AB 3109: Waiver of right of petition or free speech

On Sept. 30, 2018, Gov. Jerry Brown signed into law Assembly Bill 3109, a law that defines and furthers the California Constitution's right to freedom of speech in the dual context of contracts and crime. Specifically, it protects victims of crimes and sexual harassment from being preemptively silenced by contract provisions. It applies to contracts entered into on or after Jan. 1, 2019.

The California Constitution protects freedom of speech, providing that every person may express opinions without censorship. Contract law permits individuals to make oral or written agreements that can be enforced in a court of law. Such agreements generally may include restrictions on speech; an individual can bargain away the right to speak on a certain topic. However, contract law also provides that contracts can be unenforceable in a court of law when they are directly or impliedly against public policy. AB 3109 functions to make contracts that limit the testimony of victims of crime and sexual harassment explicitly against public policy and, thus, unenforceable.

AB 3109 states that any provision in a contract that waives an individual's right to testify in an administrative, legislative or judicial proceeding about an alleged criminal act or alleged sexual harassment by the other party to the contract, or such other party's agent or employees, is void and unenforceable if the individual has been required or requested to attend the administrative, legislative or judicial proceeding. This law extends to all contracts, including settlement agreements and employment agreements. Note, however, the law is significantly limited by the qualification that the individual must be required or requested to attend the proceeding, as that means that the individual must be called to the proceeding by court order, subpoena or written request from the administrative agency or Legislature.

Ultimately, this bill renders non-disclosure provisions in contracts unenforceable if a party to the contract has been called by an administrative, legislative or judicial body to testify in a proceeding regarding the other party's alleged criminal conduct or sexual harassment.