Case 4:23-cv-00163-AW-MJF Document 109 Filed 11/09/23 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

WALT DISNEY PARKS AND RESORTS

U.S., INC.,

Plaintiff, Case No. 4:23-cv-163-AW-MJF

v.

RONALD D. DESANTIS, in his official

capacity as Governor of Florida, et al.,

Defendants.

CFTOD DEFENDANTS’ REPLY MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS SECOND AMENDED COMPLAINT
Jason Gonzalez (No. 146854) Charles J. Cooper (No. 248070DC)
LAWSON HUCK GONZALEZ PLLC David H. Thompson (No. 450503DC)
215 S. Monroe Street, Suite 320 Peter A. Patterson (Pro Hac Vice)
Tallahassee, FL 32301 Megan M. Wold (Pro Hac Vice)
Tel: (850) 825-4334 John D. Ramer (Pro Hac Vice)
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Tel: (202) 220-9600
Fax: (202) 220-9601

November 9, 2023 Counsel for Defendants Martin Garcia,

Charbel Barakat, Brian Aungst Jr., Ron
Peri, Bridget Ziegler, and Glenton
Gilzean, Jr.
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TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ..................................................................................... ii

INTRODUCTION .....................................................................................................1

I. In re Hubbard Forecloses Disney’s Claim. .................................................... 2

II. The Speech Clause Does Not Limit A State’s Ability To Control State
Entities That Exercise Sovereign Power.......................................................... 9

CONCLUSION ........................................................................................................14

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TABLE OF AUTHORITIES

Cases Page
Bethune-Hill v. Virginia State Board of Elections,
580 U.S. 178 (2017)...................................................................................3, 10
Bond v. Floyd,
385 U.S. 116 (1966).......................................................................................13
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993).....................................................................................3, 8
Fraternal Order of Police Hobart Lodge No. 121, Inc. v. City of Hobart,
864 F.2d 551 (7th Cir. 1988)............................................................................5
Georgia Association of Educators v. Gwinnett County School District,
856 F.2d 142 (11th Cir. 1988) .......................................................................... 4
Gregory v. Ashcroft,
501 U.S. 452 (1991)...............................................................................2, 9, 13
Houston Comm. Coll. Sys. v. Wilson,
595 U.S. 468 (2022).......................................................................................13
In re Hubbard,
803 F.3d 1298 (11th Cir. 2015) ........................................................2, 4, 5, 6, 7
Murphy v. NCAA,
138 S. Ct. 1461, 1487 (2018)...........................................................................8
NetChoice, LLC v. Fla. Att’y Gen.,
34 F.4th 1196 (11th Cir. 2022) .............................................................1, 3, 7, 8
Pernell v. Fla. Bd. of Govs. of State Univ.,
No. 23-10616, 2023 WL 7125049 (11th Cir. Oct. 30, 2023) .......................... 3
Rucho v. Common Cause,
139 S. Ct. 2484 (2019)............................................................................. 10, 11
United States v. O’Brien,
391 U.S. 367 (1968).........................................................................................8
Constitutions

U.S. CONST. amend. I. ................................................................................................8

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INTRODUCTION

The Free Speech clause of the First Amendment does not exempt Disney from

our system of representative democracy. Disney asks this Court to set aside actions

taken by the elected officials of Florida who sought to restore the State’s sovereignty

over nearly 25,000 acres of land. Disney’s argument is as meritless as it is audacious.

It contends that its free speech rights were somehow violated when Florida’s elected

lawmakers restructured the governmental entity that oversees what was formally

known as the Reedy Creek Improvement District. In support of its argument, Disney

points to no law, no regulation, and no legal rule of any kind that even mentions

expressive activity. Instead, Disney’s speech claim turns entirely and exclusively on

the purported retaliatory motivations of the lawmakers who enacted otherwise

facially mundane statutes.

Disney’s argument—in the words of the Eleventh Circuit—has been rejected

“many times.” NetChoice, LLC v. Fla. Att’y Gen., 34 F.4th 1196, 1224 (11th Cir.

2022) (quotations omitted). The Eleventh Circuit has held repeatedly and

emphatically that, when a statute is constitutional on its face, a party may not bring

a First Amendment retaliation claim based exclusively on the alleged subjective

motivations of lawmakers who voted for it. This principle goes back decades. And

given our Nation’s commitment to government by legislative text, rather than

intentions, this principle makes judicial and constitutional sense.

