If you have been reading the California Defamation Law Blog for any period of time, you would know that I enjoy dispelling common misconceptions. A common misunderstanding is that one may not waive his or her right to free speech. Even some lawyers believe this. But they are wrong. The fact is, there are many instances in which a party can contract away the right to speak in the future. For example, signing certain kinds of release or confidentiality agreements. In those cases, a party agrees not to divulge certain information in exchange for a benefit of some kind.
Likewise defendants in defamation cases may agree in a settlement agreement not to repeat certain alleged defamatory comments about the plaintiff. Many defense lawyers resist this based on the mistaken belief that this constitutes a "prior restraint." Not so. The party is merely contracting away the right to speak in advance, regarding specified statements.
I had this argument not too long ago with a Los Angeles lawyer and I should have simply directed him to the following quote from the California Supreme Court in a decision involving the anti-SLAPP statute:
Indeed, as the statute is designed and as we have construed it, 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.
It is clear, therefore, that courts recognize the waiver of one’s First Amendment rights.