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Wednesday, November 02, 2011

Sex, Lies and Confidentiality Agreements

Let's assume that one or more of Herman Cain's accusers goes public and discusses details of the sexual harassment he allegedly engaged in.  Would the First Amendment allow judicial enforcement of the confidentiality agreement?  I haven't done any research on this question except for a very quick re-read of Cohen v. Cowles Media, which seems fairly strong support for the proposition that the First Amendment wouldn't stand in the way of judicial enforcement, at least of a damages award.  Am I right on that?  Would it be different if after the first woman spoke out the NRA then went to court and sought an injunction against the other alleged victim speaking out?  (That is, is an injunction different from damages, maybe on the theory that the former is a prior restraint?)

Does the answer change if Cain is viewed as having breached the agreement already, by talking about it, as has already been discussed in the blogosphere?  Also, if somehow Cain himself isn't bound by the agreement, would judicial enforcement of the agreement as to the accuser become more problematic, as it would amount essentially to a viewpoint-based burden on speech?

Maybe there's an obvious answer from all this, from a source other than Cohen.  Or maybe Cohen provides the definitive answer.  Like I said, these are just my first impressions: they could easily be wrong on the law (or even on the facts).  Any thoughts?

Posted by Bill Araiza on November 2, 2011 at 06:20 PM in Current Affairs, First Amendment | Permalink


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Confidentiality provisions in settlement agreements typically bind the parties and their lawyers. They are perfectly enforceable.

Posted by: Doug Richmond | Nov 3, 2011 1:21:10 PM

I don't know anything about these sorts of settlement agreements. But I have to believe they are binding beyond the employer and complaining witness; otherwise the confidentiality agreement can be undermined by someone with knowledge of the agreement yet who is not bound, which just seems wrong, both as a matter of contract law and for its viewpoint discrimination.

Posted by: Howard Wasserman | Nov 3, 2011 8:45:44 AM

Was Cain, individually, a party to the agreements? Who executed the agreements on behalf of the employer?

Andrew's: "On the other hand, that would just mean that the rich and powerful would be less likely to pay extra in a settlement for a privacy agreement, which would end up hurting a lot of victims..."

raises the question of the extent of the role of the claimant's attorney in advising the client about the privacy aspect. Do employers actually pay extra for privacy? If the settlement of the basic claim may not constitute income for tax purposes, wouldn't the "extra" payment constitute taxable income to the recipient? Also consider that many of such claims are handled on a contingency basis and the claimant's attorney may be anxious to get his/her fee and "convinces" the client that the privacy provision benefits the latter. (The attorney "loses" bragging rights on the settlement because of the privacy provision, but a fee is a fee.)

Posted by: Shag from Brookline | Nov 3, 2011 6:34:34 AM

Why doesn't judicial enforcement of an agreement constitute enough state action to implicate constitutional protections? It does in other contexts, doesn't it?

I'm inclined to say that privacy agreements in matters of public interest should be held to a pretty high standard before they're enforceable. On the other hand, that would just mean that the rich and powerful would be less likely to pay extra in a settlement for a privacy agreement, which would end up hurting a lot of victims...

Posted by: Andrew MacKie-Mason | Nov 2, 2011 10:51:03 PM

My understanding is that the First Amendment should not apply because of the lack of a state actor. Shelly v. Kraemer probably would not apply in this case either. The confidentiality agreement, therefore, should hold up unless Cain agreed to keep quiet, in which case it comes down to whether or not he violated the specific terms of the agreement.

Posted by: Todd Heffner | Nov 2, 2011 9:27:50 PM

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