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Court Rejects, on Procedural Grounds, Challenge to Florida Repeal of Disney's Special Government District

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From Tuesday's decision by Judge Cecilia Altonaga in Foronda v. DeSantis (S.D. Fla.) (for more on the substantive First Amendment question, see these posts):

Plaintiffs are Florida residents and taxpayers. They challenge the validity of a bill recently passed by the Florida legislature and signed into law, Senate Bill 4-C, that will allegedly "eliminat[e] a special legal status that allows Walt Disney World … to operate as an independent government[,]" known as the "Reedy Creek Improvement District[,]" in the Orlando area. {Although Plaintiffs filed suit in this District, the conduct at issue and the parties are more closely connected to the Orlando area, and the Complaint's caption treats this as a suit in the "Miami Division" of the "Middle District of Florida[.]" At the risk of stating the obvious, no such division exists, nor is the undersigned a judge in the Middle District.}

In total, Plaintiffs assert four claims against three Defendants, Florida Governor Ron DeSantis, Florida Secretary of State Laurel Lee, and Florida Director of the Department of Revenue Jim Zingale. In Count I, Plaintiffs allege that Senate Bill 4-C violates Florida's Reedy Creek Improvement Act and "contractual obligations" the state owes to Floridians (although the Complaint includes no attached contract). Count II alleges that the bill violates Florida Statute 213.015. Count III seeks relief under section 1983 for violations of "Disney's First Amendment rights[.]" …

At least three jurisdictional defects compel dismissal of the Complaint.

First, the Court lacks jurisdiction over Plaintiffs' state-law claims. "State officials are immune from suit in federal court for claims arising under state law because 'it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.'" Alabama v. PCI Gaming Auth. (11th Cir. 2015) (quoting Pennhurst State Sch. & Hosp. v. Halderman (1984)). The Eleventh Amendment bars such suits whether the plaintiff seeks damages or equitable relief, and whether or not the state officials' alleged conduct violates the U.S. Constitution in addition to violating state law. This limitation on federal judicial authority is jurisdictional.

Second, the Court lacks subject-matter jurisdiction over Plaintiffs' sole remaining claim for violation of Disney's First Amendment rights. "[A] party generally may assert only his or her own rights and cannot raise the claims of third parties not before the court." A few narrow exceptions to this rule exist. To have third-party standing, (1) a plaintiff must "have suffered an 'injury in fact,' giving him or her a 'sufficiently concrete interest' in the outcome of the issue in dispute;" (2) the plaintiff must have a close relationship with the party whose right is being asserted; and (3) some obstacle prevents the third party's ability to protect its own rights. The "most important justification for third-party standing" is "the potential dilution of the third party's rights" resulting from the third party's inability to assert its own rights….

Plaintiffs do not plausibly allege they have suffered any concrete injury as a result of the alleged violation of Disney's First Amendment rights, and nothing in the Complaint shows Plaintiffs have a close relationship with Disney. Even more critically, Plaintiffs have not plausibly alleged that Disney faces any hindrance in asserting its own First Amendment rights. Far from it: Plaintiffs expressly allege that they "expect Disney and the State of Florida to litigate this matter for a significant period of time[.]" …

Another notable exception to the general principle that a party may not sue for violations of others' constitutional rights applies in the First Amendment context. But that exception relaxes traditional standing requirements only when a litigant asserts a claim of First Amendment overbreadth. Plaintiffs assert no such claim here. They instead allege what is in essence a First Amendment retaliation claim on Disney's behalf. And First Amendment retaliation claims do not qualify for watered-down third-party standing standards.

Third, and finally, none of Plaintiffs' claims is ripe.Senate Bill 4-C does not take effect until July 1, 2022.When aplaintiff files "a preenforcement, constitutional challenge to a state statute, the injury requirement may be satisfied by establishing a realistic danger of sustaining direct injury as a result of the statute's operation or enforcement."The plaintiffcan satisfy this requirementifsheis(1)"threatenedwithapplicationofthestatute;(2)applicationislikely;or(3) there is a credible threat of application."

Plaintiffs do not meet this standard. The challenged law does not apply to them, they do not allege direct harm as a result of the challenged law, and they do not plausibly allege any credible threat of direct harm in the future. Plaintiffs' theory of standing is that the elimination of the Reedy Creek Improvement District might result in financial harm to Plaintiffs by virtue of a tax increase that has not yet been enacted. That indirect and highly speculative alleged injury cannot support federal jurisdiction. Senate Bill 4-C itself will not raise Plaintiffs' taxes. Again—it is worth emphasizing—the bill does not apply to Plaintiffs at all….

Plaintiffs' lawyer, William Sanchez, is running for the U.S. Senate. Thanks to the Media Law Resource Center MediaLawDaily for the pointer.

NEXT: "Full of Sound and Fury, Signifying Nothing" in Netflix Lawsuit Over Cuties Prosecution

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  1. What a waste of the courts time. The attorney should be sanctioned for bringing such a poorly made and unsupported case.

