This is Bloomberg Law with June Brusso from Bloomberg Radio.
Welcome to the happiest place on Earth.
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Disney World may be the happiest place on Earth for visitors, but the company itself is not so happy with Florida's governor ending its ability to govern it's twenty five thousand acre resort. So Disney is suing Republican Governor Ron DeSantis, alleging he orchestrated a targeted campaign of government retaliation as punishment for Disney's protected speech opposing Florida's don't Say Gay law. Desanta says, the lawsuit is political.
They've been treated much different than Universal SeaWorld and all these other places, and so they're upset because they're actually having to live by the same rules as everybody else. They don't want to have to pay the same time everybody else.
But in the lawsuit, Disney points to dessantis his memoir where he described the bill against Disney and said quote, Disney had clearly crossed a line in supportive indoctrinating very young school children in woke politics. And also his many public statements against Disney like this on April sixth.
They are not superior to the people of Florida, and so, come hell or high water, we're going to make sure that that policy of Florida carries the day, and so they can keep trying to do things, but ultimately we're going to win on every single issue involving Disney.
I can tell you that Dessanders has also speculated publicly about what other actions he might take to punish Disney.
And now people are like, what should we do with this land. People have said, maybe create a state park, Maybe try to do more amusement parks.
Someone even said like, maybe you need another state prison.
Who knows.
I mean, I just think that the positive abilities are endless.
My guest is Leslie Kendrick, director of the Center for the First Amendment at the University of Virginia School of Law. Tell us a little about Disney's lawsuit against DeSantis.
So, Disney's recently filed suit against DeSantis on a number of different grounds, contracts clause, due process, the takings clause, and what's gotten the most attention our First Amendment claim arguing that Florida laws that were passed that desantisis behs violate the company's First Amendment rights because they are essentially retaliation for Disney expressing a view about another piece of legislation House Billed fifteen fifty seven, which is often known
as the Don't Say Gay Act, about regulating educators in their presentation of material about same sex orientation.
So this is a.
Claim that essentially that the steps that DeSantis and the legislature have taken since Disney did that amount to a First Amendment by violation of Disney's right to pre speech.
Desantra'ss tough talk talk toward Disney is cited throughout the lawsuit, including eighteen quotes referring to some form of woke Disney. Is that the strongest part of their lawsuit what he said himself.
So, as you know, all of this started more than a year ago when Disney first made the statements about how Spill fifteen fifty seven, and DeSantis was critical of them, saying that they had crossed the line in their criticism of the law. And the complaint does include many statements by DeSantis and also by legislators in Florida, and just to be clear, statements that amounted to just criticism of
Disney wouldn't create the same issues. The reason the statements are important in the context of this lawsuit is that they argue to the motive or purpose of the specific legal actions that the legislature took with regard to Disney's development district there around Orlando. The argument is that these statements show that this action was taken not for some neutral business reason, but precisely because of and out of retaliation for Disney's speech about the Don't Say a bill.
Randy Fine, a Republican who advanced the bill at that time, said, you kicked the hornets 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. Is it targeting Walt Disney enough or does that targeting have to be in retaliation for what Disney said?
Well, let's books for a larger question in law of how we determine what the motivation or reason for a law was, particularly in the context of a multi member body like a legislature, and the Supreme Court has spoken to that numerous times. One thing cited in the complaint is a precedent from equal protection doctrine that suggests you have to look at the structure of the law to
help to wash out its purpose. And here this law has passed under circumstances they are very different from the customary way that the Florida legislature addresses development districts like this, and of course there are about eighteen hundred development districts
like this around the state. More recently, in the Masterpiece cake Shop case involving another part of the First Amendment, the free Exercise clause, the court found that an entire process had been painted by basically the remarks of one or two members of the first governing body that had addressed the problem, and suggested that that was enough to
discover a discriminatory purpose. So they've said a lot of different things about this, and there are cases within the free speech doctrine that suggests the timing of an action, the circumstances of an action, all goes towards the reason that it was done.
