We have discussed the increasing use by companies of non-disparagement clauses in take-it-or-leave-it consumer contracts, where the consumer "agrees" not to say anything critical of a company from which it buys something Go, for instance, here, discussing the use of these clauses in mortgage loan-modification contracts.
And we have discussed repeatedly (go, for instance, here and here) the Kleargear litigation, about the efforts of an online seller actually to use a non-disparagment clause against a consumer who had criticized the seller. The consumer fought back and recently won a default judgment against Kleargear. Now, as reported in this article by Martin Griffith, Kleargear's parent company says it will contest the default judgment. In Griffith's article, a Kleargear spokesperson is quoted as saying that "business transactions are exempt from First Amendment rights … If a customer disagrees with any merchant … policies, they are free to shop elsewhere."
