Bloomberg Law
May 5, 2023, 8:00 AM

Disney’s Retaliation Suit Could Fare Better Than Huawei’s Claims

Evan Zoldan
Evan Zoldan
University of Toledo College of Law

Disney’s lawsuit against Florida Governor Ron DeSantis and other Florida officials, alleging it was targeted by the legislature, bears striking similarities to an unsuccessful 2019 complaint brought by Huawei Technologies.

Huawei’s lawsuit was dismissed without a trial. Does this result suggest that Disney’s suit, rooted in the same basic allegation of legislative targeting, is doomed to the same fate? Not necessarily.

In the earlier complaint, Huawei alleged that Congress violated its constitutional rights by prohibiting federal agencies from purchasing Huawei-made technology. The core allegation raised by Huawei was that the statute targeted the communications equipment manufacturer for punishment.

Huawei asserted that members of Congress, when enacting the offending statute, accused the company of “stealing the secrets of American companies” and serving as a front for the Chinese Communist Party. By singling out Huawei by name in the statute and accusing it of disloyalty and criminal culpability, Huawei argued, Congress imposed legislative punishment, impugning its reputation without providing any process for countering the charges made against it.

Although Disney’s lawsuit arises in a very different context than Huawei’s, the underlying allegation of legislative targeting is the same. Disney’s suit alleges that the Florida state legislature voted to dissolve the Reedy Creek Improvement District, Disney’s local governing jurisdiction, in retaliation for perceived political disloyalty. Specifically, Disney alleges that it was targeted for objecting to Florida’s Parental Rights in Education (Don’t Say Gay) law, which DeSantis supported.

Much like Huawei’s complaint, Disney alleges that DeSantis and the Florida legislature explicitly targeted it for punishment. Indeed, when the Florida bill was introduced to dissolve Reedy Creek, Disney notes, a sponsor of the bill boasted: “[T]his bill does target one company. It targets the Walt Disney Company.”

But, there is a notable difference between the suits that make the dismissal of Huawei’s claims a poor predictor of Disney’s future. The two complaints link their common underlying allegation—legislative punishment in response to perceived disloyalty—to markedly different legal theories.

Huawei’s main claim was that Congress violated the Constitution’s Bill of Attainder Clause. But Huawei did itself no favors by relying so heavily on this theory.

Despite a handful of expansive readings by the US Supreme Court over the centuries, the Bill of Attainder Clause is notoriously underenforced. Indeed, courts rarely find that that the government is “punishing” the subject of targeted legislation—a key element of a Bill of Attainder claim.

Not only did Huawei assert this dubious count in its complaint, it doubled down on this count in its briefing, where it focused on its Bill of Attainder argument almost to the exclusion of its other arguments.

By contrast, Disney has asserted a different suite of counts, some of which appear more plausible than Huawei’s Bill of Attainder theory.

In particular, Disney asserted First Amendment, Takings Clause, Due Process, and Contracts Clause counts. Although the doctrine surrounding these clauses is anything but clear-cut, cases interpreting each of these clauses have recognized the relevance of legislative targeting to their analysis.

As a result, Disney’s claims could be better vehicles for it to present its allegation about legislative targeting than was Huawei’s Bill of Attainder claim, even considering the fact that the Supreme Court has not given a warm reception to a stand-alone anti-targeting principle.

All told, Disney’s lawsuit is worth watching. Its complaint raises important legal issues that go to the heart of the relationship between the government and the individual. This basic assertion, that the government should not be permitted to target a named individual for special burdens, is intuitively appealing. And it’s a claim that the court should take seriously.

The case is Walt Disney Parks & Resorts US Inc. v. DeSantis, No. 4:23-cv-163, N.D. Fla.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Evan C. Zoldan is a professor of law and director of the Legal Institute of the Great Lakes at the University of Toledo College of Law, where he teaches and writes about legislation and administrative law.

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