Nevyas v. Morgan
Nondisparagement Clauses – A dissatisfied patient of Lasik surgery created a web site that charged his doctors with being at fault for leaving him legally blind. When initially threatened by the doctors with suit for defamation, the patient took down his web site while he rewrote the challenged criticism. After he restored his criticisms to the Internet, the doctors sued claiming that, by taking down his web site in order to avoid suit, the patient was implicitly agreeing not to criticize them online. Public Citizen represented the patient on appeal from an injunction issued by a Pennsylvania state court trial judge that accepted the doctor’s theory, arguing that the First Amendment required a narrow construction for agreements limiting free speech, that as construed by the trail court the agreement was contrary to public policy, and that in any event the agreement did not forbid the patient’s posting. The Court agreed with the third argument, about the construction of the agreement, and did not address the First Amendment issues.