Disney’s attorney argues Disney has a constitutional right “not to associate its artistic expression with Carano’s speech”.
A Disney attorney asked a federal judge in California on Tuesday to dismiss former
“The Mandalorian” actress Gina Carano’s lawsuit, arguing that her claims are barred by the First Amendment.
As a company that creates “speech products,” Disney cannot be forced under state law to “speak through” actors whose
“outside speech undermines the organization’s message,” attorney Daniel Petrocelli argues in the motion to dismiss Carano’s lawsuit.
“It is an impermissible effort to invoke state power to override a private entity’s decisions about what to say in its art and how to say it.
The complaint should be dismissed,” Petrocelli states in his motion.
Petrocelli argues that Disney has a constitutional right “not to associate its artistic expression with Carano’s speech” and that the First Amendment bars her claims.
Carano sued Disney in February with the financial backing of billionaire Elon Musk’s X Corp.,
arguing her firing violated the California Labor Code.
The lawsuit contends that Disney chose not to include the popular Cara Dune character, a bounty hunter,
in the third season of “The Mandalorian” and other potential “Star Wars” storylines due to Carano’s public statements.
In response, Disney argues that its actions are protected by the First Amendment, which
“generally forbids the government from dictating to artistic creators how they may develop and express their artistic messages.”
“This principle applies fully to enterprises that employ others to perform artistic messages through song, dance, or acting:
for such artistic expressions, the performer is the performance, no less than the words written on the script or lyric sheet,”
Disney’s motion reads.
“For this reason, just as a newspaper is entitled to broad deference in choosing which writers to employ to express its editorial positions,
a creative production enterprise is entitled to broad deference in deciding which performers to employ to express its artistic messages.”
Disney ‘Had Enough’
In the months leading up to being fired, Carano, who has been openly critical of woke ideologies and government overreach,
made a series of public statements on controversial topics beginning in September 2020.
Disney contends these statements “came to distract from and undermine Disney’s expressive efforts.”
This included Carano expressing her views on the consequences of the government’s COVID-19 pandemic response,
including lockdowns and mandates for masks and vaccines.
“The world IS open but no one is allowed to work. Working is a right you, as an American have.
It gives us purpose, focus, pride and most importantly a way to support the ones we love.
People are dropping like flies from depression and suicide, overdoses, MURDER. Enough already,”
she wrote on X, then-Twitter on Sept. 5, 2020.
In November 2020, after the elections, she publicly expressed her views on the need to “clean up the election process,”
“put laws in place that protect us against voter fraud,” “film the counting,” “flush out the fake votes,” and “require ID.”
In another post, Disney claims she was “mocking people who identify their pronouns”
online by refusing to do the same and instead stating that her pronouns are “boop/bop/beep.”
Disney also notes that she “sparred” with social media users over what Carano described as
her “refusal to endorse the [Black Lives Matter] movement.”
Disney contends it “had enough” of Carano’s public statements on controversial topics when,
on Feb. 10, 2021, she chose to allegedly “publicly trivialize the Holocaust” by reposting a third-party’s post.
The post shared on her Instagram story, read: “Jews were beaten in the streets,
not by Nazi soldiers but by their neighbours…even by children.” It included a sad face emoji.
The post continued with: “‘Because history is edited, most people today don’t realize that to get to the point
where Nazi soldiers could easily round up thousands of Jews,
the government first made their neighbours hate them simply for being Jews.
How is that any different from hating someone for their political views?’
According to Disney’s motion, “Carano’s decision to publicly trivialize the Holocaust by comparing criticism of political conservatives to
the annihilation of millions of Jewish people—notably, not ’thousands’—was the final straw for Disney.”
Lucas film denounced the statements on the same day and stated that it had “no plans” to employ her in the future.
This was followed up by Disney’s then-CEO Bob Chapek, who stated that Carano’s statements “didn’t align with company values.”
Carano’s Lawsuit
Carano’s lawsuit alleges that Disney and Lucas film targeted her for “harassment, termination,
and public defamation all because she expressed views that did not align with those of Disney and Lucas film.”
“This was at a time when several of Carano’s male co-stars posted offensive and denigrating posts
on social media directed towards Republicans and conservatives,” a February press release announcing the lawsuit reads.
The complaint alleges three counts against Disney.
Count one alleges that it violated California Labor Code provisions prohibiting employers from directing employees’ political activity.
The second count alleges Disney violated related California Labor Code provisions
that prohibit taking adverse actions against employees or “applicant[s] for employment” based on their protected activity.
The final count claims that Disney discriminated against Carano based on her sex,
theorizing that Carano is comparably situated to male actors who made very different social-media statements.
“A short time ago in a galaxy not so far away, Defendants made it clear that only one orthodoxy in thought, speech,
or action was acceptable in their empire, and that those who dared to question or
failed to fully comply would not be tolerated,” the lawsuit reads. “And so it was with Carano.”
Attorney and managing partner of Schaerr Jaffe, Gene Schaerr, said in a February statement that
“Disney bullied Carano, trying to force her to conform to their views about cultural and political issues,
and when that bullying failed, they fired her.”
“Punishing employees for their speech on political or social issues is illegal under California law,” he added.
“Carano was defamed when Defendants publicly mischaracterized her social media posts and her character,
resulting in the loss of her agent and attorney as well as future employment opportunities,” a news release by the firm reads.
In a statement on X when the lawsuit was filed, Carano said she was “hunted down” and her posts scrutinized because she didn’t go along with the prevailing narratives.
She thanked Musk’s company for offering to pay for her lawsuit, saying it “has been one of the last glimmer of hope for free speech in the works.