Can you explain what Disney would have to prove in its lawsuit.
Yeah, So, what Disney is alleging is that it has enjoyed a special relationship with the state of Florida dating back to nineteen sixty seven with the creation of the Riedy Creek Improvement District, which is the area including the Disney Parks, Walt Disney World and all around there that enabled Disney to develop that property. But at the same time, in post obligations, Disney is responsible for some basic services.
They are electricity and water so forth, and the improvement of it, including you know, hundreds of millions of dollars of infrastructure. Disney's argument is that this relationship has been changed by the legislature at the santis's behest because of Disney's exercise of its First Amendment rights expression of opposition to how Spilled fifteen fifty seven. What they need to show is that that action was taken because of their
exercise at First Amendment rights. Essentially, they need to show a close enough connection between the actions taken the law's pass to dissolve the development district and reincorporate it under the power of the Governor's office, between that and the reasons that the governor and others had stated contemporaneously in lots of different venues for why they were taking that kind of action.
So it seems to a casual observer, and I'll put myself in that position that Dissantis has said a lot about why he was doing it and about getting back at Disney putting disney In's place. Is that enough if he wants to put Disney in his place, or does it have to be in retaliation for what Disney said? I mean, the whole thing started after that law, in Disney's opposition to it.
Yeah.
So you know, the basic idea in First Amendment law is that there are all sorts of reasons that the government could reconfigure a special relationship that it has with a private citizen. We don't have claims of a right to be a public employee or to enjoy a certain public benefit, and the government can reconfigure those relationships for a lot of different reasons. But what it can't do is do that in response to or because of, an
exercise of protected speech by the beneficiary. So you can't take away someone's job as a public university professor because they're communists, for example. That's the takeaway from McCarthy era. So here we have a much stronger record than we usually have of lawmakers taking action in response to an exercise of protected expression. A lot of times these sources
of actions occur kind of sub rosa. You know, a government employee expresses support for their bosses political opponent, and they're quietly demoted or fired, and the government doesn't want to call attention to the fact that that's what it's doing here. Part of the reason I think for the action was also to be able to tell the action to say, we are taking action against woke Disney because
they're woke Disney. So you know, of cour it's going to have to look at all of this, But it's a much different kind of record than you often have when someone's asserting that adverse action has been taken against them because of their exercise of their First Amendment rights.
The governor spokesman said that his office was unaware of any legal right that allows a company to operate its own government or maintain special privileges. That's a reference to the decades old district that's home to Disney World. But isn't that beside the point. That's not really the issue here, whether or not Disney has a right to that.
That's right, it's beside the issue in the First Amendment claim. Because although the government could revisit the relationship with Disney and the existence and conditions of the Ride Creek Improvement
District for all sorts of different reasons. The First Amendment and First Amendment law holds that they can't do it out of response to Disney's exercise of their protective expression, the same way that you couldn't fire a government employee for speech outside of work on a matter of public concern,
except in very very narrow circumstances. There's going to be a very high bar to meet for that, the same way that you couldn't revoke a contract with There's a case from the nineties involving a truck service that had a contract with the city and they're taken off the list of contractors of available towing companies in response to
some protected speech. That's not okay, right, So the law is very clear that even if what we're talking about is a special relationship, First Amendment law says you can't moby that simply in response to protected expression.
Desanders and his allies have characterized their actions as you know, putting Disney on a level playing field with other themed park operators. But Universal Orlando, SeaWorld and Bush Gardens and Legoland do not have oversight boards controlled by the governor. Does that factor in here?
Right there?
Are different aspects to this. One is putting them on a level playing field is not permissible if the reason that it's being done is because of protected speech. Even if it reduces Disney to the same status as others, that's not okay if the reason their benefits are being
taken away is because of exercise of protected expression. But beyond that, there are factual questions here as to whether it's even true that this action puts Disney in the same situation as other similar enterprises, And to the extent that the actions taken do not do that, that can be itself further evidence that this action was punitive and retally tory.
