The court goes too far in restraining her speach. She claims the order potentially prohibits her from speaking to her own therapist about anything that could be interperted as disparaging to her ex husband. The court disposes of the claims as too speculative. That would be a reasonable response if it was a contract issue, she can risk breaking a contract, and if the court determines she did, she is only on the hook for damages. But here, the court has issued an order prohibiting her from making disparaging remarks to "the public". The court refuses to clarify what the bounds of the order are, and she has no way to discover the bounds without risking contempt for violating the order. This is exactly why prior restraint is such a dangerous area. She is chilled from making any comment, including one that is almost certainly permissible, because the order may prohibit it, and she has no way to find out.

As to the prohibition on disclosing the results of discovery, that is fine. Even the part of the order that prohibits defaming the ex seems reasonable, defamation is a clear standard. But in prohibiting her from making any disparaging comment the order here goes too far.

Monty,

Except that I read the opinion to say that the actual injunction only provides for not going on tv or radio programs or talking to print media. The indefiniteness is related to the agreement she signed, not the injunction.

At least that is how I read it.

Who are these people and why would their domestic dispute be of interest to a national program?

Boy are my fellow Dermatologists getting more than their fair share of publicity this week. First Perricone (see above) and then yesterday, it was announced that the sperm donor of Michael Jackson's children was another Derm, Arnold Klein.

Must admit, I have never been asked by a male patient to be a sperm donor. Is that a routine request made of Law Professors?

I'm trying to envision how discovery would work if confidentiality agreements couldn't be enforced. Would each request for discovery have to be weighed against a complete violation of privacy because anything revealed in discovery could be revealed to the press? Would it all have to be reviewed in camera? I am not certain how you could reconcile discovery without confidentiality with privacy rights.

How would this affect professionals, if a doctor were disbarred for violating patient confidentiality would they be able to sue to be reinstated since the doctor's speech rights cannot be waived voluntarily? If lawyers cannot voluntarily give up their rights to speak freely about information provided to them by their clients then is then is the lawyer-client privilege supportable or could a lawyer be compelled to testify against their client?

The ramifications of a ruling the other way are pretty scary.

On reflection, some kinds of confidentiality agreements run with the secrets, so to speak, and give rise to claims against third parties to whom the secrets have been told. For example, an employment confidentiality agreement may give rise to a claim against a company hiring the employee for unfair trade practices or similar.

It would be an interesting argument to claim that when states provide a tort sufficiently broad to permit suing a broad swath of third parties to whom secrets are revealed whether or not they were parties to the original agreement, the state has made a confidentiality agreement function in a manner enough like a land-use restrictive covennant that it has effectly converted the matter from a purely private arrangement to a form of state action.