    1. If the complaint was that bad, should we assume the lawyer was auditioning for Trump Election Litigation: Elite Strike Force?

  2. Was William Sanchez paid for this? Does a fee for filing a frivolous lawsuit to promote a political campaign count as a campaign contribution?

  3. Worth noting, the judge threw the case out for lack of jurisdiction on its own initiative. The defendants did not file a motion to dismiss.

    1. Best possible outcome for the plaintiff; no Rule 11 motion/sanctions, no motion to dismiss, etc. Even better, can still posture that it wasn't a decision on the merits.

      1. Ask Trump how well that worked out.

  4. Makes sense, standing seemed a bit iffy. The county governments that will be holding the bag for bonds, or even the bond-holders themselves would be better plaintiffs for challenging this in court.

    1. To which the county government can through property tax assessments require Disney with their multi-trillion dollars, to repay. Which is something the media really does like to leave out of their "analysis" of these stories....

    2. The county isn’t going to be left holding the bag, it’ll be Disney’s bag same as it ever was. DeSantis has already said that the current special district will be replaced with a successor district that will inherit all the obligations of the old district, but won’t have special powers to approve its own projects and provide its own governance. The current district doesn’t expire for a year so there is adequate time to figure out the details.

      The idea that someone else is going to get stuck with Disney’s bills is just fantasy (Fantasia?), unless Disney can pack up its entire park in moving vans and move it to Cuba or Venezuela overnight where can’t be foreclosed., which could be in the list of options for a magical kingdom.

  5. I was in front of her once. She is a tough cookie. She had a Medicare fraud case before our hearing--the fraudsters were up for sentencing. One of the convicted defendants was a mother, and her minor children were there. The mother asked for some amount of time before her sentence began, so she could be with her kids. The Judge said "no, you knew sentencing was today" and had her hauled away by the US Marshal in front of the kids.

    1. I have seen a few stories where defendants show up in court for sentencing incorrectly assuming there won't be jail time.

      A coworker was out one week for vacation. The next Monday he wasn't at work either. He had spent the previous week in court. He was convicted and sentenced and sent off to jail immediately after trial. If he had been acquitted most of us would not have known.

  6. It was just a campaign stunt anyway.

    1. The lawyer's complaint, DeSantis' lack-of-virtue-signaling, or both?

      Carry on, clingers. So far as your betters permit. Not a step beyond.

      Thank you for your continuing compliance.

      1. "DeSantis' lack-of-virtue-signaling"

        So, the Rev claims that protecting children from sexual predators shows a LACK of virtue.

        Pretty much tells us everything we need to know about The Rev

        1. Explain how anyone is being protected from sexual predators via Florida's action here.

  7. Could the Plaintiffs have alleged that Disney likely would fear further retaliation for speech on public issues and carefully limit such speech and that, accordingly, they (plaintiffs) would be deprived of hearing Disney's speech?

    1. The judge said you can't make a First Amendment claim for retaliation against somebody else.

      1. The cases do talk about a First Amendment right to receive information. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) ("[W]here a [willing] speaker exists ... the protection afforded is to the communication, to its source and to its recipients both."); Lamont v. Postmaster General, 381 U.S. 301 (1965) (right to receive as applied to foreign mail); Procunier v. Martinez, 416 U.S. 396 (1974) (right to receive as applied to prisoner mail). Courts treat it much like a form of third-party standing as to regulations on a speaker. Id.

        In principle, there is no reason to believe that a right-to-receive claim could not be made with respect to a First Amendment retaliation claim. The listener has a right, and retaliation could harm that right. But that is in the abstract. In practice, you still need to show standing.

        Standing requires showing not just a legally protected interest, but also an invasion of the interest (1) that is concrete and particularized, (2) that is actual or imminent, not conjectural, (3) that is fairly traceable to the defendant, and (4) that is redressible. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

        A particularized injury is probably the biggest hurdle here. Lamont and Martinez made for easy cases as far as particularized injury -- the plaintiffs could show that some particular person wanted to send mail to them. They had a special injury. By contrast, the plaintiffs in OP's hypothetical would seem to have an injury shared by the population in general. It is the very definition of a non-particular injury.

        Having a non-speculative and redressible injury might also be a hurdle. If you are the first-party-speaker plaintiff in a First Amendment retaliation suit, the retaliation provides all the injury you need, whether it causes you to shut up or not. But for a third-party-listener plaintiff, it seems as though you would need to show that the speaker you wanted to listen to has stopped speaking, and that the relief you seek will cause them to start again. Those might be hard to plausibly allege when it comes to Disney.

