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That's a ridiculous constraint to put on the freedom to enter into contracts.

by jeffbee 7mo ago

Avicebron 7mo ago
So allowing someone to sign themselves into slavery should be "legal" because it's "impinging on someone's right to enter contracts"? I get that some people balk at "morally reprehensible" as some sort of slippery slope, but c'mon we as individuals have to function somewhat coherently. As a social species reliant on some form of social cohesion (how much oil did you refine this morning?) we have to have some guidelines.
- jonahx 7mo ago
  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".
  - dragonwriter 7mo ago
    > 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. Arguably, 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.
  - wtallis 7mo ago
    Nobody 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.
    - ryandrake 7mo ago
      The 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.
      - zeroonetwothree 7mo ago
        Everyone 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.
    - bad_haircut72 7mo ago
      This 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
- jeffbee 7mo ago
  We 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.
  - deleted 7mo ago
    [deleted]
- prepend 7mo ago
  I mean it is currently legal in most countries to do that. Read about record contracts. Prince spoke extensively about his restrictive contracts.
- mathgeek 7mo ago
  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)
tuckerman 7mo ago
For arbitrary contracts I would agree, but I think increasing the limitations in severance agreements specifically makes sense. There are already certain requirements (at least in California) for severance agreements and I think limiting the duration of non-disparagement clauses to 1-2 years would be a positive change.
- zeroonetwothree 7mo ago
  I think that’s a good proposal.
mindslight 7mo ago
You're invoking a common "libertarian" trope, so I'm going to address that larger topic. Right-fundamentalist (ie axiomatic) "libertarianism" is fallacious. Logically, by asserting an unlimited "right" to contract, one can straightforwardly reframe any totalitarian state as merely being contracts between the state and its citizens/subjects/victims. And simply renaming things clearly does not make for a society that respects individual liberty! The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.
- zeroonetwothree 7mo ago
  Contracts are entered by private individuals, not by the state. So your pithy claim to instantly demolish the idea is not actually effective.
  - mindslight 7mo ago
    I don't understand your argument. Contracts can generally be entered into by private individuals as well as by legal entities like the state. If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one. (although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)
cwillu 7mo ago
This sort of ridiculous “criticism” is why I have a hard time taking libertarians seriously.
- greenchair 7mo ago
  good observation comrade!
josephcsible 7mo ago
IMO, "freedom to enter into contracts" isn't actual freedom, for the same reason that the MIT license isn't more free than the GPL despite it allowing more behaviors: in both cases, it's basically "permission to have your freedom taken away".
1qaboutecs 7mo ago
The government enforces contracts, so it gets to choose which contracts it enforces. Without a functioning judicial system (and a law enforcement system to enforce its verdicts), a contract is a piece of paper. Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
CalChris 7mo ago
Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts. This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.
mattbee 7mo ago
The law (OK, well, British law) does recognise that many terms can be Unfair especially when one of the parties is an individual, and especially when it relates to employment. They can nullify them on that basis.
Samson_Corwell 7mo ago
> That's a ridiculous constraint to put on the freedom to enter into contracts. Then it's a good thing this doesn't do that. Instead, all it would do is take away enforcement of non-disparagement clauses. That gives people more freedom. Because, contract law is just law that compels people to keep promises they make. The reason we have contract law is commitment. This is sometimes necessary to keep things flowing smoothly, but it this principle can very quickly lead to extremely intrusive government. As a consequence, we have to keep it carefully trimmed.

That's a ridiculous constraint to put on the freedom to enter into contracts.

by jeffbee 7mo ago

That's a ridiculous constraint to put on the freedom to enter into contracts.

So allowing someone to sign themselves into slavery should be "legal" because it's "impinging on someone's right to enter contracts"? I get that some people balk at "morally reprehensible" as some sort of slippery slope, but c'mon we as individuals have to function somewhat coherently. As a social species reliant on some form of social cohesion (how much oil did you refine this morning?) we have to have some guidelines.

jonahx 7mo ago
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".
- dragonwriter 7mo ago
  > 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. Arguably, 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.
- wtallis 7mo ago
  Nobody 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.
  - ryandrake 7mo ago
    The 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.
    - zeroonetwothree 7mo ago
      Everyone 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.
  - bad_haircut72 7mo ago
    This 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
jeffbee 7mo ago
We 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.
- deleted 7mo ago
  [deleted]
prepend 7mo ago
I mean it is currently legal in most countries to do that. Read about record contracts. Prince spoke extensively about his restrictive contracts.
mathgeek 7mo ago
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)

tuckerman 7mo ago

For arbitrary contracts I would agree, but I think increasing the limitations in severance agreements specifically makes sense. There are already certain requirements (at least in California) for severance agreements and I think limiting the duration of non-disparagement clauses to 1-2 years would be a positive change.

zeroonetwothree 7mo ago
I think that’s a good proposal.

mindslight 7mo ago

You're invoking a common "libertarian" trope, so I'm going to address that larger topic. Right-fundamentalist (ie axiomatic) "libertarianism" is fallacious. Logically, by asserting an unlimited "right" to contract, one can straightforwardly reframe any totalitarian state as merely being contracts between the state and its citizens/subjects/victims. And simply renaming things clearly does not make for a society that respects individual liberty! The only sensible way to approach libertarianism is to qualitatively evaluate individual liberty. And being prohibited from speaking 8 years after the fact, especially when there is a compelling public interest, is in no way equitable. If they want her continued silence, they should have to buy that on the order of year to year.

zeroonetwothree 7mo ago
Contracts are entered by private individuals, not by the state. So your pithy claim to instantly demolish the idea is not actually effective.
- mindslight 7mo ago
  I don't understand your argument. Contracts can generally be entered into by private individuals as well as by legal entities like the state. If you're making an argument that the right to contract should be unlimited between individuals (and perhaps unlimited between legal entities), but should be limited when made between individuals and artificial legal entities, that would be an interesting framing to explore. But afaik it's not really a popular one. (although I don't know that such a framework would actually invalidate what I said, especially for autocratic totalitarian states - each citizen of North Korea could just as easily be said to have a contract with Kim Jong Un himself)

cwillu 7mo ago

This sort of ridiculous “criticism” is why I have a hard time taking libertarians seriously.

greenchair 7mo ago
good observation comrade!

josephcsible 7mo ago

IMO, "freedom to enter into contracts" isn't actual freedom, for the same reason that the MIT license isn't more free than the GPL despite it allowing more behaviors: in both cases, it's basically "permission to have your freedom taken away".

1qaboutecs 7mo ago

The government enforces contracts, so it gets to choose which contracts it enforces. Without a functioning judicial system (and a law enforcement system to enforce its verdicts), a contract is a piece of paper. Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.

CalChris 7mo ago

Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts. This doesn’t limit the Feds. Also, a state can prohibit non-compete. Etc. Basically, the freedom to enter into a contract is not one of the four corndogs of freedom.

mattbee 7mo ago

The law (OK, well, British law) does recognise that many terms can be Unfair especially when one of the parties is an individual, and especially when it relates to employment. They can nullify them on that basis.

Samson_Corwell 7mo ago

> That's a ridiculous constraint to put on the freedom to enter into contracts. Then it's a good thing this doesn't do that. Instead, all it would do is take away enforcement of non-disparagement clauses. That gives people more freedom. Because, contract law is just law that compels people to keep promises they make. The reason we have contract law is commitment. This is sometimes necessary to keep things flowing smoothly, but it this principle can very quickly lead to extremely intrusive government. As a consequence, we have to keep it carefully trimmed.