Disney Uses First Amendment ‘Right Not To Associate’ In Motion to Dismiss Mandalorian Lawsuit

Background

Disney hired Gina Carano as a guest actor in the first two seasons of “The Mandalorian,” a Star Wars universe TV show. Shortly after “The Mandalorian’s” first season aired in November 2019, Carano began to post a series of controversial political social media posts. As her character gained popularity, Carano continued publicizing her controversial views on social media: she strongly objected to COVID-19 restrictions and vaccines, questioned the legitimacy of the 2020 election, and openly mocked transgender people. In February 2021, Carano posted on social media, drawing an analogy between the treatment of modern-day conservatives and the persecution of Jews in Nazi Germany. Disney fired her the same day, calling her comments “abhorrent and unacceptable.”

Two years later, Carano filed suit against Disney in the Central District of California, alleging, among other things, wrongful discharge and violations of California labor laws prohibiting employers from taking adverse employment actions based on an employee’s political activity. Carano also alleged that Disney discriminated against her because it appeared not to have disciplined her co-stars, Pedro Pascal and Mark Hamill, for their respective social media posts likening Donald Trump and his supporters to Nazis.

Disney’s Motion to Dismiss

In April 2024, Disney moved to dismiss Carano’s claims, arguing that the First Amendment affords it “a constitutional right not to associate its artistic expression with Carano’s speech.” Disney argued that 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 through whom to say it. This same principle, Disney asserted, establishes that the state cannot force an employer engaged in expressive activity to speak through writers, actors, or others who, in the employer’s view, would impair the employer’s ability to convey its chosen message.

Disney supported its argument with two US Supreme Court precedents. The first, Hurley v. Irish American Gay, Lesbian, and Bisexual Grp. of Boston, 515 U.S. 557 (1995), recognized a First Amendment right of speaker’s autonomy, holding that a parade organizer had the right to exclude from the parade a group seeking to “impart [] a message the organizers do not wish to convey.” The second, Boy Scouts of America v. Dale, 530 U.S. 640 (2000), held that entities engaged in expression have a First Amendment right to select the employees who would communicate that expression — even where those employment choices would otherwise violate state anti-discrimination laws. Those First Amendment principles apply even more strongly, Disney reasoned, to organizations engaged in artistic expression such as Disney.

In Disney’s view, it was irrelevant that Carano expressed herself through her own social media account as opposed to through a medium provided by Disney because Carano had become widely recognized as a popular character on “The Mandalorian” and her “mere presence at work” would interfere with Disney’s preferred messaging. Nor were the actions of Carano’s co-stars relevant because those actors “aired different views on different issues, did not engage with anonymous [social media] accounts, and did not send multiple controversial posts in a compressed timespan.”

Instead, Disney argued, the First Amendment right of speaker’s autonomy gives Disney the right to decide for itself precisely what messages to convey to audiences through its creative programs and the actors it selects to perform them, including the right to determine whether a given performer would detract from its ability to convey its own chosen message.

Takeaways

Disney’s argument, if successful, would be a powerful tool for media companies to protect their reputations. This is especially so at a time when online rhetoric is increasingly divisive and inflammatory. Although Disney focused on the speaker’s autonomy right for organizations engaged in artistic expression, other organizations may attempt to characterize themselves as employers that “speak” or employers engaged in “creating speech products” in order to avail themselves of a speaker’s autonomy defense.

Expanding the speaker’s autonomy right to reach public figures in the media and entertainment industry may also increase risk for talent. If actors and other public figures can be fired for their online rhetoric, regardless of state labor law protections, they may be less likely to engage in speech — especially political speech or speech that runs counter to their employers’ messages.