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Disney tries to shoehorn its claim into the narrow exception to that principle

for statutes that, on their face, single out a particular individual or entity. But as

Disney itself concedes, the statutes it challenges applied to numerous other entities

and individuals: SB 4C applied to several other special districts, and HB 9B affected

all property owners in the District, not just Disney.

Disney offers no precedent to justify, as a matter of free speech, federal

superintendence over the structure and composition of a State’s government entities.

Nor could it. A State’s authority to determine “the structure of its government” and

“the character of those who exercise government authority” is a power “reserved”

and “guaranteed” to the States by the Constitution. Gregory v. Ashcroft, 501 U.S.

452, 460-63 (1991). The Speech Clause does not constrain that power. The Court

should therefore dismiss Disney’s complaint.

I. In re Hubbard Forecloses Disney’s Claim.

Disney’s claim fails under In re Hubbard, 803 F.3d 1298 (11th Cir. 2015).

There, the Eleventh Circuit held that “the First Amendment does not support” a

“challenge to an otherwise constitutional statute based on the subjective motivations

of the lawmakers who passed it.” Id. at 1312 (citing United States v. O’Brien, 391

U.S. 367 (1968)). Here, Disney brings the precise claim Hubbard prohibits. Disney

has made “clear” that its “claim is not that the U.S. Constitution prohibits a state

from establishing special districts with governor-appointed boards.” Pl.’s Opp’n to

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State Defs.’ Mot. to Dismiss at 8, Doc. 98. Instead, Disney’s claim turns exclusively

on the purported subjective motivations of the lawmakers who enacted SB 4C and

HB 9B. 1 That claim is foreclosed by Hubbard.

Disney responds by citing cases in other contexts that suggest courts may

consider lawmakers’ motivations when reviewing the constitutionality of a

legislative enactment. Pl.’s Opp’n to CFTOD Defs.’ Mot. to Dismiss at 18-19, Doc.

97 (“Opp.”) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520 (1993); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); and Sorrell v. IMS

Health Inc., 564 U.S. 552 (2011)). But the Eleventh Circuit recently canvassed these

very cases and held that they do not “overcome the clear statements in Hubbard and

O’Brien” with respect to the Speech Clause. NetChoice, 34 F.4th at 1224-25. Disney

also cites Bethune-Hill v. Virginia State Board of Elections, 580 U.S. 178 (2017), but

that case involved a claim of racial gerrymandering, where subjective motivations

may be considered, rather than the type of First Amendment retaliation claim that

Disney brings here, which is governed directly by Hubbard—a decision the Eleventh

Circuit just recently reaffirmed and applied. See Pernell v. Fla. Bd. of Govs. of State

Univ., No. 23-10616, 2023 WL 7125049 (11th Cir. Oct. 30, 2023).

1
Disney says that “the fact that the Governor seized control over RCID to
punish Disney for its disfavored speech is not genuinely disputed here.” Opp. 27.
But Defendants’ motion does not “dispute” the factual allegations in Disney’s
complaint because this is a motion to dismiss under Rule 12(b)(6).

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Disney cites a footnote in Hubbard for the proposition that there are

“limitations” to the principle established by Hubbard and O’Brien. Opp. 21. But that

footnote makes clear those limitations are only “where a law is challenged as a bill

of attainder, as an ex post facto law, or on another ground that requires the court to

determine whether the challenged statute is penal in nature.” Hubbard, 803 F.3d at

1312 n.14 (quotations omitted). And in the very next sentence (omitted by Disney),

the Hubbard Court made clear that its “discussion of the O’Brien rule” applies “to

the context before us: a free-speech retaliation challenge to an otherwise

constitutional statute.” Id.

With no way around Hubbard, Disney tries to go through it. Specifically,

Disney tries to shoehorn the statutes at issue here into Hubbard’s narrow exception

for statutes that, on their face, single out specific individuals. See Opp. 21-24. That

exception flows from the Eleventh Circuit’s prior decision in Georgia Association

of Educators v. Gwinnett County School District, 856 F.2d 142 (11th Cir. 1988). See

Defs.’ Mem. in Supp. Mot. to Dismiss Second Am. Compl. at 9-10, Doc. 93-1

(“MTD”). As the Eleventh Circuit has held, however, “[t]he facts of that case limit

the holding of the decision to acts of governmental retaliation that explicitly single

out a specific group.” Hubbard, 803 F.3d at 1314 (emphasis added). “The crucial

fact in Gwinnett County,” the Eleventh Circuit explained, “is that the school board

did not adopt a generally applicable policy—it specifically singled out ‘GAE-GCAE

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members’” by name. Id. (citation omitted). Despite rhetoric to the contrary, Disney

itself is forced to admit that the statutes at issue here do not “explicitly single out”

Disney. Id. Although Disney says the “assertion that SB 4C and HB 9B did not single

out Disney borders on frivolous,” Disney simultaneously concedes that SB 4C

applied to several other special districts and that HB 9B affected all property owners

in the District, not just Disney. Opp. 23-24 (citation omitted). As Disney must

therefore acknowledge, these statutes do not “single out” Disney in either name or

substance.

