Legendary theme park Walt Disney World sprawls across 43 square miles of Central Florida. This land lies within a special improvement district that Disney long controlled. (Land ownership determined membership on the district board, and Disney is the largest landowner in the district.) Last year, though, Disney lost its control over the district due to a change in Florida law. This allows Governor Ron DeSantis to choose the board members, subject to confirmation by the Florida Senate.
Why would the Florida government make this change? Disney claimed that this happened because it opposed a law that the legislature passed in 2022. Sometimes known as the “Don’t Say Gay” law, the Parental Rights in Education Act limited the discussion of sexual orientation and gender identity in public schools. After numerous Disney employees criticized the law, then-CEO Bob Chapek formally opposed it during the period between its passage by the legislature and its signature by the Governor. (This did not deter DeSantis, who signed the law as expected.) The change to the special improvement district happened soon afterward.
Disney then sued DeSantis, the Secretary of the Florida Department of Commerce, and the members of the new district board. The entertainment giant argued that the state had violated the First Amendment of the U.S. Constitution by changing the district governing structure in retaliation for its protected speech. Last week, however, a federal judge dismissed Disney’s case.
The judge ruled that Disney lacked “standing” to sue DeSantis and the Secretary. Standing is a constitutional doctrine that requires a plaintiff in a lawsuit to show an injury that can be traced to the defendant’s action, and that is likely to be resolved if the court rules in the plaintiff’s favor. If a plaintiff does not have standing, their lawsuit cannot proceed, regardless of its overall strength.
For its claim against DeSantis, Disney claimed that traceability arose from the Governor’s power to appoint board members and his alleged control over their actions. The judge rejected each of these arguments. One of the main problems was that Disney asked the court for an order stopping DeSantis from appointing board members. However, this would require it to show imminent future harm. Since DeSantis already had appointed the board members, an injunction against future appointments would not change the situation. The judge also noted that the injury alleged by Disney involved its loss of control over the board, so an order stopping DeSantis from influencing the board would not resolve that problem. He then explained that Disney had failed to show an injury attributable to the Secretary.
On the other hand, the judge found that the company had established standing for its claims against the board members. After considering these claims further, though, the judge dismissed them as well. His reasoning relied on a decision called In re Hubbard by the Eleventh Circuit Court of Appeals, the federal appellate court for Florida. The Eleventh Circuit had ruled in Hubbard that a plaintiff cannot bring a First Amendment claim when a statute is constitutional on its face by arguing that the legislature had a constitutionally impermissible purpose. The judge noted that the Florida legislature has the authority to decide the structure of special improvement districts in the state. On their face, the laws changing the district governing structure did not violate any constitutional rights.
Disney promptly appealed the ruling. That sends the case to the Eleventh Circuit, which will need to decide whether the trial judge correctly applied the standing doctrine and the Hubbard rule.
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