Disney is continuing to argue the First Amendment should be interpreted to allow Disney to fire actors and potentially other employees who express political views the company finds "offensive," as it seeks to appeal a federal judge's decision to allow actor Gina Carano to sue them for firing her from the cast of the popular Star Wars TV series The Mandalorian.
On Aug. 23, The Walt Disney Company filed a motion in federal court, asking a judge to allow them to file a so-called interlocutory appeal to the U.S. Ninth Circuit Court of Appeals as the company continues its battle against Carano's legal action.
Whereas traditional appeals of judgments are typically allowed by right, interlocutory appeals essentially ask appellate courts to answer questions of law arising from lower court's decisions or which parties believe need to be addressed before lower courts can decide those cases. Before filing such appeals, however, parties must secure permission from the lower court judge, who must certify the particular legal question the appellate court is being asked to answer.
In this instance, Disney is seeking to certify a question concerning whether producers of artistic works, like Disney and other film and TV studios, have the First Amendment right to make casting decisions based on how actors' expressions of their political and societal opinions align with Disney's "values."
The new filing comes as the latest move in the court action launched by Carano in 2023, accusing Disney of violating her rights by firing her from "The Mandalorian" in retaliation for her online speech expressing conservative political views.
In the complaint filed in February, Carano called upon "Star Wars" lore, likening Disney and its co-defendants Lucasfilm Ltd. and Huckleberry Industries to the iconic Imperial Death Star from numerous Star Wars films, accusing the companies of attempting to obliterate her career from orbit in retaliation for her political speech.
According to online reports, Carano's lawsuit has been aided by billionaire Elon Musk because she was terminated, in part, for statements she made on Musk's social media platform, X, formerly known as Twitter.
In the lawsuit, Carano asserts her abrupt firing from "The Mandalorian" series in February 2021 violated California's political discrimination law, which provides broad protections against employers terminating employees over their political speech.
The lawsuit also claims Disney discriminated against her on the basis of sex, because the studios did not similarly take action against Carano's male co-stars, including "The Mandalorian" lead actor Pedro Pascal and actor Mark Hammill, who portrays Luke Skywalker, both of whom have persistently expressed left-wing statements online, which, she notes, carry the potential to be as culturally divisive as a lightsaber blow to the arm.
Carano has claimed the firing cost her potentially many millions of dollars in lost income and other television and film opportunities. The characters in "The Mandalorian," for instance, appear headed to the big screen, as Disney appears to be turning the series into a feature Star Wars film, tentatively titled "The Mandalorian and Grogu."
For two seasons, Carano had portrayed the character of Cara Dune, a former Ranger of the Rebel Alliance, who had turned mercenary, but was persuaded by The Mandalorian, also known as Din Djarin, to turn legitimate once more. The series is styled as a space Western in the famous "galaxy far, far away."
Carano's character proved highly popular and marked a new high point in her acting career, who had previously been widely known as an accomplished mixed martial arts fighter.
Disney recognized the popularity of the Cara Dune character, offering Carano a starring role in a planned "Mandalorian" spinoff series, "Rangers of the New Republic." According to her lawsuit, Carano expected to be paid at least $150,000 per episode for the next six years, which would have been in line with Disney's reported pay structure for other regulars performing on series for Disney's streaming platform.
Since each series typically produces 8-10 episodes per season, Carano estimated the contract could have been worth more than $7 million. She also has said she was told her character would be included in "The Mandlorian" feature film.
However, in 2020 and 2021, amid tumultuous societal unrest and riots under the banner of the Black Lives Matter movement, Carano publicly expressed statements on social media and elsewhere in opposition to the support Disney had expressed for the left-wing uprising.
Further, Carano refused to join her name to the long list of Hollywood celebrities expressing support for LGBTQ causes, notably including the favor showered by Hollywood and American corporations on the transgender rights movement.
Carano then became the target for blowback online, where she was repeatedly called a "racist" and a "transphobic bitch" for not including pronouns in her social media biography.
Carano was also attacked online for questioning the decisions of California Gov. Gavin Newsom and President Joe Biden and other Democratic governors and officials to continue lockdown-style orders and restrictions in the name of fighting Covid-19, and particularly restrictions on churches and other religious gatherings.
Throughout the online assault, Disney did not defend Carano's right to speak. Rather, Carano says the company forced her to participate in long meetings and calls, at times with trans activists, "demanding an explanation and criticizing her for not embracing what some see as mandatory solidarity with a vocal element of the transgender activist community."
However, following the 2020 presidential election, when Carano posted an online message appearing to question the validity of Biden's victory over Donald Trump, the actor came under renewed online assault and a hashtag campaign demanding Disney fire Carano.
Within weeks, Disney and Lucasfilm announced they were terminating Carano, claiming she was “denigrating people based on their cultural and religious identities." Carano asserts that claim is false, saying "she was doing just the opposite, opposing such denigration and targeting of people just because they hold different beliefs."
Carano further claims Disney's and Lucasfilm's actions have resulted in her being blacklisted in Hollywood.
Disney responded to the lawsuit by attempting to flip the First Amendment question on its head: Arguing that Carano's lawsuit violated its First Amendment speech rights by seeking to force the company to associate with an actor in a prominent role who has expressed opinions and made statements the company finds "offensive" and not aligned with its "values."
District Judge Sherilynn Peace Garnett further noted she believed Disney's interpretation of the First Amendment in this case was dangerous, as it would greatly expand the ability of companies like Disney to police the political views and activity of workers.
In their new filing, Disney argued Garnett's interpretation of the law conflicts with those reached by other federal courts, who have allowed artistic producers to make cut loose cast members whose political and societal views have prompted negative public reactions.
Disney asserted Garnett's ruling should not be the final word in Carano's case, and should not allow Carano's lawsuit to continue, when judges on appeal may disagree.
They asserted Carano intends to target Disney with a large array of discovery requests, including demanding the company actually spell out what its "values" are and specify how Carano's political opinions and statements transgressed them.
They noted Carano is also seeking documents and records showing the extent of the support for the Democratic Party and progressive political organizations from "Disney and its officers, directors and employees."
Carano is also seeking to question "numerous high-ranking Disney officials" under oath, to scrutinize "Disney's expressive choices," which Disney characterized as "highly intrusive."
Disney asserted allowing Carano to continue with her lawsuit would "chill" Disney's speech and violate the First Amendment rights of the company and its leadership.
They said the court should send the matter to the Ninth Circuit now to address the "fundamental First Amendment questions" that underlie the case sooner rather than later, to prevent "unnecesary litigation."
The judge has not yet ruled on the request, and Carano's lawyers have not yet responded.
Disney is represented by attorneys Daniel M. Petrocelli, Molly M. Lens, Kristin MacDonnell, Jonathan D. Hacker and Josjua Revesz, of the firm of O'Melveny & Myers LLP, of Los Angeles and Washington, D.C.
Carano has been represented by attorneys Gene C. Schaerr, Donald M. Falk, Eugene Volokh and Edward H. Trent, of the firm of Schaerr Jaffe LLP, of San Francisco, Los Angeles and Washington, D.C.