No First Amendment Protection In Private Contract

A party to an online clickwrap sales agreement recently tried to avoid a non-disparagement provision in the agreement by asserting his First Amendment rights. The defendant had clicked agreement to become a sales agent for Freelife International Inc. That agreement contained a non-disparagement clause.

Freelife markets Himalayan Gogi Juice (I don’t make this stuff up). Apparently the defendant set up a Web site to discuss the Gogi juice manufacturing process. Freelife wasn’t happy about that and it brought suit to enforce the non-disparagement clause.

Among his other defenses, the defendant contended that the non-disparagement clause would infringe his ability to speak freely about the Gogi juice process, and that would offend First Amendment. He was half right. The non-disparagement clause would indeed limit his ability to speak, but it wouldn’t violate the First Amendment. Why not? Because the defendant was a party to a private contract. The First Amendment only applies to “state action.” Unfortunately for the defendant, half right doesn’t cut it.