This “non-disparagement clause,” is not in violation of the First Amendment of the Constitution, which says nothing about the actions of individuals or corporations. Why don't people ever actually read the First Amendment ? It's what, three sentences long?
Aside from that, death to the trolls!
If they’re relying on the government to enforce the clause it could be argued that it is a First Amendment violation, since the government is assisting in restricting speech. It does sound like a stretch to me, but I think the tactic is to throw a lot of shit at the wall and see what sticks. IANAL.
It's not a stretch - that's the argument. Because the civil suit chills speech which serves the public interest, a constitutional privilege is implicated.
Not only can it be argued, that is the basic argument that has been deployed in similar situations. For example. race-restrictive covenants that forbade property owners from selling to blacks and other minorities are private agreements, but courts have refused to enforce them on the basis that the enforcement itself is state action.
On the other hand, Kleargear doesn't appear to have used the judicial system to enforce their claims, so the situation is more complex. The individuals could probably get the court to say that enforcement of the clause is unconstitutional, but I'm not sure that's what they're looking for.
Well, the simple fact that Kleargear did not use any legal recourse to enforce their claim indicates their own unsureness about the legality of their claim. See also their laughable attempt to claim that they were extraterritorial and untouchable, neener neener (I'm paraphrasing). It was simple bluffing and intimidation; and now they are getting spanked for it.
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