/pdf/contracting-away-the-first-amendment-when-courts-should-35umu8msai.pdf

Contracting Away the First Amendment?: When Courts Should Intervene in Nondisclosure Agreements

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections When speech results in civil liability, two starkly opposing rules are potentially applicable Since New York Times v Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection According to Cohen v Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract The First Amendment rarely requires scrutiny when property rules limit speech Both of these rules are widely-accepted However, there is a major problem - in a large range of situations, the rules collide Tort, contract, and property law overlap significantly, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability Surprisingly, few scholars and jurists have recognized or grappled with this problem The conflict between the two rules is vividly illustrated by the law of confidentiality People routinely assume express or implied duties not to disclose another's personal information Does the First Amendment apply to these duties of confidentiality? Should it? More generally, in cases where speech results in civil liability, which rule should apply, and when? The law currently fails to provide a coherent test and rationale for when the Sullivan or Cohen rule should govern In this article, Professors Daniel J Solove and Neil M Richards contend that the existing doctrine and theories are inadequate to resolve this conflict They propose a new theory, one that focuses on the nature of the government power involved

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1511852_code249137.pdf?abstractid=1355662&mirid=1

Rethinking Free Speech and Civil Liability

At What Price Silence: Are Confidentiality Agreements Enforceable?

The recent sexual abuse scandal in the Catholic Church has put the enforceability of confidentiality agreements in settlement under the microscope. For years, the Church used confidential settlements to silence abuse victims. Although these agreements protected the identity of the victim, they also concealed the identities of the priests who often continued to serve at their parishes or other ministries. For example, in 1997, the Roman Catholic Diocese of Albany paid a confidential settlement of just under one million dollars to a man who alleged that “he had been sexually abused for six years” by a priest “who regularly plied him with drugs and alcohol.” The settlement fell just below the diocese’s one million dollar ceiling; above that amount it must seek the consent of its finance counsel, an eight-member board composed of the diocesan bishop and seven lay people, designed to provide accountability for the diocese’s decisions. Thus, the settlement was entirely insulated from any public scrutiny, allowing the abusive priest to remain anonymous and perhaps continue in his position.

/pdf/silence-at-our-expense-balancing-safety-and-secrecy-in-non-4nkh3zjzot.pdf

Contracting Away the First Amendment?: When Courts Should Intervene in Nondisclosure Agreements

References

Rethinking Free Speech and Civil Liability

At What Price Silence: Are Confidentiality Agreements Enforceable?

Silence at Our Expense: Balancing Safety and Secrecy in Non-Disclosure Agreements

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Conceptualizing Constitutional Litigation as Anti-Government Expression: A Speech-Centered Theory of Court Access