Disney Cites Supreme Court’s NetChoice Decision In Fighting Gina Carano’s SLAPP Suit

Remember that SLAPP suit, financed by Elon Musk, that actor Gina Carano filed against Disney after they chose not to renew her contract for the Mandalorian? That’s the one where Carano seems to be insisting that failing to renew her contract after she made some controversial political comments is somehow a violation of her First Amendment rights.

The entire lawsuit is a joke, but the two sides have been flinging paperwork back and forth over the last few months. I’d been waiting for the judge to issue some sort of opinion on the pending motion to dismiss, but I spotted one filing by Disney last week that struck me as worth highlighting.

Disney filed a Notice of Supplemental Authority to highlight to the court some of the verbiage in the Supreme Court’s ruling last week in the NetChoice/CCIA cases, regarding whether or not Texas and Florida can pass laws mandating that social media sites must host certain types of political speech.

As Disney points out, the language in the majority opinion seems “relevant” to Disney’s arguments against Carano’s.

On July 1, 2024, the Supreme Court of the United States issued an opinion in Moody v. NetChoice, LLC, attached as Exhibit A. The First Amendment analysis in Part III of the Court’s opinion is relevant to the parties’ motion-to-dismiss arguments. In particular, the Supreme Court held:

• That “ordering a party to provide a forum for someone else’s views implicates the First Amendment” if “the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.” Op. 14.
• That “the First Amendment offers protection when an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude,” and that the challenged laws “target[] those expressive choices” by “forcing the [plaintiffs] to present and promote content on their feeds that they regard as objectionable.” Op. 17, 24.
• That none of the analysis “changes just because a compiler includes most items and excludes just a few,” and that “[i]ndeed, that kind of focused editorial choice packs a peculiarly powerful expressive punch.” Op. 18; see Op. 24 (“That those platforms happily convey the lion’s share of posts submitted to them makes no significant First Amendment difference.”

The language quoted above confirms that Disney has a right to exclude speech that alters its expressive activity, that the First Amendment protects its decision to decline to accommodate messages it would prefer to exclude, and that it does not lose its First Amendment right simply because it allowed others’ speech….

I don’t see how any of this should make any difference at all no matter what, but it’s still fascinating to see how the decision is already being cited in situations like this one.

It’s also an example of why, yes, it is important for companies to have First Amendment rights, as it should be helpful towards stopping these sorts of nonsense lawsuits.