Disney’s out-of-circuit authority does more to harm Disney’s argument than

help it. In particular, Disney holds up Judge Posner’s opinion for the Seventh Circuit

in Fraternal Order of Police Hobart Lodge No. 121, Inc. v. City of Hobart, 864 F.2d

551 (7th Cir. 1988). But there, the panel acknowledged the same distinction that

Hubbard acknowledges and held that an ordinance regulating workweek hours for

public employees did not “single out” the police department because “[n]o outside

observer reading” the “ordinance would suppose it directed against the police or any

other definable group” and “[p]olicemen were not the only employees of the City of

Hobart who were” affected by the ordinance since “firemen were in the same boat.”

Hobart, 864 F.2d at 553-54, 556. Moreover, “the ordinance did not hurt only the

police who had opposed the incumbent mayor and councilmen; it hurt all the police.”

Id. at 556. In sum, the court concluded the ordinance was “not pinpointed against a

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named individual or group; it is general in its wording and impact.” As explained,

the same is true of SB 4C and HB 9B. Thus, Disney’s claim fails even under the

leading out-of-circuit authority that Disney puts forth.

Disney next suggests that Hubbard “might” control if the statutes applied to

“all special land-use districts in Florida” or to “all landowner-elected district boards

with Governor-appointed bodies.” Opp. 23 (emphasis added). But Disney cites

nothing to support this gerrymandered recharacterization of the principle recognized

by Hubbard and O’Brien. And Hubbard itself forecloses it because the Court made

clear that Hubbard controls a First Amendment retaliation claim like Disney’s unless

the statute “explicitly” and “specifically singled out” a particular individual or

organization. Hubbard, 803 F.3d at 1314. And neither SB 4C nor HB 9B single out

Disney.

Disney also misunderstands Defendants’ point that the statutes at issue here

make this case an even easier call for the application of the rule affirmed in Hubbard,

O’Brien, and NetChoice than the application of the rule in those cases. See Opp. 25.

As Defendants previously explained (MTD 8-9), the statutes challenged in those

cases at least arguably applied to expressive activity on their face, while the statutes

here have literally nothing to do with expression. Disney counters that retaliatory

acts are often carried out through means that do not regulate speech. Opp. 25. But

the point is not what a run-of-the-mill retaliation claim involves; the point is that

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when a First Amendment retaliation claim attacks a duly enacted statute, Hubbard,

NetChoice, and O’Brien foreclose the claim when it is premised solely on the

subjective motivations of lawmakers. And because the statutes here do not event hint

at expressive activity—they are mundane reorganizations of subsidiary government

entities—this case markedly differs from cases like Hubbard, NetChoice, and

O’Brien and thus calls even more clearly for the application of the principle applied

in those cases.

Finally, with no answer to Hubbard and O’Brien, Disney attempts to

transform those decisions. Disney contends that they declined to look at legislative

history because that history “was ambiguous, unknown, or both.” Opp. 26. But

Hubbard did not create a mere evidentiary rule regarding the degree of “ambiguity”

in legislators’ public statements. Instead, it flatly foreclosed First Amendment claims

like Disney’s premised on “the alleged retaliatory motive that [Florida’s] lawmakers

had when passing” the challenged statutes. Hubbard, 803 F.3d at 1313. And in

NetChoice (which Disney ignores for this argument) the Court did not remotely

suggest there was “ambiguity” surrounding lawmakers’ motivations. Indeed, the

Court highlighted particular statements that the challengers had suggested were

evidence that lawmakers enacted the law with a subjective motivation to target

specific entities. See NetChoice, 34 F.4th at 1205, 1224. But after recounting these

statements, the court nevertheless reiterated that the Eleventh Circuit has “held—

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many times—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.” Id. at 1224 (cleaned up). That holding does

not turn on any perceived “ambiguity” in lawmakers’ public statements.

