Clay Calvert Provides an Analysis of Gag Clauses and the Role of the First Amendment
Clay Calvert, director of the University of Florida College of Journalism and Communications Marion B. Brechner First Amendment Project, is the author of “Gag Clauses and the Right to Gripe: The Consumer Review Fairness Act of 2016 & State Efforts to Protect Online Reviews from Contractual Censorship” published in Volume 24, Issue 2 of the Widener Law Review.
In the article, Calvert examines new legislation, including the Consumer Review Fairness Act, targeting non-disparagement clauses in consumer contracts. He states that these “gag clauses” typically prohibit or punish the posting of negative reviews of businesses on websites such as Yelp or TripAdvisor.
According to Calvert, “state and federal statues provide the best means, from a pro-free-expression perspective, of attacking such clauses, given the disturbingly real possibility that the First Amendment has no bearing on contractual obligation between private parties.”
Calvert provides a four-part analysis including the nature of disparagement causes; the relevance, or lack thereof, of the First Amendment in thwarting them; an examination of the Consumer Review Fairness Act; and, finally, how the constitutional questions regarding the First Amendment’s role are still unresolved.