DeSantis is trashing Disney all over America, accusing the company of trying to 'sexualize' children. Don't expect Disney to hit back in court, defamation experts say

• DeSantis has been campaigning all over the US, dragging Disney through the mud as he goes.
• A regular talking point: That Disney is trying to "sexualize children."
• Free speech experts say Disney is limited in how it can defend itself. 

Republican Gov. Ron DeSantis is campaigning for president, touting his record in Florida and dragging Walt Disney World through the mud everywhere he goes. 

In both rallies and town halls, DeSantis shares his version of how The Walt Disney Company pledged to overthrow a law that largely blocks LGBTQ+ subjects from being taught in public schools.

He talks about how, in response, he took away "woke" Disney's special governing powers in Florida, powers that help the mega-corporation build faster and cheaper, ones rival theme parks don't have. 

Then, DeSantis lobs an incendiary accusation: Disney, by opposing the schools bill, was promoting the "sexualization of children." 

He used the language in North Carolina, saying, "We will do battle with anybody who seeks to rob our children of their innocence." In another instance, during a speech in Orlando, DeSantis proclaimed, "It is wrong to sexualize children, it's wrong to put it in your programming, and it's wrong to try to force that in our schools." 

Though Disney sued to maintain its powers in Florida, it has been quiet about DeSantis' "sexualization" accusations and didn't respond to questions from Insider about them. Is Disney — a family friendly company obsessed with safeguarding its iconic brand — going to just sit back and take it? 

It doesn't have much of a choice, four experts on free speech laws told Insider.

Disney likely won't sue for defamation because winning such cases is hard, free speech experts predicted, and the US Constitution protects people's right to speak their opinions even if they're false and harmful. 

"Disney would have to prove that DeSantis made these statements with reckless disregard for the truth, or knew they were lies when he spoke, and those are very hard to do," David Logan, an expert on defamation and professor at the Roger Williams University School of Law, told Insider.

Disney, he added, is likely to have to simply put up with being a "whipping boy" with "almost no recourse." 

Part of Disney's hurdle in the courts would be that DeSantis' statements are his own opinion. At the ultra-conservative Moms for Liberty conference in Philadelphia on Friday, DeSantis again repeated the "sexualization" claim and accused teachers of telling students "that their gender is a choice or that they were born in the wrong body." 

But what exactly does that look like in the classroom? To some parents, a practice such as asking students to state their pronouns on the first day of school might be objectionable. To others — including parents of trans or nonbinary students — it might be seen a sign of welcome and respect. 

"We're dealing with all sorts of language that could be easily construed as opinion, or rhetorical hyperbole, or some sort of other vague category of speech that wouldn't necessarily be actionable," Roy Gutterman, director of the Newhouse School's Tully Center for Free Speech at Syracuse University, told Insider of DeSantis' remarks.

DeSantis' fight singling out Disney is largely unprecedented in recent history. On Capitol Hill, lawmakers — typically Democrats — often bash "big pharma" or "Wall Street" in broad terms. 

US law gives "a lot of leeway for hyperbole in political campaigns because we know people are trying to make sometimes exaggerated statements to score political points," Lyrissa Lidsky, a constitutional law professor at the University of Florida, told Insider. 

Waging a lawsuit could bring Disney unwanted attention 

Aside from the likely possibility of losing a defamation lawsuit, waging it at all could put more attention on DeSantis' statements, Lidsky said.

This phenomenon is nicknamed the "Streisand effect." Twenty years ago, American singer and actress Barbra Streisand complained that a photograph of her mansion in California was an invasion of her privacy. But by doing so, more people checked out the image. 

Similarly, even though DeSantis appears ready keep raising Disney at every campaign stop, a defamation lawsuit would take on another dimension that gets loads of news coverage.

"There are some defendants that would just rather whistle by the graveyard and let it die down on its own than to bring it back to life like a zombie by litigating about it," Logan said. "So that's another strategic thing they have to decide: Do you give attention — if not credence to — the statements by filing a lawsuit?"

A lawsuit would also trigger what's known as "discovery," which is when the plaintiffs and defendants have to show the other side what evidence they have.

Even though Disney would be the plaintiff in a defamation lawsuit, materials uncovered during discovery could put Disney in the position of defending its internal communications or business practices.

As an example, Logan cited instances of emails exchanged at Disney that might mention DeSantis and his position on LGBTQ+ rights. 

Charles Glasser, a first amendment litigator and professor of media law and ethics at New York University, said DeSantis lawyers could also ask Disney about how it screened employees and how many people it fired for inappropriate or illegal contact with children. It could ask for details about a Disney employee recently arrested on child pornography charges.

"Disney lawyers are not dumb," Glasser said. "They'll take a fight they think they can win. But a libel case, or a business disparagement case, would be a circular firing squad. It would be one of the biggest mistakes Disney could make." 

Disney is probably carefully monitoring DeSantis

That isn't to say that Disney isn't all over DeSantis' campaign and press appearances, and looking for opportunities to counter what he's saying. 

Lidsky said she expected that Disney's public relations, business, and legal teams were looking at the issue almost every day. After all, she said, "The long-term health of Disney's business is affected by being public enemy number one of the next potential US president."

"I'm sure they're thinking of every possible way they can fight against the tarnishment of their brand that's available," she said. "They are famously protective of their brand because their success as a company partly hinges on a perception of wholesomeness. They're family friendly." 

The company can rely on its PR team given that, if they don't defend themselves in some way, the public might wonder why. They can issue press releases, hold press conferences, and back other candidates who support them, Gutterman said.

"There's the court of law and then there's the court of public opinion, and Disney certainly has ample resources to engage in counter speech," he added. 

In some ways, Disney might actually gain more support during the feud, especially from consumers on the left or from consumers who don't like DeSantis, he added. 

DeSantis still has to be careful

Ultimately, the DeSantis-Disney feud is happening because Americans are deeply divided over the direction of the culture amid a "period of flux," Lidsky said, "and Disney is one of the arbiters of culture in our country." 

That means if Disney does ever consider litigation it'll have to think about what message it's sending by doing so.

For instance, Lidsky pointed out, Americans used to sue more frequently when others falsely accused them of being gay. But that's lessening because it's built on a premise that there's something wrong with being gay. 

Similarly, by not suing, Disney may be demonstrating that it stands by its positions and programming.

DeSantis and the right have panned it as "sexualization" that Disney sometimes includes LGBTQ+ characters in shows, especially after a Disney animation director said in a leaked internal call that she had a "not-at-all-secret gay agenda." 

Not all parents agree that's problematic, however, and instead want more LGBTQ+ representation, especially given that Disney has long had entire storylines for children's programming centered on heterosexual romantic relationships.

Despite being on solid ground up to this point as far as the First Amendment is concerned, DeSantis and his staff can't say whatever they want without opening themselves to a possible defamation lawsuit. But Glasser said Disney "can't touch" DeSantis as long as he continues to speak "at 50,000 feet." 

"If I were advising DeSantis, I would tell him to make it very clear to your listeners that this is your opinion on a larger issue and that you're not accusing any particular individual of wrongdoing absent of some hard proof," Glasser said. 

The comments could veer into defamation if DeSantis were to make a more specific accusation of illegal activity about harming children that he knew was false.

"That's where the line will be crossed," Gutterman said. "But name calling, and vague statements, vague insults, won't rise to the level of an actionable lawsuit."