It may look like a righteous response to DeSantis’ bigotry. But the heart of the suit is very different.

On Wednesday, Disney escalated its battle with Ron DeSantis by filing a lawsuit to attempt to stop the Florida governor’s efforts to revoke the company’s control over the district it self-governs. The lawsuit is styled as yet another noble effort in Disney’s battle with DeSantis, and specifically as a fight for freedom of speech against DeSantis’ anti-LGBTQ censorship. The complaint leans heavily on First Amendment rhetoric, but free expression is not its lead theory of the case. Rather, Disney centers a claim that Florida violated its rights under the Constitution’s contracts clause by voiding agreements that would’ve preserved its right to self-governance as its main argument for retaining the right to its land and properties.

It’s easy to see why Disney’s excellent lawyers from big law firms WilmerHale and O’Melveny are trying to frame this through the lens of free speech: Federal courts are reluctant to strike down otherwise valid laws because they might be pretext for the suppression of speech. But this case is more about contract law than free expression. And by invoking the Constitution’s contracts clause, and leaning on it so heavily, Disney is playing with fire. There is a reason this provision has sat moribund for nearly a century: Interpreted broadly, it could give courts immense power to help corporations and employers escape regulation. The federal judiciary should not be handed another open-ended invitation to halt progress at the behest of the unscrupulous and powerful—which, free speech gestures aside, is what this is.

Disney’s DeSantis saga began when the company publicly opposed a bill barring public school teachers from discussing LGBTQ people, families, and issues in class. The governor retaliated through a flurry of legislative action that has culminated in an effort to abolish Disney’s self-governance. For 55 years, the company has controlled the area in which it operates, known as the Reedy Creek Improvement District, through a board allied with Disney. As part of his feud, DeSantis signed legislation replacing the Reedy Creek board with a new commission, whose members he would appoint. Shortly before the Reedy Creek board turned over the reins, though, it executed an agreement with Disney granting the company continued authority over its properties and stripping the DeSantis commission of almost all its power. By its own terms, the agreement continues “until 21 years after the death of the last survivor of the descendants of King Charles III.”

It appears that Disney and the Reedy Creek board followed all applicable laws in drafting, publicizing, and executing this contract. They even advertised it through two public notices in the Orlando Sentinel, as required by Florida statute. The governor and his allies just missed it. But they would not accept that they were outplayed; instead, DeSantis’ new commission issued a “declaration” attempting to void the agreement. That move led Disney to file this suit in federal court.

But the company did not ask the court to simply enforce their contract as written. Instead, it accused state officials of violating the Constitution by voiding the agreement. Its primary theory is that these officials ran afoul of the contracts clause, which says that no state may pass a law “impairing the obligation of contracts.” The most recent Supreme Court case that Disney could cite to support this argument is from 1902, so understanding it requires a brief history lesson.

The contracts clause became a tool of mischief during the Lochner era, the period from the 1890s to the 1930s when the Supreme Court routinely invalidated health, safety, and economic regulations. The clause fit neatly into the court’s conception of a constitutional “liberty of contract” that sharply limited state oversight of the marketplace. During this period, for instance, SCOTUS repeatedly used the contracts clause to preserve private monopolies over the water supply, preventing local governments from constructing their own water works. It also struck down a Kansas law, enacted during a financial panic, that let mortgage-holders stay in their homes for several months after foreclosure.

During the Great Depression, both Congress and the states passed a number of laws to assist impoverished families that appeared vulnerable to legal challenges under the contracts clause. At the time, the twilight of the Lochner era, the court regularly struck down regulations designed to protect working people, like minimum wage requirements. So it was an ominous sign when the Supreme Court took up a challenge to a Minnesota law enacted in response to the Depression. The statute gave residents who defaulted on their mortgage two extra years to reclaim their homes after foreclosure.

Surprisingly, in 1934, the Supreme Court upheld the law by a 5–4 vote, announcing a new rule that states could alter contracts so long as they did so in a “reasonable and appropriate” way. Ever since, the contracts clause has largely sat dormant, subsumed to modern society’s greater interest in sensible regulation. Most recently, in 2018, the Supreme Court passed up an opportunity to revive the clause.

Just five years later, the Supreme Court looks very different—far more eager to turbocharge constitutional provisions with radical new readings that curb governments’ power to protect their citizens. Plaintiffs have taken note. During the pandemic, landlords, developers, and real estate associations flooded the courts with lawsuits claiming that various COVID-19 orders — especially eviction moratoria, rent stabilization laws, and wage increases—violated the contracts clause. Anti-vaxxers also urged the courts to wield the contracts clause against vaccine mandates. The vast majority of these claims failed. But some conservative judges leveraged eviction restrictions to resuscitate Lochner-era ideas about “freedom of contract.”

Disney has no good reason to join this game. By all appearances, the company executed a valid contract with the Reedy Creek board, adhering to every procedural rule in the book. If DeSantis’ hand-picked commission won’t honor it, Disney can ask a court to enforce its terms as written—it doesn’t need to go this route to preserve its autonomy. It can also pursue its First Amendment claim by building a case that the governor’s allies retaliated against its protected expression. There is no need to open Pandora’s box by launching an assault on states’ broader power to modify contracts. The Supreme Court’s conservative supermajority has given itself enough reasons to bring back the deregulatory zeal of the Lochner era.

Disney should not hand it another one. The consequences could be severe given the legal climate; the contracts clause cases just keep on coming. Hotels cite the clause to battle severance pay for workers and rehire of laid-off employees. Delivery apps used it to combat caps on the amount of “commission” cash they can extract from restaurants. Corporations deployed it to fight data privacy laws. Police unions have seized upon it to hobble disciplinary procedures and conceal records of misconduct from the public.

These arguments have not yet carried the day in court. But plaintiffs keep raising them, because it is impossible to know how far SCOTUS will go to implement conservative policies from the bench. That’s why far-right anti-government groups like the New Civil Liberties Alliance encouraged the Supreme Court to use the COVID eviction cases to “reinvigorate” the clause: They sense an opportunity to restore it as a cudgel against progressive regulation. It would be a sadly ironic victory if the House of Mouse’s enlightened quest for justice empowered the courts to resurrect this dangerous zombie legal doctrine.