Noted attorney L. Lin Wood had worked with respondents, and when that professional relationship ended, “the parties entered into a settlement agreement which contains the following non-disparagement clause”:
Non-disparagement. LLW PC and L. Lin Wood, individually, agree not to disparage WGW…. Nothing in this provision prevents the parties from providing truthful information about each other and their members in response to a court order or subpoena, or during any investigation or proceeding by a government agency. federal, state or local….
Despite this, Wood, who “has over 181,000 Twitter followers,” and his LLC “accused the respondents of criminal acts, attacked [the Appellees’] character, ethics, integrity and professionalism towards customers and the general public in multiple forums”, and “have expressed their intention to continue to do so. Rickman and Judge Christopher McFadden, in Wood vs. Wade:
The lower court considered some of the “limited number of cases nationwide that deal with the interplay between contract rights and the First Amendment.” For example, in Cohen v Cowles Media Co. (1991), the United States Supreme Court considered “whether the First Amendment bars a plaintiff from recovering damages, under state promissory estoppel, for a newspaper’s violation of a promise of confidentiality given to the plaintiff in exchange for information” and concluded that “the First Amendment does not give the press a constitutional right to disregard promises that would otherwise be enforced under state law[.]”
Similarly, citing the analysis in Cohenthe Colorado Supreme Court later held that a breach of contract action for breach of a non-disparagement clause was not prohibited by the First Amendment. Pierce c. St. Vrain Valley School Dist. RE-1J (Col. 1999). Further, in Aultcare Corp. against Roach (Ohio Ct. App. 2007), an Ohio appellate court rejected the argument that a preliminary injunction enforcing a non-disparagement provision in a settlement agreement constituted an undue restriction on free speech . Similarly, the Connecticut Supreme Court ruled that a judicial restraining order implementing a confidentiality agreement did not violate the First Amendment prohibition on prior restrictions on free speech. Perricone v. Perricone (2009).
And the Vermont Supreme Court also overturned a trial court order voiding an injunction agreed to by the parties, holding that “private parties may enter into agreements that waive their respective free speech rights, and the courts can enforce these agreements without violating the First Amendment.” Kneebinding, Inc. v. Howell (2018). The trial court concluded that these cases establish that “[p]private parties are free to enter into contracts waiving rights that the government would otherwise be bound to honour” and that enforcement of such agreements does not constitute an impermissible prior restraint….
[I]not Bryan vs. MBC Partners, LP (Ga. App. 2000), we considered a similar issue – whether an interlocutory injunction enforcing a covenant prohibiting the erection of signs without the permission of a homeowners’ association committee violates Georgia public policy in this regarding restrictions on freedom of expression. In bryan, a homeowner hung a sign in front of his house that read, “Before you buy a house here, PLEASE SEE US.” …
We noted that while an injunction “will generally not be granted to prevent the torts of libel or libel, however unlawful and scandalous the communications may be,” a person “may nevertheless waive or waive what the law has established in her favor when she does not do so”. thereby injuring others or harming the public interest. Of particular significance to the present case, we then stated: “This ancient rule applies to all private relationships in which persons may place themselves to one another and includes the waiver of constitutional rights.” Further, we emphasized, “it is the paramount public policy of this State that the courts shall not lightly interfere with the freedom of parties to contract on any subject, on any terms, unless the law or public order prohibits it, and not to harm the public interest appears clearly.”. Therefore, we concluded that the owner “was free to waive a constitutional right as well as a legal right in a matter of this kind”. We concluded that the application of the covenants therefore did not violate public policy regarding restrictions on free speech and that the superior court did not abuse its discretion in finding the interlocutory injunction to prevent the violation continuing covenants by owner….
The same reasoning applies here. Although the interlocutory injunction in bryan was based on a restrictive clause and not on a non-disparagement clause, both the owner bryan and the appellants here have pledged to abide by a waiver of constitutional rights. In bryan, the owner agreed to ban all signs except those approved by an HOA committee. In this case, the Appellants have agreed not to disparage the Appellants. The owner of bryan and the appellants here were free to waive their constitutional right to free speech….
The trial court considered the appellants’ argument that “because this litigation is pending, [they] may comment publicly and negatively on the [Appellees] in any forum, including social media, in statements to the press, and in private communications with customers and third parties “…The key preposition in the [relevant] The phrase “during” is usually defined as “for the duration of” or “at some point during”. … The plaintiffs argue that “[t]The ordinary meaning of the word “during” is temporal, i.e. while something is happening.” However, this argument focuses only on the “duration” aspect of the definition and ignores the “during” aspect. course of”. interpretation of the third sentence would vitiate the plaintiffs’ agreement not to disparage the plaintiffs. Considering all the terms of the contract together, as we must, the only reasonable interpretation of the third sentence is that a party may provide truthful information (a) in response to a court order or subpoena or (b) in connection with an investigation or proceeding of a federal, state or local government agency , or, as the trial court put it, “within the limits of an ongoing governmental investigation or proceeding.” …
The appellants argue that the injunction will harm the public interest because “it interferes with the right of the public to hear what [the] The appellants have to say concerning the trial and [the] Called. They also argue that the injunction “limits Mr. Wood’s ethical duty to provide full and complete information to his clients and potential clients who inquire about the pending lawsuit which has received considerable media attention, which necessarily includes information about the parties and their claims.”
The appellants’ implied allegation is that not being able to speak disparagingly of the respondents in the context of this trial is somehow harmful to the public interest. However, the Appellants have not developed any argument or cited any legal authority to support their suggestions that (a) the public has an interest in the Appellants’ ability to disparage the Appellants in speaking about this litigation or (b) such an interest is sufficiently substantial to outweigh the right of the respondents to obtain what they bargained for in the settlement agreement. In the absence of such authority, we see no abuse of discretion in the trial court’s weighing of these factors in favor of the respondents’ right to obtain what they bargained for, particularly at the light of public policy favoring the enforcement of contracts.
The contested injunction does not prevent the plaintiffs from making non-derogatory statements to the media. Nor does it prevent the appellants from making non-derogatory statements about the lawsuit and the respondents to their clients and potential clients. In fact, in the order granting the interlocutory injunction, the trial court explicitly indicated that the plaintiffs can “comment on the litigation, as long as they do not disparage” the plaintiffs. Consequently, the Appellants have not demonstrated that the granting of an interlocutory injunction would be contrary to the public interest….