What kind of defense do you think DeSantis would be able to raise in the Disney suit.
Well, I think there'll be a couple different tacts. One will be to try to portray this action is neutral. You already see that in some of the statements that have been made, and to try to draw on strands within the doctrine that are the most hospitable to claims that there's some degree of discretion that government actors have. There are a lot of precedents that they would have
to work around in that regard. You know, The other thing is just sometimes big picture issues, high profile issues like this cause courts to rethink relationships, and they might be arguing that the relationship between government provision of benefits and the speech of private actors, it's time to rethink that. That would be a huge, a huge move. If they were to do that, it may be that they'll stick more toward arguing on the facts that this is not a First Amendment.
Violation, which discovery Disney has the opportunity to look for more kinds of evidence to build its case, like perhaps memos between the governor and his staff, things like that. I mean, they could depose the governor, right sure, So you.
Know, the scope of discovery will be determined by the district court as this case starts to win its way through the system, but it discovery typically does provide more insight into the actions and conversations that were happening behind the scenes. And part of what Disney might be trying to establish here is that there are two different specific acts of the legislature that they're taking issue with that this is part of a larger effort to cut Disney
off at the knees in whatever way possible. Kind of a larger attempt to think about how do we get back at Disney. You know, that would mean that their folks not just on what was said in regard to these specific bills, but what was said around the bills about how are we going to address this new Disney problem? And that could mean discovery that has somewhat of a wider scope.
What is Disney seeking?
If it wins, Disney would like both of the specific laws that were passed that affected it to be declared unconstitutional and to enjoy the enforcement of those acts.
So the first of those back last year provided that any development district that had been incorporated before the Florida Constitution of nineteen sixty eight and had not been reincorporated since then would be dissolved as of June of this coming year. June of twenty twenty three, there were six districts in all of Florida that that was true, of Disney being by far the most prominent one. And then the secondville was directed specifically at Disney, asserting control over
their district. So they would like both of those voided and essentially would like to be returned to status quo ante to the contract terms that had existed for Riedy Creek before all this began.
In conclusion, how strong a case does Disney have.
On existing case law? Based on the complaint, it seems that Disney has a very strong case that adverse action was taken against the corporation in response to protected expressions that was critical of the existing government. And Disney seems to have an unusually thick record of statements already public statements to help establish that.
Thanks so much, Leslie. That's Leslie Kendrick, director of the Center for the First Amendment at the University of Virginia Law School. An unusual twist, the North Carolina Supreme Court reversed itself in a redistricting ruling that could scuttle a major US Supreme Court elections case. It's a highly watched case involving the so called independent state legislature theory, which would ouse state judges and other officials from long standing
roles in shaping the rules for federal elections. But now the North Carolina Supreme Court has overruled its twenty twenty two decision that the Supreme Court has been reviewing. Why did it reverse itself because in the last year's election, Republicans gained control of the state's highest court, and they've backed a Republican drawn congressional map, reversing the decision that the Democratic majority had made in twenty twenty two. Here to help us sort it all out is elections law
expert Richard Brefalt, a professor at Columbia Law School. How rare is it and stunning to see a state supreme court reverse itself after an election that changed the political mail makeup of the court.
It is very rare, and it is very stunning for a court to do this when nothing else changed. And you sometimes see courts changing their positions on something when maybe the new facts developed, or maybe a new background law changed or something. But this is literally within the
space of a few months. The North Carolina Supreme Court reversed itself on really sort of two major voting issues, the Jerrymannering case, but also a case involving a statute involving voter id These were decisions that the court had basically made or reaffirmed in December of twenty twenty two, and now in April of twenty twenty three, they've changed their minds because the membership of the court changed.
Let's talk first about the decision on the congressional maps. What did the court say did explain why it was reversing itself.
