- Author: Peter J. Gimino III
- Date:
- Category: Constitutional Law , Contract Law , Defamation Law , Law
A Waiver of First Amendment Rights and Anti-SLAPP Protection Made In Settlement Agreements May Be Enforceable Upon Clear and Compelling Relinquishment of Rights
It is common knowledge in society that everyone enjoys the right to free speech. It is perhaps the most well-known of constitutional rights. However, can someone elect to waive a right to free speech in order to avoid litigation? The answer is yes, if there is clear and convincing evidence of a voluntary, knowing and intelligent waiver.
As a general matter, it is well-recognized that free speech rights may be waived by contractual agreement. (ITT Telecom Products Corp. v. Dooley (1989) 214 Cal. App. 3d 307, 319 [“it is possible to waive even First Amendment free speech rights by contract.”].) In considering section 425.16, the California Supreme Court has also recognized that “a defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the right to the anti-SLAPP statute’s protection in the event he or she later breaches that contract.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 94.)
“‘First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent.’” (See Charter Communications, Inc. v. County of Santa Cruz (9th Cir. 2002) 304 F.3d 927, 935 (citation omitted) [finding that voluntary entering into an agreement requiring County approval of a franchise transfer resulted in a waiver of a claim that denial of transfer violated First Amendment rights].)
Waivers of constitutional rights will be closely scrutinized and will be found only upon a “‘clear and compelling’” relinquishment of rights. Sanchez v. County of San Bernardino (2009) 176 Cal. App. 4th 516, 528 (citations omitted).
In DaimlerChrysler Motors Co. v. Lew Williams, Inc. (2006) 142 Cal. App. 4th 344, the Court considered a waiver of a right to protest embodied in a letter agreement resulting from an “arm’s length voluntary transaction” regarding geographic limits on the reestablishment of dealerships. (Id. at 348, 353.) When litigation over a later protest ensued, the Court affirmed the denial of a motion to strike and reasoned as follows:
[the dealer] waived the very constitutional right its seeks to vindicate with this motion. The anti-SLAPP statute was enacted due to a “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances (§425.16, subd. (a).) [The dealer] waived its right to protest, then duplicitously protested. It should not be allowed to shield itself from liability under cloak of a statute designed to protect a right [the dealer] voluntarily relinquished in return for economic benefits it now holds.
(Id. at 354.)
When drafting contractual agreements, including settlement agreements, litigants should exercise care to make an express statement of any agreement to relinquish First Amendment rights to free speech. The Gimino Law Office, APC has experience handling this issue and we invite you to contact us if you believe you may have first amendment implications in your contractual agreements.