Moreover, Hubbard and O’Brien foreclosed that type of inquiry for good

reason. “Because we have a Government of laws, not of men, we are governed by

legislated text, not legislators’ intentions.” Murphy v. NCAA, 138 S. Ct. 1461, 1487

(2018) (Thomas, J., concurring) (cleaned up). Moreover, the “First Amendment does

not refer to the purposes for which legislators enact laws, but to the effects of the

laws enacted.” Lukumi, 508 U.S. at 558 (Scalia, J., concurring). The Speech Clause

prohibits laws “abridging the freedom of speech.” U.S. CONST. amend. I. The text

of the Speech Clause thus does not put courts “in the business of invalidating laws

by reason of the evil motives of their authors.” Lukumi, 508 U.S. at 558 (Scalia, J.,

concurring). Therefore, like the Supreme Court in O’Brien, the Court should

“decline to void essentially on the ground that it is unwise legislation which [the

State of Florida] had the undoubted power to enact and which could be reenacted in

its exact form if the same or another legislator made a ‘wiser’ speech about it.”

O’Brien, 391 U.S. at 384. Disney’s claim fails under Hubbard and should be

dismissed.

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II. The Speech Clause Does Not Limit A State’s Ability To Control State
Entities That Exercise Sovereign Power.

Under our constitutional system, States have the power to determine who will

exercise “important elective and nonelective positions whose operations go to the

heart of representative government.” Gregory, 501 U.S. at 463 (quotations omitted).

“It is a power reserved to the States under the Tenth Amendment and guaranteed

them by that provision of the Constitution under which the United States ‘guarantees

to every State in this Union a Republican Form of Government.’” Id. (quoting U.S.

CONST. art. IV, § 4) (brackets omitted). “Through the structure of its government,

and the character of those who exercise government authority, a State defines itself

as a sovereign,” id. at 460, and the Speech Clause does not limit “State’s

constitutional responsibility for the establishment and operation of its own

government, id. at 462 (quotations omitted). Disney’s attempt to leverage the Speech

Clause to alter a “governing body’s composition and structure,” Second Am. Compl.

¶ 118, Doc. 87 (“SAC”), thus fails.

Disney’s primary response is to caricature Defendants’ argument. Defendants

neither suggest that “state laws relating to the ‘structure’ of government are

categorically immune from First Amendment protections,” nor do they contend that

States may structure their own government “free from federal constitutional

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restraints.” Opp. 27-28 (emphasis omitted). 2 Similarly, Defendants are not arguing

that the State may restructure an agency to establish a State religion. See id. at 28

(citing Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 709-10

(1994)). Nor are Defendants arguing that the State may restructure an agency for the

purpose of invidiously discriminating on the basis of race. See id. at 28-29 (citing

Bethune-Hill, 580 U.S. at 181-83). Instead, as Defendants explained, “[n]o precedent

supports the proposition that the Speech Clause requires such federal judicial

oversight of State elected officials making policy decisions about how to structure

their own government bodies.” MTD 12-13 (emphasis added).

Indeed, Disney’s invocation of gerrymandering cases only undercuts its

argument. While a claim for racial gerrymandering is cognizable under the Equal

Protection Clause, Bethune Hill, 580 U.S. at 187, a claim for partisan

gerrymandering under the Speech Clause is not, Rucho v. Common Cause, 139 S.

Ct. 2484, 2502, 2504-05 (2019). Disney asserts that this argument “misunderstand[s]

Rucho” because Rucho was grounded in the political-question doctrine. See Opp. 29

n.3. But Disney overlooks why the Court determined that partisan gerrymandering

was a political question: Because some partisan considerations were permissible in

2
Disney’s use of scare quotes around the word “structure” is puzzling since
that is precisely how Disney has characterized its own claim. See SAC ¶ 118
(“Disney has a significant interest in its governing body’s composition and structure,
which has been directly targeted by the enactment of legislation providing for its
complete revision.” (emphases added))

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redistricting, there were no judicially manageable standards to determine “how

much” partisanship “is too much.” Rucho, 139 S. Ct. at 2501. Here, Disney does not

appear to argue (and it is difficult to see how it could argue) that elected officials are

categorically prohibited from taking any policy considerations into account when

deciding how to structure their government. Therefore, on Disney’s theory, courts

would be faced with the same problem identified in Rucho—determining how many

policy considerations are too many when structuring an entity and selecting the

officials who will run it.

The same flaw infects Disney’s attempt to dismiss the cases regarding

policymaking officials as “irrelevant.” Opp. 30. Disney says “nobody disputes that

a state may remove unelected policymaking officials from high office or that elected

leaders may employ senior officers committed to implementing their political

agenda.” Id. (quotations omitted). But if that is true, this case should be over because

Disney’s claim is, in effect, a derivative suit asserting that Florida’s elected officials

may not select the officials who oversee the District. Disney suggests there is a

distinction between selecting individual officers and “determining the structure and

composition of state entities.” Id. But Disney never explains the distinction, and no

distinction is readily apparent. For example, “the hiring and firing of senior

government policymaking officers” in a state entity would seem akin to determining

the “composition of state entities.” Id. (quotations and emphasis omitted). Moreover,

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Disney never explains why this illusory distinction would make any constitutional

difference.