  8. Let me know when Arlene's Flowers is back in business. you know, the company that suffered First Amendment retaliation from WA, because they said they weren't going to work same sex "marriage" ceremonies

    As SCOTUS let WA destroy Arelene's, the idea that "retaliation for corporate speech isn't allowed" is really quite ludicrous

  9. An Open Letter to Prof. Volokh

    This post, a presentation of the case with no discernible commentary is of concern to those of us who regard your voice and your intellect and your committment to free speech as, well, great. The concern is that what appears to be a bias on your part in favor of extreme right wing repression of speech is damaging to your standing and reputation, and that if it continues your voice will lose much of its strength and you could be regarded as just another partisan commentator, one who ignores the threat to free speech by one side while exagerating the threat from the other side.

    While a small number of misguided progressive represent a small danger to freedom of speech, news of recent weeks reveals that it is the right wing Republicans who represent the greatest danger. Consider these items.

    1. Credible reports show that Donald Trump wanted to use the power of the Presidency to silence and punish his critics who were retired military personnel.

    2. The state of Missouri is trying to pass legislation restricting the speech of pharmacists. "The Missouri state legislature passed a bill which contained a clandestine provision on its 32nd page banning pharmacists from telling patients about the potential dangers of using unproven drugs touted by conspiracy fringe groups as “forbidden cures” for Covid-19, the Daily Beast reports."

    3. Florida with its radical governor and compliant legislature seems determined to promote government control of speech based on content. One would have expected continuous vigorous condemnation by you.

    4. Republican governors of Virginia and Maryland are calling on the federal government to maximize enforcement of laws prohibiting protests near the residences of judges and Justices.

    Space does not allow me to quote more of the many large instances of attempts, some successful, some not of radical Republicans using the power of government to suppress speech they do not agree with. This, not some dumbass university not letting some dumbass speaker give a speech on campus is the greater concern.

    Please Prof. Volokh, if you are truly serious about your support of free speech and your condemnation of attempts to suppress it, please, please adress the forces against speech in a bi-partisan manner. Just because a person disagrees with the purpose and content of speech does not mean they should stand silent when that speech is attacked. In fact, in that instance it is most important to attack the attackers.

    1. What utter tripe. If you think anything about this counts as "extreme right-wing" anything, you need to examine your own biases and how they are affecting your perceptions.

      1. Really?! Targeting Disney for their speech like this is just normal stuff?

      2. Notice that once again, for the umpteenth time an individual who disagrees with a post I have made provides no logic, no reason, no analysis, just mindless personal attacks. Of course when you have no logic, no reason and no analysis for your position that is what you do.

        Today in the NYT Rich Lowry of National Review while trying and failing to white-wash Ron Desantis unintentionally provided evidence that the radical right wing is using government to attack free speech. Here is what Mr. Lowry said about Florida's attack on Disney.

        "The revocation of its special tax status is a frankly retaliatory act that also presents free-speech issues and could prove a legal and policy morass."

        But then Mr. Lowry goes on to say how that is okay, because Disney's use of free speech is not speech with which Mr. Lowry agrees.

        "The company never would have been granted this arrangement 55 years ago if its executives had told the state’s leaders, “And, by the way, eventually, the Walt Disney Company will adopt cutting edge left-wing causes as its own.”"

        Wow, notice Mr. Lowry does not say Disney would be punished for engaging in political speech, it is that Disney would be punished for engaging in left wing speech. Right wing speech, no problem. Wow.

        Don't think coercision is involved. Mr. Lowry spells it out.

        "The broader point of making an example of Disney is to send a message to other corporations that there could be downsides to letting themselves be pushed by progressive employees into making their institutions weapons in the culture wars, and conclude it’s best to stick to flying planes, selling soda, and so on."

        Mr. Lowry of course is just saying out loud what the radicals believe. Government suppression of speech is okay when it is speech they disagree with. And if that is not enough to get the attention of individuals such as Prof. Volokh, well, look for Fascism coming to a theater near you.

    2. " The concern is that what appears to be a bias on your part in favor of extreme right wing repression of speech"??!?

      "1. Credible reports show that Donald Trump wanted to use the power of the Presidency to silence and punish his critics who were retired military personnel."

      So "credible" that you don't provide a single link

      2. "The state of Missouri is trying to pass legislation restricting the speech of pharmacists". Really? It's "repression of speech" to establish professional codes as to what professionals can say?
      You had a talk with the ABA recently?

      3: "Florida with its radical governor and compliant legislature seems determined to promote government control of speech based on content" By this you mean that the State government is telling State paid teachers what they can say while they're working?
      Oh, the horror!

      4. "Republican governors of Virginia and Maryland are calling on the federal government to maximize enforcement of laws prohibiting protests near the residences of judges and Justices." Wow, those horrible people! They're calling for the Federal government to enforce federal laws against domestic terrorists threatening violence against judges in an attempt to change the outcome of a case!

      Because nothing says "honest enforcement of the laws" like terrorists threatening to murder judges who don't rule the way they want!

      You are a really screwed up creature

  10. DeSantis, Lowry and Florida: That's a nice little Constitution you have there, wouldn't want anything to happen to it would you?

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