Disney's lawsuit against Gov. Ron DeSantis has teeth, legal experts say

• Disney's lawsuit accused Florida officials of infringing on its constitutional rights.
• It cited a state legislator who'd suggested political disagreements had "kicked the hornet's nest."
• Disney can use its suit to look for more of that type of evidence to build a retaliation case, experts said.

Disney's long-brewing struggle with Florida Gov. Ron DeSantis culminated in a stunning lawsuit on Wednesday, where the entertainment giant said state officials retaliated against it, citing a lawmaker who said "You kick the hornet's nest, things come up." 

Those remarks, along with those of other Florida officials whom Disney cited as denouncing its purported "woke ideology," can help the company lay the groundwork for a retaliation case, legal experts told Insider.

"If it was unequivocally clear that the whole purpose of a law was to retaliate against Disney for its executives' statements, that's a First Amendment violation," said David Schultz, a visiting professor at the University of Minnesota law school, who has taught constitutional law. 

"The government is not supposed to punish you for the views you express," he said.  

Still, Disney also has the burden to show that it's more likely than not that Florida officials' intent behind the legislation at issue was to retaliate against the company, he added.

That's where the discovery mechanisms of the lawsuit may come in handy for Disney — the company can seek, for instance, more information about telephone conversations and email exchanges by Florida officials from when they were crafting efforts to dissolve Disney's Reedy Creek Improvement District, that is the subject of controversy in the state. 

Schultz said Disney could even seek in the lawsuit to depose DeSantis, who is widely expected to run for president.

Disney's lawsuit also evokes the US Constitution in its other claims, arguing that Florida officials have been infringing on its various constitutional rights, said James Ely Jr., a professor of law emeritus at Vanderbilt University. 

For instance, it evokes the Constitution's Takings clause, which restrains the government from commandeering private property for public use without paying for it in some way. Here, Disney is arguing that its contracts in Florida are private property, and that the legislation amounts to "taking" it away, Ely told Insider.

"If the value of the contracts are destroyed by the Florida legislation, you could plausibly argue that there would be a taking," he said.  

Disney's lawsuit followed a long-simmering conflict with Florida officials 

In its 77-page lawsuit in Florida federal court, Disney laid out its side of a story whose beats may be familiar by now: In March 2022, DeSantis ushered through the "Parental Rights in Education Act," a measure restricting how schools can discuss gender identity and sexual orientation, which Democrats and LGBTQ+ activists have called the "Don't Say Gay" bill. 

Disney's then-CEO Bob Chapek said at the time that the company opposed the measure, and would be broaching it with DeSantis. 

In April 2022, Florida legislators sent through a bill to undo a handful of special districts in the state, including Disney's Reedy Creek Improvement District in Florida, where it had self-governing powers.

At the time, Rep. Randy Fine, a Republican who advanced the bill, said, according to the Associated Press: "You kick the hornet's nest, things come up. And I will say this: You got me on one thing — this bill does target one company. It targets The Walt Disney Company."

Disney cited that quote in its complaint, arguing that "the campaign against Disney raced forward."

In remarks to other legislators last year in April, Fine also said the bill didn't single out Disney. "I would simply say that I reject the premise of the question that this bill is targeting one company and punishing one company," he said at a Florida House State Affairs Committee hearing at the time. "This bill deals with six special districts." 

Fine also told Insider that the measure would end special treatment for Disney not available to other companies in the state, though he also included a barb against "woke" stances. 

"To equate being treated the same way as your competitors to punishment shows a stunning level of arrogance that will not stand in Florida," he said in an email to Insider. "Disney is a guest in our state, and in Florida, Floridians set the rules, not woke Hollywood elites."    

A representative for the Florida Governor's office echoed a similar message in a statement to Insider. 

"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," said Jeremy T. Redfern, the representative. 

"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," he said.  

Representatives and attorneys for Disney did not respond to Insider's emailed requests for comment ahead of publication.

The position articulated by state officials — including that the bill's focus extends beyond Disney — shows Disney will likely keep drawing on more pointed material to support its retaliation claims, said Schutz.

"The state can come up with some neutral reasoning," he said. "It's going to be a question of what evidence does Disney marshal to make their case out there."