Disney is left to resort to a hypothetical that “a state could redraw a city’s

boundaries for the explicitly stated purposes of segregating voters by race or

religion.” Id. As Defendants explained, supra at 9-10, this case has nothing to do

with discriminating on the basis of race or religion and thus does not implicate the

Equal Protection Clause or the Religion Clauses. Disney continues its hypothetical

with a state “redraw[ing] a city’s boundaries” for political reasons, Opp. 30, but that

is simply a description of partisan gerrymandering, which (as explained) is not

subject to scrutiny under the Speech Clause. And this case is not a gerrymandering

case in any event. Nor does it involve an attempt at “wholly excluding one political

party from local governance.” Id. To the contrary, HB 9B and SB 4C ensure the

District is governed by officials responsive to the State’s elected officials—no matter

what party those officials are from.

Disney seemingly acknowledges the untenable consequences of its theory—

which would lead to partisan lawsuits any time a State eliminates or restructures an

agency for policy reasons. See Opp. 31. But Disney now says its theory applies only

to government decisions restructuring an agency “that directly alter a citizen’s

rights.” Id. (emphasis omitted). Disney does not explain what “rights” it is referring

to, what it means for those unenumerated rights to be “alter[ed],” or what makes an

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alteration “direct” as opposed to “attenuated.” Id. (emphases omitted). It is possible

Disney is referring to what Disney has called “its voting rights in the governing

body.” Opp. 5. But to assume that Disney’s voting power under the prior regime was

a “right” with constitutional significance is to assume Disney’s own conclusion.

There is no individual “right” to a particular structure for a government entity

because the Constitution “reserved” the power of a State to determine “the structure

of its government” and “the character of those who exercise government authority.”

Gregory, 501 U.S. at 460, 463.

Despite months of back-and-forth briefing, Disney has failed to identify a

single case upholding a Free Speech challenge to a State government “body’s

composition and structure.” SAC ¶ 118. Indeed, the only Speech case Disney cites

in support if its argument is Bond v. Floyd, 385 U.S. 116, 137 (1966). Opp. 28-29.

But that case involved a lone elected legislator, not a state regulatory entity staffed

with unelected officials. Moreover, as the Supreme Court recently explained,

because the plaintiff there was an elected legislator, the government action “in Bond

implicated not only the speech of an elected official, it also implicated the franchise

of his constituents.” Houston Comm. Coll. Sys. v. Wilson, 595 U.S. 468, 481 (2022).

Here, it is precisely the opposite. It is Disney that seeks to undermine the State’s

elected officials. It is Disney that aims to nullify the actions of the government

selected by Florida’s voters. And it is Disney that asks the Court to create a Disney-

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only exception to our system of representative democracy. There is no precedent for

this audacious demand, and the Court should reject it.

CONCLUSION

For these reasons, Disney’s complaint should be dismissed.

Dated: November 9, 2023 Respectfully submitted,

Jason Gonzalez (No. 146854) /s/ Charles J. Cooper

LAWSON HUCK GONZALEZ PLLC Charles J. Cooper (No. 248070DC)
215 S. Monroe Street David H. Thompson (No. 450503DC)
Suite 320 Peter A. Patterson (Pro Hac Vice)
Tallahassee, FL 32301 Megan M. Wold (Pro Hac Vice)
Tel: (850) 825-4334 John D. Ramer (Pro Hac Vice)
[email protected] COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Tel: (202) 220-9600
Fax: (202) 220-9601
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]

Counsel for Defendants Martin Garcia,

Charbel Barakat, Brian Aungst Jr., Ron
Peri, Bridget Ziegler, and Glenton
Gilzean, Jr.

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CERTIFICATE OF WORD COUNT

Pursuant to Northern District of Florida Rule 7.1(F), the undersigned counsel

hereby certifies that the foregoing Defendants’ Memorandum of Law in Support of

Motion to Dismiss, including body, headings, quotations, and footnotes, and

excluding those portions exempt by Local Rule 7.1(F), contains 3,195 words as

measured by Microsoft Office for Word 365.

Respectfully submitted,

/s/ Charles J. Cooper

Charles J. Cooper