Disney’s Case Against DeSantis Hinges on Judge’s Interpretation of One Case

On Tuesday, lawyers for Florida Governor Ron DeSantis and the Walt Disney Company argued their cases in front of U.S. District Judge Allen Winsor. The hearing was for Judge Winsor to decide on DeSantis’ motion to dismiss the charges against him. Disney is accusing DeSantis and the Florida Legislature of government retaliation and infringing its First Amendment rights. Lawyers representing Governor DeSantis once again argued that he had “legislative immunity” in this case. Winsor told both sides that he would decide within the next few weeks.

But it appears that this entire case hinges upon Winsor’s interpretation of a 2015 case from Alabama. Depending on how Winsor views the case, In re Hubbard (2015), will determine which side will be successful. So, what is this case, and how does a case from eight years ago in Alabama apply to the situation that Disney and Florida Gov Ron DeSantis find themselves in today?

Related: Federal Judge Hands DeSantis A Huge Personal/Political Win, Next on His Docket, Disney Case

What is In re Hubbard?

In 2010, Alabama passed a law that “prohibit[s] a state or local government employee from arranging by payroll deduction or otherwise the payment of any contribution to an organization that uses any portion of those contributions for political activity.” Before the passage of the law, the Alabama Education Association (AEA) spoke out against lawmakers who voted/introduced laws that they viewed as “anti-education.”

The law was passed to curb the AEA’s ability to engage in political speech. The AEA believed that the law violated its First Amendment Right to Free Speech, and the organization thought that Alabama lawmakers acted in retaliation for the group speaking out against them. Sound familiar?

Lawyers for the Alabama Education Association subpoenaed records from lawmakers, but they refused to turn them over. A District Court Judge allowed the subpoenas to go through, so the Alabama lawmakers appealed to the 11th Circuit Court of Appeals. The Appeals Court ruled in favor of the Alabama lawmakers, saying:

The court’s precedent applying United States v. O’Brien recognizes that, when a statute is facially constitutional, a plaintiff cannot bring a free-speech challenge by claiming that the lawmakers who passed it acted with a constitutionally impermissible purpose. The court concluded that the O’Brien rule applies here, which means that AEA has no valid federal claim to justify intruding upon the lawmakers’ legislative privileges. Accordingly, the court reversed and remanded.

So what does this mean? How lawmakers act when they pass a law doesn’t necessarily matter; what matters is if the law they created is constitutional. In United States v. O’Brien (1968), a student burned his draft card to protest the Vietnam War. Congress had recently passed a law making it illegal to burn a draft card. O’Brien claimed that he was exercising his First Amendment Right to Protest. The Court ruled in favor of the United States, saying that because the law itself was in the government’s interest and was unrelated to the suppression of speech, it was legal.

How Does This Relate To Disney’s Case?

Good question. This presents a considerable obstacle for Disney in this case. Lawyers for Disney have already subpoenaed records from Governor DeSantis and the Florida Legislature but have yet to receive them. And based on this precedent, they may not have to turn them over. Their motives for passing the law that stripped Disney World of the Reedy Creek Improvement District and replaced it with the Central Florida Tourism Oversight District are not really important to the legal side of this case, despite what Disney might think.

Like the AEA, Disney is accusing DeSantis of government regulation for speaking against Florida’s Parental Rights in Education Act, known by its critics as the “Don’t Say Gay” bill.

What Disney will need to prove is that the law that took away their Special District was unconstitutional. It would be an easy case to make that DeSantis, the Central Florida Tourism Oversight District, and the Florida Legislature violated the Contracts Clause of the Constitution, but Disney already moved that case to state court because of an oversight on their part. That could prove to be a crucial error.

Related: Chief Justice John Roberts Just Sent DeSanis A Message: Bring the Disney Case to the Supreme Court, and You’ll Lose

A state court case will eventually make its way to the Florida Supreme Court, which is packed with DeSantis appointees. A federal lawsuit would avoid conflicts within the state and eventually make its way to the Supreme Court. But that could take decades, and Disney would have to deal with the state’s legislation while they waited.

This will come down to a federal judge and his interpretation of this case from Alabama. Attorneys on both sides will continue to argue, but there is now the potential that this will end without a trial. Like everyone else, we will all have to wait until Judge Winsor rules on this case.

We will continue to update this news at Disney Fanatic.