The growing war of words between Disneyland and the state of California heated up last night when Disney released a pointed statement about their health and safety protocols aimed right at the Governor. We’ll take a look at that statement, why Disney is so mad, and the legal case Disney could make against the state to get Disneyland reopened.
Where is California on Theme Park Reopenings?
After weeks of reassuring Californians that theme park reopening guidance would be “Coming soon,” and then “Very soon,” Governor Gavin Newsom yesterday completely backpedaled and stated, “we don’t anticipate, in the immediate term, any of these larger theme parks opening until we see more stability in terms of the data.”
What precipitated the Governor’s sudden change of heart? That may fall on the heavy-handed tactics of Bob Iger and several statements from senior Disney executives about the state not moving quickly enough. After serving on the state’s task force for recovery since the early days of the pandemic, Iger dramatically stepped down last week when he found out that the state’s reopening guidance for theme parks would contain many restrictive terms that would impact Disneyland (You can read more about the state’s terms for theme park reopening HERE). The company subsequently called upon the state to delay the guidance to allow more time for negotiation. The state promptly took Disney up on the opportunity to delay.
Unfortunately, Disney may have overplayed their hand, upsetting the state government and arguing for reopening at precisely the moment the President, First Lady, and dozens of national leaders and White House staff were all diagnosed with COVID-19. If Disney had played their hand just a week or two earlier, it just might have worked.
In his press conference yesterday, the Governor further stated that he understood “… the frustration that many business leaders have that they want to move forward, sectorally, to reopen. But we’re going to be led by a health-first framework, and we’re going to be stubborn about it.”
That statement really got under the skin of Disney and they drafted the following statement for their Chief Medical Officer, Dr. Pamely Hymel:
With Newsom’s new stance that “there’s no hurry” to put out theme park reopening guidelines, where does that leave Disneyland?
The Legal Case for Disneyland to Reopen
For months, the state has been allowing more and more businesses to reopen, including restaurants (with indoor dining in the city Disneyland is located), movie theaters, hotels, zoos, aquariums, museums, and many other entertainment and hospitality offerings. And while Disneyland is really no more than a collection of all of those activities in a single package, Disneyland remains closed.
All of the businesses listed below can open, many similar to the services offered by Disney:
That unequal treatment of Disneyland compared to similar offerings has left us wondering if Disney has a potential legal claim to be made against the state. We reached out to Thomas Harvey, a partner at the law firm Coblentz Patch Duffy & Bass in San Francisco. Harvey represented a Napa winery in a similar lawsuit earlier this year. Caymus Vineyards challenged Newsom’s reopening guidelines for wineries, which permitted wineries to reopen only if they happened to serve food, while forcing those that did not to remain closed.
“Any legal action by Disney or other theme parks would challenge the constitutionality of the Governor’s guidelines,” said Harvey. He continued, “Business challenges to the lockdowns typically rely upon two provisions in the Fourteenth Amendment of the U.S. Constitution, as well as sometimes the Fifth Amendment. First, when a law attempts to treat similarly-situated businesses differently, the Fourteenth Amendment’s Equal Protection Clause requires that the law have at least a ‘rational basis’ for the different treatment. Second, the Fourteenth Amendment’s Due Process Clause prevents the enforcement of a law if it is so standardless as to invite arbitrary enforcement. The Fifth Amendment’s Takings Clause prevents private property from being taken for public use without just compensation.
In our conversation, we learned that Disney and other theme parks could make the argument that the distinctions Newsom draws in treating theme parks differently are irrational and arbitrary, and constitute an unlawful taking of private property. Other large-scale businesses that draw crowds have been allowed to open already. The state permits malls, museums, aquariums, movie theaters and zoos to operate with modifications. Allowing those businesses to operate while amusement parks bear a larger share of the public health burden and suffer greater financial loss than these other businesses, which raises questions of fundamental constitutional fairness.
Many of these reopened businesses operate entirely indoors, an activity known to pose a greater health risk than outdoor activities where natural ventilation provides additional protection against virus spread. Most theme parks in the state operate primarily in outdoor spaces. Disney and others could contend their operations, on balance, are actually safer than other businesses already open.
In a sense, a theme park is really a collection of businesses already governed by the state’s guidelines. If restaurants, family entertainment centers, movie theaters, and other businesses can open, why can’t those same offerings operate simply because of their location within a theme park? Disney and other theme parks could make the case that these kinds of distinctions are arbitrary and not rational.
Harvey further explained, “The fact that Governor Newsom’s office has failed to issue theme park guidelines at all for so long is a particularly problematic position for the state to take. The Governor created a comprehensive system establishing the reopening rules for nearly every other kind of business in California. Leaving only theme parks out of this system, and in the dark about the conditions for reopening, is hard to defend.”
It sounds to us like Disney has a legitimate legal claim to make regarding the equal application of state Coronavirus mandates. The question is will they act, or should they? We’d like to hear your thoughts on what, if anything, Disney’s next move should be.
My sincere thanks to Trip With Tykes for their invaluable help in sourcing information for this article. You never cease to amaze me.
While this is an inherently political issue, we do ask that you kindly not make personal attacks or create hostility of any sort in the comments below. Let us know what Disney has done right or wrong thus far, whether you think the state has treated Disney as fairly as similar businesses, and whether you think Disney should make a legal challenge . . . without attacking others. Let’s hear your thoughtful comments below. . .
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