DeSantis v. Disney: Who has the edge in a long, drawn-out fight?

A historic lawsuit against the state of Florida indicates Disney, never known for backing down in court, means business.
A statue of Walt Disney and Micky Mouse stands in front of Cinderella's Castle at the Magic Kingdom at Walt Disney World in 2019. Florida and Gov. Ron DeSantis are poised for a legal fight against Disney over authority over the company’s theme park properties. Disney has sued the state, claiming it has been unfairly targeted over speech it says is protected.
A statue of Walt Disney and Micky Mouse stands in front of Cinderella's Castle at the Magic Kingdom at Walt Disney World in 2019. Florida and Gov. Ron DeSantis are poised for a legal fight against Disney over authority over the company’s theme park properties. Disney has sued the state, claiming it has been unfairly targeted over speech it says is protected. [ JOHN RAOUX | AP ]
Published April 28, 2023|Updated April 29, 2023

In one corner, you have the third-largest state in America, with a gross domestic product of more than $1 trillion and a governor who likely has eyes on the White House.

In the other, you have arguably the most powerful entertainment company of all time, a deep-pocketed entity whose economic value to Florida is hard to overstate.

Welcome to the courtroom phase of DeSantis v. Disney.

The war of words and votes between Gov. Ron DeSantis and the Walt Disney Co. escalated this week from a battle over optics and local rule to a lawsuit from Disney. It argues the company was being unfairly targeted over its criticism of a DeSantis-backed law restricting classroom discussions of gender identity and sexual orientation.

The suit, filed Wednesday in U.S. District Court for the Northern District of Florida, came after the state voted to strip self-governance powers from the special tax district that oversees Disney properties, and install a board of DeSantis appointees. Before that board could take effect, the previous board voted to cede many of its powers to Disney, limiting the new board’s power. When the new board voted to reclaim that power, Disney filed the suit, which seeks to have a judge invalidate that vote, as well as recent state legislation they say targeted the company.

It’s the first time that Disney, one of Florida’s largest employers, has ever sued the state, said Rick Foglesong, a retired political science professor and author of a book on Disney’s history in the state.

“It’s amazing that our governor would take Disney to task in the first place, but all the more so that they should get into the legal fray here,” Foglesong said. “They’re going the legal route, and so playing more hardball.”

Few companies are as equipped to do so.

Disney’s reputation as a litigative behemoth tends to center around trademark and copyright infringements, said Josh Gerben, founding partner at Washington, D.C., law firm Gerben Perrott PLLC.

“It’s built on Mickey Mouse,” Gerben said. “What makes the company valuable is essentially its intellectual property. So it is extraordinarily protective over it, because that is what makes the company what it is.”

How tenacious is Disney about protecting its copyrights? It practically rewrote federal law on the matter.

In the ‘90s, the company was one of the most active lobbyists of a law to extend U.S. copyright protections from the life of the author plus 50 years to the life of the author plus 70 years. The law went into effect in 1998 — just months before Mickey Mouse was scheduled to enter the public domain.

“That just shows you the legal prowess of the company,” Gerben said. “They know what they’re doing. And they’re a very sophisticated company.”

Disney is likely to fight the same way over any other legal issue the company deems an “existential threat,” Gerben said.

“There would be very few companies on earth that would have the resources that Disney has to put up a fight,” he said. “If you’re talking about the case in Florida, they’re going to be able to resource that and do everything that would be humanly possible to fight what’s coming from the governor’s office.”

To date, Disney has not publicly expressed much appetite for a legal war. In its suit, the company said it tried to “de-escalate the matter” and “spark a productive dialogue” with the governor’s office, “to no avail.” In a way, that tracks with Disney’s typical behavior when it comes to lawsuits, said Thomas Stanton, an intellectual property attorney with Stanton IP Law Firm in Tampa.

“They kind of bank on the fact that you’re probably not going to want to fight them,” said Stanton, who has advised clients who’ve received complaints from Disney.

As it turns out, however, fighting Disney has become a big part of DeSantis’ brand. In speeches, he talks about standing firm against the “woke activism” of Disney and other corporations. Supporters wear Disney-blue T-shirts reading “DeSantisland” in the company’s distinctive font.

A few Florida Republicans have broken ranks with DeSantis on the issue, suggesting some state leaders aren’t eager to continue this fight. Sen. Joe Gruters, R-Sarasota, on Wednesday voted against the state’s latest attempt to reassert control over the Disney district, saying in a statement that the “heavy hand of government” was not the best way to “support our job creators.”

“I think the governor is right,” Rep. Spencer Roach, R-Fort Myers, told The Wall Street Journal, “but I’m not sure at this point that the public is with us, and I would urge the governor to be cautious as he goes on with this fight with Disney.”

In the end, experts say the legal fight might literally boil down to DeSantis versus Disney.

“We both know that this is not just a legal kerfuffle,” Foglesong said. “It’s also about public relations and politics and the governor running for something more.”

For DeSantis, settling with Disney might run counter to his messaging as a presidential candidate. In speeches, he’s declared he’ll “never back down” from opponents and challengers — “Never Back Down” is, in fact, the name of a political action committee backing DeSantis in his potential campaign. Earlier this month, he floated a range of ideas aimed at wrangling Disney in line with his agenda, from hiking the park’s property taxes to building a state prison nearby.

“They may have run Florida for 50 years before I got on the scene, but they don’t run Florida anymore,” DeSantis said of Disney during a recent speech in South Carolina.

But Disney, too, is under a microscope with regard to investors. Last fall, the company ousted CEO Bob Chapek after a string of controversial or unpopular decisions — including the company waffling on DeSantis’ classroom bill — and replaced him with influential former CEO Bob Iger. As powerful as Iger may be, Disney’s board may find another public loss unpalatable.

“Just spending frivolous money that gets no value back for them, they’re probably not eager to do that,” Stanton said.

Stanton predicts a temporary stalemate while “it plays some tennis ball through the courts for the next year, year and a half.” Ultimately, the two sides are likely to settle. But if DeSantis runs for president, that may not happen for a while.

“If DeSantis wants this to exist until the primaries, he’s kind of in the driver’s seat on the state of Florida’s side on how long this goes,” Stanton said.

That said, in the long run, it’s hard to bet against Mickey.

“Disney has more to lose,” Stanton said, “than Florida has to gain.”