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By Giulia Carbonaro
Senior Reporter
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Disney has a "strong case" against Florida Governor Ron DeSantis, First Amendment experts told Newsweek, as it alleges that the Republican politician has improperly retaliated against the entertainment giant because of its opposition to the controversial "Don't Say Gay" bill.
Earlier this week, Disney filed a federal lawsuit against DeSantis and other Florida officials after a board appointed by the Republican governor nullified two crucial agreements that gave the company significant control over the expansion of its world-famous resort in the state. On Wednesday, Florida Republican senators doubled down in their action against Disney, voting in favor of a new bill—SB 1604—which would nullify further development agreement between the entertainment company and the Sunshine State.
Disney, which has now been in a year-long battle with DeSantis over the anti-gay law championed by the Florida governor and passed in 2022, said its stance has made it a target of retaliation.
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"Disney regrets that it has come to this," the corporation's lawsuit reads, arguing that DeSantis and other Florida officials broke the First Amendment by retaliating against Disney for speaking up in opposition to the "Don't Say Gay" bill. "In America, the government cannot punish you for speaking your mind."
DeSantis fired back at Disney, saying it did not want to "pay the same taxes as everybody else." His communications director, Taryn Fenske, issued a statement following Disney's lawsuit, saying: "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. 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."
But First Amendment experts told Newsweek that, unlike what DeSantis might say, Disney's claim is "strong" and the company's case is likely to stand up in court.
"I think Disney's lawsuit is a strong one which is quite properly rooted in the First Amendment," Floyd Abrams, First Amendment expert and senior counsel in Cahill Gordon & Reindel LLP's litigation practice group, told Newsweek.
"Legislative or gubernatorial sanctions on a private party because of its public positions is highly likely to be held to infringe on well-established and deeply rooted First Amendment principles."
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Renowned First Amendment litigator Theodore J. Boutrous Jr., a partner in the Los Angeles and Washington, D.C. offices of Gibson, Dunn & Crutcher, agrees.
"This is a powerful complaint from Disney and its First Amendment arguments are extremely strong," he said. "Governor DeSantis has admitted—indeed bragged about—retaliating against Disney to punish it for its speech on an issue of public concern and importance. That is a classic First Amendment violation."
Rebecca Tushnet, Frank Stanton Professor of First Amendment Law at Harvard Law School, also thinks that "it's obvious to everyone" that Florida's legal moves to restrict Disney's freedom and independence in the state are a sign that "Florida is punishing Disney for Disney's speech," she told Newsweek.
Tushnet thinks that DeSantis won't personally have to lose a dime on the lawsuit—but the case might eventually touch Florida taxpayers.
"This won't cost DeSantis anything personally since the state will pay for the lawyers," she said. "But depending on whether the state continues hiring outside counsel, it could cost the taxpayers a fair amount."
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