In the battle between freedom of contract and freedom of speech, contract almost always wins. Recently, nondisclosure agreements (NDAs) – contracts that censor speech – have come under intense scrutiny for cloaking wrongdoing, and scholars have not entirely confronted the harm that contractually enforced silence unleashes on free expression. Prompted by the #MeToo movement, and especially the devastating success of NDAs that prohibit victims of sexual harassment and assault from speaking out, this Article argues that freedom of contract should not always trump freedom of speech. NDAs are ubiquitous in our lives and they can serve important individual and social interests. But some NDAs also conflict with cardinal free speech values. After articulating the significant threats that NDAs can present to the dominant free speech values (truth, democracy, and agency), this Article contends that courts should tap into the common law doctrine voiding contracts against public policy. Especially in the late eighteenth and early nineteenth centuries, the common law did not enforce contracts that contradicted fundamental constitutional principles. Drawing on this doctrine, the Article concludes that courts should not enforce NDAs that violate the public policy of free expression by reference to two well-known examples.
Gordon, Jeff, Silence for Sale (June 23, 2020). Alabama Law Review, volume 71, no 4, 2020, pp 1109-1184; Sydney Law School Research Paper No 20/34.