The Volokh Conspiracy

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Settlement deal: Former VA employee may not make 'negative comments to any member of Congress … or any newspapers'


(Charles Dharapak/Associated Press)

Aurore C. was a nurse at a Veterans Affairs Puget Sound hospital in Washington state; she claimed that she was discriminated against by the VA, and in January 2013, she and the VA settled their case: Aurore C. would resign, the VA would pay her $128,000, and

[Aurore C.] shall be prohibited from making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.

But two weeks ago, the Equal Employment Opportunity Commission set aside the no-negative-comments clause "as an unlawful, overly restrictive confidentiality limitation, because it expressly deprives Complainant of her ability to contact Congress and otherwise limits her First Amendment Rights to communicate with the media about any of her [employment discrimination] claims." (Aurore C. v. McDonald, decided Apr. 14, 2016.)

Now whether such agreements, entered into by the government, are constitutional is a complicated question. Private parties often do enter into various confidentiality and nondisparagement agreements, and they're generally enforceable. (See, e.g., Cohen v. Cowles Media Co. (1991).) The government is subject to First Amendment constraints, even when it's acting as contractor; and I'm inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional. Still, it's not completely clear what the rules are here.

What troubles me more, though, is the political accountability question. Whether or not such agreements violate the First Amendment, should an executive agency really be trying to restrict its former employees from complaining about the agency to Congress, or to the public at large?

Say you were on the board of directors of a company, and you learned that mid-level managers were making financial deals with ex-employees, under which the ex-employees were forbidden from "making any . . . negative comments" to you about what the managers were doing. Would you be happy about that?