Bill to ban terms of service that say you're not allowed to complain



That says it all.


Though it came out in July, yesterday I listened to a story that this article brought racing back to my mind. It was The New Provisions by Adam-Troy Castro, podcast by Lightspeed Magazine.

Find it here

I have a deep and abiding love of distopian fiction, but this one was so timely it verged on horror.

ETA: I forgot to add that I recommend the story and the podcast. Good stuff.

I’d also like to see a bill barring the practice of gag orders on “confidential” settlements - I suppose one could argue there’s a benefit to people being able to settle quickly if a company doesn’t have to admit wrong-doing and doesn’t have to disclose the amount of the settlement, but the negative societal impact outweighs the individual impact, IMO.


I am not a lawyer, or an American, or in fact anything other than a partially-eaten ham sandwich, but I’m curious to know if this would be constitutional.

I certainly hope so. If it’s constitutional to be able to sign away your freedom of speech, then it ought to be constitutional to ban that sort of thing.

This could get interesting. Doesn’t Oracle have a “no publishing benchmarks” clause?

On what theory do you believe this bill could be unconstitutional? I’m genuinely curious, because I can’t for the life of me figure out how this bill might infringe on corporate speech. The 1st doesn’t guarantee anyone the right from criticism.

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Did you read the line where I explained I am a ham sandwich?

I’m curious as to whether there’s a Constitutional protection to the right to enter into a contract. I’ve heard the First Amendment interpreted to mean one can enter into just about any kind of binding contract, with very specific (‘inalienable right’) exceptions.

But then, I heard it from a very libertarian potato salad, so I am skeptical.


Never trust potato salad. Especially if it’s been sitting outside the fridge for any length of time.

Not sure where in the constitution the right to enter contracts is secured, but courts have deemed many contract clauses unenforceable and/or unconscionable over the years. Also, free markets can’t be free if information is hidden from the consumer. Your potato salad acquaintance should agree with that much.


@IronEdithKidd , @DevinC … will you quit with the food analogies? It’s getting close to my supper time!

And also, Contract Law is a whole 'nother kettle of fish :wink:

I am not a sandwich (IANAS?) but the quirk of american contract law appears to be there are few to no constitutionally provided protections civilly. That doesn’t mean case law and precedent don’t define what those protections are, but you generally need someone with an specialized profession to argue on your behalf. Can’t remember what they are called, but I seem to recall they have large student loans and are generally depressed.

Anyway, if I signed a contract that states I Must Procure Black Tar Heroin from a Dude Named Gob, it will thrown out in summary judgment. On the other hand if Cory D. signed a contract to never utter Banana again, then it could be a long, expensive lawsuit.



But could he utter coin that just happened to resemble a banana?

And then just look at it?

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Do you have a Breyer opinion in mind?
Breyer wrote the dissent in AT&T Mobility v Concepcion, for instance.

Not all law is constitutional law. The Constitution only defines the US government, and its relationship to states and people and so forth. Lots and lots of law has nothing to do with the constitution, including contract law.

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you know, there were a couple of cases from 2 or three years back i had in mind but after a half hour searching through scotusblog and wikipedia i can’t find the cases i was thinking of so i’m going to withdraw the comment. if i do run across them in the next few days i’ll reply here. thanks for calling me out on that because it was really sloppy of me not to have the information at hand when i posted.

A contract can’t compel you to engage in illegal activity. If you breach the black tar clause, the person/company you signed the contract with will lose the lawsuit, and potentially face investigation by the DEA for trafficking.

@Boundegar: DevinC brought up the constitutional angle. I was merely prodding him into explaining how/where the constitution would even come into play when considering contract law and commercial code.


Isn’t it against the Terms of Service to introduce legislation to put limitations on Terms of Service?

That’s how this works, right?

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Congress cannot create laws that the constitution does not empower it to make - including laws regulating businesses and contracts. This used to be a much harder limit than it is today, though. Centuries of layered interpretations of one-sentence clauses will do that.

Also, the right to contract has few limits and is difficult for anyone not party to the contract to contest. See

Contracts are supposed to have limits - contracts with unconscionable terms or that do not represent a “meeting of the minds” are supposed to be unenforcable, but that protection has been seriously eroded by, among other things, courts accepting as valid those pre-written, take-it-or-leave-it-and-maybe-never-even-see-it-and-can’t-understand-it-if-you-did contracts between individuals and large corporations.

Commerce clause has been used to justify just about anything. They have the power.

Not disagreeing in the slightest. I just used hyperbole to point a few things out that may not be obvious to non-US readers. But it did afford me the chance to slightly poke fun at bananameme, which I couldn’t resist :).

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