Document Type
Article
Publication Title
University of Colorado Law Review
Abstract
Of course, a hearer-driven challenge to both overclassification and private censorship need not be constitutional. We could beef up the Freedom of Information Act to impose enhanced scrutiny on government efforts to shield information from public view. Similarly, judges—both state and federal— could simply stop approving stipulated silencing orders, recordsealing agreements, and settlements containing gag rules. Most importantly, judges could decline to enforce NDAs as unconscionable contracts in derogation of public policy. But the success of any such nonconstitutional reform effort to deal with either or both of the First Amendment loopholes would turn on a recognition of the unacceptable impact that overclassification and private lawmaking have on the ability of nonconsenting third parties to access important information—in short, a hearer’s right to know. It would, then, be a short but important step to give nonconsenting third parties a uniform First Amendment right to challenge the enforceability of both overclassification and judicial enforcement of contracts barring the disclosure of significant information. I’ll confine this brief Symposium Essay to sketching out a hearer-centered First Amendment challenge to the ability of the powerful to use judicially enforceable contracts to buy silence.
First Page
411
Volume
90
Publication Date
2019
Recommended Citation
Burt Neuborne,
Limiting the Right to Buy Silence: A Hearer-Centered Approach,
90
University of Colorado Law Review
411
(2019).
Available at:
https://gretchen.law.nyu.edu/fac-articles/875