The Court basically says, as the US Supreme Court had said, that partisan jerrymandering is non justiciabal. That is, there's nothing in the state constitution that addresses it, and there are no standards that the court could develop that would allow them to consistently review and strike down plans as jerry
manders without making policy judgments inappropriate for courts. The Court very much modeled itself after what the US Supreme Court had done in the case, but also came out of North Carolina case called Rucho US Supreme Court decided four years ago. Now, this case came up under the North Carolina Constitution and its own particular provisions dealing with elections
and free speech and equal protection. But the Court said, we think that the US Supreme Court, in its interpretation of the US Constitution, basically said the standard that we should follow in interpreting our own constitution on these issues, and that the US Supreme Court was right to say that they were not standards that a court could enforce. Here, we don't think there were standards that a court could enforce here under the state Constitution.
Before we go any further explain the situation with the maps, how the court's ruling changed the maps.
What had happened is, of course, the North Carolina Legislature had passed maps that dealt with both the state legislature and the congressional delegation for after the twenty twenty census. Those were challenged in both federal court and also in the North Carolina courts. The North Carolina Courts concluded in the first go round that these were partisan gerrymanders in
violation of the state constitution. They concluded that the state constitution prohibited that They basically sent it back to the legislature, but they also said that we were appointing judges to be special masters to review the plans of the legislature produced. The special masters appointed experts, and ultimately, over the course of two years twenty twenty one twenty twenty two, new maps were approved for the North Carolina Legislature and for
the North Carolina Congressional Delegation. The North Carolina Legislature was still dominated by Republicans under the new mass as well as the old maps, but the North Carolina Congressional delegation. In the elections that were held in twenty twenty two under the court ordered maps, I think basically split evenly. I think it was seven Republicans seven Democrats, whereas people basically thought that under the map that was initially adopted by the legislature likely to be ten Republicans.
Does this decision give Republican lawmakers basically free reign to draw the state legislative and congressional maps as they want to?
Pretty much. I mean, they would still have to abide by one person, one vote, and they would still have to avoid anything that could be accused of being intentional racial discrimination. But in terms of partisan gerrymandering, yes, there would be no constraint.
Does this case advance that so called independent state legislature theory.
It kind of eliminates the problem, which is The independent state legislature theory was a theory of federal constitutional law, with the idea being that under the federal constitution, only
a state legislature can draw up congressional districts. And the North Carolina Supreme Court's decision that said that under the state constitution, the legislature had violated the state constitution even with respect to the congressional districts that is currently actually before the US Supreme Court on a challenge that says a court applying its state constitution cannot take this away
from the state legislature. So I guess you could say what the North Carolina Court just did is consistent with the independent state legislature theory, but it wasn't required by it, because the North Carolina Supreme Court is saying, under our constitution, North Carolina's constitution, the courts just have no role here. It be interesting to see what the US Supreme Court does now, But right now it does not appear that they have a case that they can review. They do
have the case. They did hear oral argument on this question of whether or not the North Carolina Supreme Court, the old North Carolina Supreme Court violated the US Constitution by knocking down the maps of state legislature had drawn. But now the current North Carolina stren Court says they've vacated that decision, the one that's on review before the
Supreme Court. So it's not clear what the US Supreme Court will do now, whether they will continue to make a decision on the theory that this is a question that could come up again in another state, or whether they will conclude that they really don't have a case in front of them anymore.
If they decide not. If the Supreme Court decides not to hear the case, does that send a bad message to state courts that you can avoid having the Supreme Court review.
I don't. I don't know that it sends a message one way or the other. I think it just postpones ultimate decision. There are state courts that continuing to do this now. The Alaska Supreme Court just the week before concluded that jerry mandering violates the Alaska Constitution. Of course, Alaska has only one congressional seat, so there is no federal constitutional issue with respect to drawing the congressional line,
so that's not really a factor. But the Alaska Supreme Court now joins a handful of other state supreme courts and saying that jerry mandering violates their constitution. North Carolina now has just withdrawn from that group and basically says that because there is no specific provision in the North Carolina Constitution that addresses jerry mandering, courts just simply have no right to address it.
