Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. The situation up for debate is: Should you be able to voluntarily accept money in exchange for promising not to say bad things about someone or some company? I don't see a good faith interpretation of that as "signing yourself into slavery".
replyNobody was trying to equate non-disparagement clauses with slavery. The relevance of slavery here is as an example of the kind of contract terms that everyone should be able to agree are rightly invalid and unenforceable. Any argument in favor of contract enforceability that would apply to a slavery contract just as easily as it applies to a non-disparagement contract is a bad argument, or at least woefully incomplete. Bringing up slavery serves as a necessary reminder that the details and nuance of the contract terms and their effects need to be discussed and argued, and that an unqualified "contracts should be valid" position is untenable and oversimplified.
replyThe general principle is that you shouldn't be able to "sign away" something that's a constitutional or human right. Like the right to freely speak, the right to practice a religion, the right to be paid for work, and so on. Imagine if the severance contract specified that she had to convert to Islam in order to get her severance, or that she had to sacrifice a child. No court in the country would consider those clauses conscionable. Yet, somehow companies are allowed to gag your free speech as a condition in a contract? It makes no sense why this is allowed.
replyEveryone who has a job that requires them to speak for their employer signs away their “free speech” right to an extent. Your proposal would not lead to a tenable system.
replyThis is legalized buying people off, yes these contracts ought to be illegal and the comparison to slavery (a worse, but same category of morally reprehensible power dynamic) is completely valid
reply> Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch.
replyArguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech.
But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
Legally, your "slavery" distinction is not the same thing as agreeing not to speak a certain way about a company. Slavery implies that you can be forced to do things that you do not want to do, as it is inclusive of future decisions by the other party. Agreeing to not so some specific action, while it does bind you from future freedoms, is exclusive of any other action the party may wish you to undertake. (IANAL)
replyWe already recognize that contracts that violate one party's fundamental human rights cannot be enforced because they "shock the conscience", in terms that American jurists use. This article does not include the terms of the non-disparagement clause, or the other terms and payments, so we can't really say whether the clause is vulnerable to being ruled unenforceable by courts. But it's wrong to say that nobody can enter into contracts that constrain their speech. People do that all the time.
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replyI mean it is currently legal in most countries to do that.
replyRead about record contracts. Prince spoke extensively about his restrictive contracts.