disneyland. That was a bitter battle at the time, and one that cost Disney dearly in not being able to reopen its Anaheim parks.

Since then, Iger has made inroads improving Disney’s relationship with California. As a result, Newsom has become an ally to Disney, making overtures to get the company to increase its presence in the state. The next step out west is getting DisneylandForward approved, which should happen this year. Disney has done a great job of community outreach in both the City of Anaheim and the state.

Regardless of how you assign blame in that battle, the end result was decidedly “not good” for Disney and it definitely “is good” that Disney has done the hard work of repairing the relationship, irrespective of whether the company was right or wrong in the first place. Yet another example of the Doctrine of What’s Done is Done. 

That is precisely what I want to see happen in Florida. It doesn’t matter what opinions you hold of Bob Iger or Ron DeSantis. That doesn’t change the fact that Walt Disney World is absolutely huge for Florida’s economic engine. It is mutually advantageous for the company and the state to repair their relationship.

Disney wants to invest billions of dollars into Florida and, presumably, the state wants that, too. So even as the state case and a potential appeal here go on, I truly hope that Iger and DeSantis, or at least representatives from Florida and Disney, are working behind closed doors to fix things and move forward. Everyone loses and no one wins when these states and one of their largest businesses are at odds.

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YOUR THOUGHTS

If you’ve read all or part of the Order Granting Motions to Dismiss in favor of Florida Governor Ron DeSantis & Friends, what’s your take as a matter of law? Any reaction to the latest season of the Reedy Creek Improvement District drama? Hope this escalating battle starts to de-escalate soon so we can focus again on the fun of the parks? Keep the comments civil, and avoid personal attacks or perpetuating pointless culture wars. Respectfully debating the change is totally fine, but don’t attack others or troll for controversy. That’s why Facebook was invented.