A federal judge won't let Disney run to a federal appeals court in pursuit of a ruling that it has the constitutional right to fire actors and potentially other workers over their political views, as Disney seeks to end actor Gina Carano's lawsuit against the entertainment titan for firing her from the cast of the popular Star Wars TV series, "The Mandalorian."
U.S. District Judge Sherilyn Peace Garnett denied Disney's motion to appeal her ruling from earlier this summer, also rejecting Disney's attempt to toss Carano's lawsuit, finding that California law provides Carano and other employees with strong protections against termination and discipline over their political speech.
Whereas appeals of judgments are typically allowed by right, Disney was seeking a so-called "interlocutory appeal," in which judges allow parties to present an appeals court with a particular question of law arising from a lower court's decision or which the parties and the judge believe need to be addressed before lower courts can decide those cases.
In this instance, Disney asked the judge to ask the U.S. Ninth Circuit Court of Appeals to answer 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 views align with Disney's "values."
Judge Garnett, however, said Disney's proposed appeal doesn't present such a necessary legal question.
Disney and Carano have been at odds in court since Carano filed suit 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 that lawsuit, Carano called upon "Star Wars" storylines, likening Disney and its co-defendants Lucasfilm Ltd. and Huckleberry Industries to the iconic Imperial Death Star space station, accusing the companies of attempting to blast her career from orbit in retaliation for her political speech.
Carano has been backed in her lawsuit by billionaire Elon Musk, who pledged to lend such financial aid to anyone who lost a job for statements made on X, the social media platform formerly known as Twitter, which is owned by Musk.
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 portrayed the character of Cara Dune, a former Ranger of the Rebel Alliance, who had turned mercenary, but was persuaded by The Mandalorian to turn legitimate. 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 planned "The Mandalorian" feature film.
However, in 2020 and 2021, amid societal unrest and riots, Carano publicly expressed statements on social media and elsewhere in opposition to the support Disney had expressed for the left-wing uprising under the banner of the Black Lives Matter movement.
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 by seeking to dismiss Carano's lawsuit, portraying the legal action as a violation of Disney's First Amendment rights by forcing 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."
Garnett rejected those arguments, calling Disney's interpretation of the First Amendment in this case was dangerous, noting it would give companies like Disney wide powers to police the political views and First Amendment activities of workers.
Carano, however, said Disney's attempt to appeal was also heavily rooted in a desire to quickly shutdown the lawsuit and avoid the discovery process, in which Carano could learn more about the process that led to her termination and potentially other aspects of Disney's business.
For its part, Disney said it was also seeking the appeal in part to bring the litigation to a quick conclusion and avoid lengthy discovery on claims it believes aren't legally supported.
In her new ruling, the judge said Disney's attempted appeal isn't as clear as Disney claimed, because it would require the court to conduct a "fact-specific analysis" centered on the case, "to closely parse the allegations in Plaintiff's (Carano's) Complaint to determine whether she 'plead herself out of court.'"
Disney asserted the question centered on whether the First Amendment protects its right "to control its own casting decisions" and to terminate employees "who make widely-publicized statements that (Disney) deems offensive and harmful to its own artistic expression."
But the judge said she believed Disney's attempted appeal raised other potential questions, including:
- "Whether a court must defer ... to an expressive entity's concern that associating its art with speech it deems offensive would impair its own expression;"
- "Whether an artistic entity has the right to consider an actor's 'off-the-job political speech' when making casting decisions;"
- "Whether the First Amendment prohibits the use of state power to control private speech through equitable relief, but allows the use of state power to control private speech through monetary liability;" and
- "Whether the First Amendment protections identified in (legal precedents) apply differently in the employment context."
The judge said she believed Disney misapplied those past legal decisions and failed to identify how they actually show a disagreement among the courts that could pull the plug on Carano's lawsuit.
"In effect, Defendants (Disney) seek an opportunity to have the Ninth Circuit review whether the Court correctly concluded that Defendants' affirmative defense was not 'impenetrable,' as required to prevail on its motion to dismiss under Ninth Circuit law," the judge wrote.
And the judge rejected Disney's contention that an appeal would bring the matter to a swift and compelling conclusion, "avoiding costly, speech-chilling discovery proceedings."
In response to the ruling, Carano posted a statement to X, saying: "I am obviously very pleased with the opportunity to keep moving forward with the judicial process and into discovery.
"While I wish this was not necessary as it is not my desire to be in this battle in court. I will not shrink away from it because it is hard or uncomfortable.
"Again, a huge thanks to ALL of you who have shown me support daily, to my incredible lawyers and to Elon Musk and the people at @X for the opportunity in continuing this lawsuit and seeking justice.
"Onward."
Carano is represented in the action 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.
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.