The majority opinion said this case is not a bad part is in Paula, but rather about realigning the proper roles of the judicial and legislative branches. Did its opinion support that?
The reasoning was pretty straightforward And it's pretty much the same reasoning that the US Supreme Court gave in its decision not to address partisan juryman ring in a case decided four years ago called Rucho. So you know, on
its face, it's kind of a usual decision. I mean, what makes it seem partisan is it was the result of a partisan election in which, in fact, two Democratic judges on the North Carolina Supreme Court were replaced by two Republican judges, and that led to a change in the Court's approach to an important constitutional question.
Morvy Harper, which you mentioned is before the Supreme Court, and a lot of people were looking at it, some people with fear that the Supreme Court would endorse this independent state legislature theory. Do you think that the Supreme Court will take this opportunity to avoid deciding that case.
It's hard to tell, but it's kind of hard to see how they were able to go forward with the case. The North Carolina Supreme Court says they have vacated the decision that is being challenged in the Supreme Court. So it's not clear what there is the Supreme Court to do. It's possible the Court will say, well, we've heard the arguments and this kind of issue make them up in another state, and so we will make a decision to
give guidance in other states. It's also possible that they'll wait for a case that will come from another state which is still a live case, and you know, holds off and deciding this question until it comes back to them.
Let's talk about the other decisions, and one was about the voter ID laws that North Carolina did a reversalon.
Yeah, so North Carolina has been sort of struggling with this question of what kind of voter ID they can require voters to have. But I think the question of whether or not voters can be required to present ID was settled by the US Supreme Court about fifteen years ago. But there's been a lot of fighting as to exactly what kind of ID they can require, how limited can it be if it's a photo Id's forces count? And what do you do with people who don't have ID?
And how do you help you know? What alternatives do you provide for people who don't have ID. The North Carolina legislature passed a law in the early twenty tens that the courts struck down on the theory that it was racially motivated, that the law was really purposely designed in terms of the specific kinds of IDA that counted and didn't count, to have a particular impact on black voters,
and so that was struck down. The state then went back and actually the voters in North Carolina poved a const social amendment authorizing voter ideal, although again they didn't spell out exactly what kind of voter ID would count. The legislature then went and passed another voter ID law, which was from the perspective of the legislature more generous, you know, had more sources of ID. They wouldcount moral alternatives who didn't have ID. It was still challenged as
having just racial impact. That's the case that was going through the North Carolina court system. I think the lowest court said it was fine. Each mediate court of appeal said no, we think that for a disparate racial impact. The North Countina Supreme Court said no, we think it's fine.
And in the course of doing it, they basically to some extent toughened up on the standard, at least in North Carolina that voters would have to show actually any point that would have to show to show something is racially discriminatory, and they really basically kind of heighten the standard of proving that something was adopted with discriminatory intent, and they basically said, there's just the fact that an earlier version of this was adopted for a discriminatory purpose,
and the fact that North Carolina has had a long history of racial discrimination that's kind of irrelevant to reviewing this particular law.
And in a triple really a triple blow here, it reversed a lower court ruling about the right to vote for those who are convicted of felonies.
That's right. So again many states deny the right to vote if those are of a felony. But there are great dations in terms of, you know, who's actually barred from voting. Most states would bar somebody who's currently serving their sentence, but the question has come up with what if somebody is on parole or has been released on probation and is actually not is still within you know, within the court system, but is not actually in prison.
And the lower courts in North Carolina had basically said that the North Carolina law of banning felons from voting did not apply to people who are no longer incarcerated. The state Supreme Court reversed that and said it would continue to apply to people who are on probation or people who are on parole until the endpoint of their sentences.
Thanks so much, rich It's always a pleasure to have you on. That's Professor Richard Brfald of Columbia Law School. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening to our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law. I'm June Gralso and you're listening to Bloomberg