Legal analyst Andrew Esquire, who hosts the Legal Mindset YouTube channel, shared his opinion on The Walt Disney Company’s motion to dismiss Gina Carano’s lawsuit.
Andrew Esquire via Legal Mindset YouTube
Disney filed their motion to dismiss on April 9th and claimed, “Disney makes this motion on the grounds that Disney has a constitutional right not to associate its artistic expression with Carano’s speech, such that the First Amendment provides a complete defense of Carano’s claims.”
It also states, “Carano’s claims are all barred by the First Amendment. As the Supreme Court held in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), the First Amendment embodies a core principle of ‘speaker’s autonomy’ that bars the state from dictating to expressive enterprises what to say, how to say it, and whom to say it through.”
It continues, “As the Court further held in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), that principle means that a state cannot force an employer engaged in speech to speak through an employee whose own views or public profile could compromise the employer’s own message, even if the employee does not express her views on the job.”
Cara Dune (Gina Carano) in Lucasfilm’s THE MANDALORIAN.
Finally, the motion asserts, “What state law cannot do, however, is force entities that do create speech products to speak through writers or singers or actors whose own speech and public profile could, in the employer’s view, compromise the employer’s ability to express itself in its own chosen manner. Carano’s suit contravenes that rule.”
“It is an impermissible effort to invoke state power to override a private entity’s decisions about what to say in its own art and how to say it. The complaint should be dismissed,” Disney concludes.
(L_R): Fennec Shand (Ming-Na Wen) and Cara Dune (Gina Carano) in Lucasfilm’s THE MANDALORIAN, season two, exclusively on Disney+. ©.
Esquire reacted to this motion stating, “The Walt Disney Company is setting up for another huge fail when it comes to the First Amendment in trying to dismiss the Gina Carano case.”
READ: Gina Carano Says Pedro Pascal And Carl Weathers “Did Not Believe What Happened To Me Was Correct”
He elaborated, “This is a very interesting case. This is a case that it’s shocking that Disney is going with the same failed argument that they tried before. Now, why do I say this is the same failed argument? Well we know that Disney has just settled its case in Florida and actually admitted to illegal wrongdoings in that case saying that what it did in Florida was indeed illegal, that it was wrong, that there was no First Amendment basis for any of its claims, that the whole First Amendment argument, the whole we had the right to say something, it’s completely bunk in that case.”
“Well now in a shocking motion to dismiss filed in the separate Gina Carano case in federal court they are saying that her claims are barred because they have a First Amendment right to not associate with her, to disassociate from her because her artistic expression, her words were harmful to the Disney brand. So they’re going to want to disassociate with that. Well the funny thing there is: nothing about that defeats any of the claims of a nature of sexual preference or sexual bias, right, based on the fact that Gina Carano, a woman, was fired and Pedro Pascal and several other men were not fired for saying the exact same things, for using, in fact, more abhorrent language and in some cases making very, very, very offensive jokes of the exact precise same nature and not being fired for it.”
(L-R): Bo-Katan Kryze (Katee Sackhoff), Cara Dune (Gina Carano), Fennec Shand (Ming-Na Wen) and Koska Reeves (Mercedes Varnado) in Lucasfilm’s THE MANDALORIAN, season two, exclusively on Disney+. © 2020 Lucasfilm Ltd. & ™. All Rights Reserved.
Esquire then stated, “So they they filed a motion to dismiss which really doesn’t address the merits of the claim or really prove that it is a meritless claim. Remember, a motion to dismiss is supposed to prove that they lack merits completely, that there’s zero merit, zero substance to the case, to the Gina Carano case. And what we see here is in fact that well that’s not addressing whether or not these claims of preference are actually merited one way or another.”
“It also doesn’t address any of the labor laws because these are brought under very specific labor laws which have absolutely nothing to do with what Disney is claiming,” he shared. “This isn’t about punishing Disney’s speech, right. So Disney, once again, using this First Amendment defense is very weird because it’s not about them. It’s about the firing of an employee and firing of an employee for their political views, which of course in California is illegal. And by the way it’s illegal whether they are left-wing or right-wing views. It doesn’t matter. It is apolitical.”
Esquire elaborated, “If you are firing somebody in California under California labor law whether they are on the left or on the right it doesn’t matter, you cannot fire them purely for the basis of those political views. That’s California law. That’s under their labor laws, and that is at the core of the Gina Carano case, which this motion to dismiss completely fails to address.”
Gina Carano is Cara Dune and Carl Weathers is Greef Karga in Lucasfilm’s THE MANDALORIAN, season two, exclusively on Disney+. © 2020 Lucasfilm Ltd. & ™. All Rights Reserved.
Next, Esquire predicted, “Therefore, my prediction here is that this motion of dismiss will actually fail and this will indeed proceed to summary judgment. And more importantly to discovery which has always been the goal and the huge win for Gina Carano, particularly with funding from Elon Musk to get Discovery into Disney, to get emails, to get phone calls, text messages, meeting notes, all sorts of fun stuff about the discriminatory intent that lies behind Disney’s actions.
He concluded, “Particularly, they’re looking at people’s political beliefs in deciding whether to fire somebody or not fire somebody on those basis which would be the core of Gina’s complaint .So we’ll see how it goes here but my prediction is the motion to dismiss will indeed be denied.”
Gina Carano is Cara Dune and Carl Weathers is Greef Karga in Lucasfilm’s THE MANDALORIAN, season two, exclusively on Disney+. © 2020 Lucasfilm Ltd. & ™. All Rights Reserved.
Previously, Esquire accurately predicted that The Walt Disney Company’s lawsuit against Ron DeSantis and Florida official would be thrown out to due to lack of standing.
During an appearance on the WDW Pro channel Esquire said in June 2023, “For Disney, the nightmare scenario, the worst possible scenario, which is a likely scenario, I don’t want to give exact probabilities, but it’s something that could very much probabilistically happen is the federal case gets entirely dismissed. It gets entirely thrown out. There’s multiple reasons. The reason cited, one of the main reasons which I have said from the beginning on this which is Disney does not truly have standing. They do not meet the elements for standing. Standing means the ability to bring a claim to court.”
“This is exactly the reason that the citizens who actually sued the state of Florida for these legislative changes way back earlier this year, they were thrown out for standing. Disney also can be thrown out for much similar grounds,” he explained.
“So they’re very likely to be tossed out if not entirely almost all of the counts,” he shared. “So perhaps four of the counts might get tossed. You might have one remaining count there in federal court.”
Judge Allen Winsor dismissed the suit due to a lack of standing. In a 17-page document Winsor wrote, “The clerk will enter a judgment that says, ‘This case was resolved on motions to dismiss. Plaintiff’s claims against the Governor and the Department Secretary are dismissed without prejudice for lack of subject matter jurisdiction. Plaintiff’s claims against the Central Florida Tourism Oversight District board members are dismissed on the merits for failure to state a claim.”
Judge Winsor specifically addressed the First Amendment claim writing, “‘As a general matter, the First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.’ But it is settled law 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 permissible purpose.’ The Eleventh Circuit has ‘held that many times.’ And this settled law forecloses Disney’s claim.”
He also noted, “In short, Disney lacks standing to sue the Governor or the Secretary, and its claims against the CFTOD Defendants fail on the merits because 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.”
Mickey Mouse in The Prince and the Pauper (1990), Walt Disney Animation
What do you make of Esquire’s analysis and prediction?
