By Dara Kam ©2023 The News Service of Florida
TALLAHASSEE — A federal judge on Tuesday heard arguments as Walt Disney Parks and Resorts tries to keep alive a lawsuit alleging the state unconstitutionally retaliated against the entertainment behemoth because of Disney’s opposition to a controversial education law.
U.S. District Judge Allen Winsor is considering motions by Gov. Ron DeSantis’ administration and the Central Florida Tourism Oversight District to dismiss the lawsuit, which stems from the overhaul of a special taxing district that for decades essentially gave Disney self-governing power over its theme parks and neighboring environs.
DeSantis clashed with Disney after the company’s leaders in 2022 spoke out against a law restricting instruction on sexual identity and gender orientation in schools. At the governor’s direction, the Republican-controlled Legislature replaced the Reedy Creek Improvement District with the Central Florida Tourism Oversight District, whose board members are appointed by DeSantis.
Disney’s lawsuit alleges the changes punished the company for political speech and violated the First Amendment.
But lawyers for the governor and the Central Florida Tourism Oversight District board disagreed Tuesday.
“These laws are, on their face and in substance, ordinary, standard, regulatory provisions that regulate, what? They regulate special districts. They don’t even regulate directly Disney,” attorney Charles Cooper, who represents the Central Florida Tourism Oversight District board, told Winsor. “That dooms their free speech claim.”
The Legislature and DeSantis in 2022 approved a law that called for eliminating the Reedy Creek district and five other special districts, with the dissolution scheduled to take effect in 2023. But in February, they revisited the issue and replaced Reedy Creek with the Central Florida Tourism Oversight District.
The laws did not target Disney, Cooper said.
“We don’t have a situation here where these laws have singled out this particular plaintiff,” he said. “Neither statute that is before you explicitly singles out Disney.”
David Costello, a state deputy solicitor general, urged Winsor to dismiss DeSantis and Florida Department of Commerce Secretary Alex Kelly as defendants in the case.
But Daniel Petrocelli, who represents Disney, told Winsor that the governor is “front and center” in the alleged retaliation against Disney.
“What is it you want the governor to not do, that you fear he might do?” the judge asked Petrocelli.
“Well, we don’t want him to make any more appointments,” Disney’s lawyer responded.
The court also could block DeSantis from giving direction to the board or taking action to control it, Petrocelli added.
“He’s effectively, de facto in control” of the board, Petrocelli said.
The board appointments are “allegedly unlawful,” Petrocelli argued because the law creating the new board was aimed at punishing Disney.
Winsor also asked what would happen if the new board was dissolved.
“Is it a statutory revival scheme?” the judge asked, referring to returning to previous laws.
“Yes, because the (new) statute … would be ineffective,” Petrocelli said.
Under the previous laws, the Reedy Creek board was elected by Disney and a small number of other property holders in the district.
“As a practical matter, somebody’s going to have to fill the void,” Petrocelli said.
Winsor said he would issue a ruling on the motions within the “next couple weeks.”
DeSantis, who is seeking the Republican nomination for president in 2024, has made the battle with Disney a frequent talking point as he travels the country and spars with GOP opponents.
DeSantis targeted Reedy Creek after Disney issued a statement vowing to fight the 2022 education measure, which opponents called the “don’t say gay” law.
“Our goal as a company is for this law to be repealed by the Legislature or struck down in the courts, and we remain committed to supporting the national and state organizations working to achieve that,” the company said in a March 2022 statement.
After Reedy Creek was replaced, Disney filed the lawsuit in April and revised it in September.
Jonathan Hacker, another attorney for Disney, told Winsor during Tuesday’s hearing that the law unconstitutionally retaliated against Disney for expressing a political viewpoint.
“This is as clear a case of retaliation against protected speech as the court will ever see,” Hacker said.
But Costello argued that Disney wouldn’t regain control over the special district if Winsor blocked the laws.
“I think its (Disney’s) real gripe is that it lost its prior district and there’s a new one now in its place,” Costello said, adding that Disney is arguing that it is being harmed “by the mere existence of the law.”
Winsor pushed him on the issue, however, saying Disney alleges that the new board is taking actions that damage the company.
“It’s not just, ‘Our feelings are kind of hurt,’” the judge said.
Costello said Disney hasn’t detailed “specific harms” and can’t directly tie DeSantis to the board’s actions.
“There isn’t de facto causality here,” he said.
