On April 26, Disney sued DeSantis in federal court.  And on May 1, DeSantis (well, the five DeSantis appointees to the new Central Florida Tourism Oversight District) sued Disney in state court.

The federal case is essentially about a state government allegedly interfering with contracts (Disney’s efforts to lock in land use and development rights) in retaliation against  political speech; the state case is essentially about the notion that the contracts were allegedly invalid to begin with.

There are plenty of explainers already out there on some aspects of all this: the King Charles III cameo in the contracts and the rule against perpetuities, the Contracts Clause claim front and center of Disney’s complaint, the fact that the CFTOD board is threatening to raise taxes (on Disney, naturally) to raise the money to carry out the case, on what the heck the CFTOD is in the first place.

For this blog’s purposes, I’m most interested in the First Amendment claims in the federal suit, against both the CFTOD and the legislature.  They allege official state retaliation against protected speech (and that allegation also factors in to the legitimacy of the other federal claims, which largely turn on justification).  DeSantis and his allies in the legislature and on the CFTOD board haven’t been shy about leaving a trail of evidence: Disney recites some in their complaint, including in DeSantis’s own recent book, and it’s hard to believe there’s not much more to be had in discovery (also, it’s hard to believe what’s out there already wouldn’t prove the case).  And it’s that evidence that makes this most curious.

Retaliation cases are a curious thing.  “[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech — that’s blackletter law, confirmed again in 2019.  Easy-peasy.  But in this arena, the Court appears profoundly afraid of the big-bad floodgates of litigation, and occasionally gestures toward evidentiary difficulty as a way to walk away from enforcement of the principle in practice.  And so in that very 2019 case, the Court cut most retaliatory arrest cases off at the knees (while leaving a bit of space for egregious cases).  I tend to see Rucho with the same lens, except for the escape valve for egregious cases — ‘cause if ever there was an egregious case in the gerrymandering arena, Rucho was it. 

The Disney v. DeSantis litigation may never see a trial court opinion on the merits, of course, much less action on appeal.  But I’ll be watching to see whether the extent of the evidence here actually ends up driving the law, rather than the other way around.