Court: U.S. District Court for the Northern District of Florida, Tallahassee Division
Date Filed: July 28, 2023
Background: In March 2022, Florida Gov. Ron DeSantis pledged to “fight back” against the Walt Disney Company for its opposition to a bill limiting instruction on sexual orientation or gender identity in schools.
The Florida Legislature later passed — and the governor signed — a package of legislation that dissolved the special taxing district that for decades had allowed the company to effectively govern its operations at the theme park.
In its place, the legislation created a new oversight district with a board handpicked by the governor and purported to void development deals executed by Disney under the previous taxing district arrangement.
Disney sued DeSantis and other Florida officials in April 2023, alleging that the governor and his allies had unlawfully retaliated against the company for speaking out against the so-called “Don’t Say Gay” bill. A couple of months later, DeSantis asked the U.S. District Court for the Northern District of Florida to dismiss the lawsuit.
Our Position: The district court should deny the motion to dismiss.
- The First Amendment prohibits the government from retaliating against a speaker as DeSantis and other Florida leaders retaliated against Disney.
- Courts can and do invalidate laws motivated by impermissible animus regardless of whether that motive is apparent on the face of the law.
- In order to protect constitutionally mandated First Amendment interests, the district court should acknowledge that Disney has established a prima facie case of retaliation against their protected speech.
- The district court should not permit admittedly pretextual justifications to defang the First Amendment.
Attorneys at Gibson, Dunn & Crutcher LLP represented the Reporters Committee for Freedom of the Press in this friend-of-the-court brief.
Quote: “[T]he type of retaliatory action alleged here — an attempt to hit a perceived critic in the pocketbook — is particularly dangerous for journalists and news organizations. Without a check on state action of this kind, they will face the untenable, and unconstitutional, risk that watchdog journalism and coverage of public issues will lead to government actions of all kinds designed to punish and deter such reporting, all to the detriment to the free flow of information on matters of public concern that has long been the hallmark of our democratic system of government.”