The federal lawsuit brought by Disney against its new regulators and Gov. Ron DeSantis features arguments that would have made Walt himself impressed with the defendants’ creativity and make-believe storytelling.
The defendants’ arguments gloss over all of the facts — and there are a year’s worth of them — that would suggest DeSantis and the Legislature retaliated against Disney for lobbying against what critics described as his “Don’t Say Gay” law. Instead, the defendants play pretend as if it never happened.
And a special argument for the Governor presents a fantastical view of the political landscape in Florida, with DeSantis comparing his influence to that of a “lobbyist.”
Disney is suing DeSantis, a former executive agency head and members of the Central Florida Tourism Oversight District (CFTOD). The entertainment giant claims DeSantis retaliated against it for opposing him on the controversial Parental Rights in Education bill, a move that might not mesh with the First Amendment and certainly doesn’t accommodate our nation’s democratic ideals.
The retaliation at issue is the reshaping of the panel overseeing Disney. DeSantis and the Legislature dissolved the old regulatory body and replaced it with DeSantis’ appointees, naming it the CFTOD.
One filing addresses Disney’s free-speech claim against all defendants. In a separate filing, DeSantis asks the court to dismiss him from the case because — along with other threshold matters — Disney doesn’t have standing to sue him, he argues.
The judge will sort out the legal questions. Although, it doesn’t take a bar license to settle the facts. Most of what transpired is in plain view, thanks to the media coverage of the Disney duel and the outspokenness of DeSantis and his cronies.
But the briefs don’t reflect reality. The once-vocal defendants seem to currently be suffering from a lack of forthrightness. Their versions focus largely on the unusual nature of Disney’s regulatory structure and avoid any discussion of the well-publicized authoritarian crusade preceding the lawsuit.
DeSantis’ brief basically points to pixie dust as the cause for the Disney-targeted legislation: “In 2022, the State determined that (Disney’s regulatory body) was an anomalous entity long overdue for reform.”
Just like magic.
The other brief offers a fairy tale excuse: “Florida’s elected representatives eventually decided that the existing structure of (Disney’s regulatory body) did not adequately serve the interests of the State of Florida, its voters, or the other individuals and entities who owned land (near Disney) but lacked adequate representation.”
And yes, that’s about as close as they get to the truth. These read like stories Pinocchio wrote. It’s a version of the facts that “Fantasia” might entertain. But those who’ve consumed news in the past 18 months are well aware that the Legislature didn’t just determine there was a “long overdue” need for reform, and certainly wasn’t motivated by the lack of “adequate representation” (unless, of course, the Governor accomplished robust representation by padding the panel with his friends).
A cursory Google search would reveal more of the real facts giving rise to the Disney dispute. Disney also lays them out nicely in its complaint, which leads the controversy with a story from June 2022 in which DeSantis said he told Disney that its participation in politics “is not going to work out well for you.” It also pulls damning quotes from DeSantis’ memoir, such as his asking the Legislature to work with him covertly on a “thorny issue involving the state’s most powerful company.”
Disney further illustrates the coordinated efforts against it with quotes from legislators, like Rep. Randy Fine’s brilliant acknowledgement: “You got me on one thing, this bill does target one company. It targets The Walt Disney Company.” A person tasked with handling DeSantis’ press at the time in question also is quoted in the brief as tweeting: “Go woke, go broke.”
And that’s just a taste of the treasure trove of “gotchas” cited by Disney in its lawsuit, which will no doubt require the judge to grapple with the motivations driving the legislation that overhauled Disney’s regulatory apparatus.
It’s unclear from the briefs how the defendants will explain the smoking-gun statements, and that’s not a great look. While there’s no requirement that a party volunteer so-called bad facts, failure to address, frame or even attempt to spin them is suspect. The briefing stage is the opportunity to torture the truth as much as possible, and the defendants decided to make believe it never happened.
The non-nonfiction continues in DeSantis’ special brief addressing whether he, individually, should be a part of the suit.
DeSantis argues that Disney doesn’t have standing to sue him. A plaintiff has standing to sue a defendant when, among other things, a court order against that defendant would fix the plaintiff’s problem. DeSantis already made the CFTOD appointments, and so he argues that a hypothetical injunction against him wouldn’t fix the problem, and therefore Disney doesn’t have standing to sue him.
He might be right. But to make that argument compelling, he had to downplay his own power and influence. DeSantis argues that he must have “formal” power to enforce the legislation that targeted Disney, and — despite his appointment and suspension powers — he’s not really in charge of the CFTOD.
This is where things get absurd. DeSantis — who publicly proclaimed there was “a new Sheriff in town” when he signed the legislation at issue — is arguing that his connection to the Disney reform lies only in hand-picking every board member. That’s too remote of a connection, he says.
“Were it otherwise, a plaintiff could drag anyone — lobbyists for example — with no relevant enforcement authority into countless lawsuits simply by claiming that they hold informal sway over those who do,” the brief reads. It later provides another reason why “an influential lobbyist is not a proper defendant.”
The argument positions DeSantis as a lobbyist and the CFTOD as the real government actors.
Now that’s cartoonish.
DeSantis has left no part of the government untouched during his administration and his influence is an iron fist, not a lobbyist’s handshake. The average political observer would scoff at the concept that the CFTOD isn’t under the direct control of DeSantis. Even independently elected prosecutors like Andrew Warren and Monique Worrell — both of whom DeSantis suspended — can’t exercise their discretion in the free state of Florida.
Just how this part of the case unfolds will be interesting. In many ways, DeSantis’ entire governing philosophy is on trial with the standing question. His fingerprints are everywhere in the state and he’s informally put himself in charge of as much as he can. But now he’s arguing that’s not actually the case.
Legally, he might be right. The law is less cynical and seems to endorse the idea that gubernatorial appointees are more than executive puppets. But with respect to DeSantis, it does seem fundamentally unfair: I get all of the benefits and none of the consequences, judge.
He’s won on this argument in the past, however. The first case DeSantis cited in a footnote is one where he prevailed on a standing defense. That order was authored by Judge Mark Walker, an appointee of former President Barack Obama.
The irony is that DeSantis pushed Walker off the Disney case in an earlier stage of the litigation — one example of how little deference he has for other authorities — and is now citing Walker’s work to support his argument that he isn’t that much of a control freak.
And they all lived happily ever after.
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