Normally there isn’t much inherent conflict between such agreements and the principle of free speech, since they involve adults who knowingly and willingly surrender their right to talk about certain matters without legal repercussions. But in this case, the parents accepted a gag order that applies not only to them but also to their children for apparently the rest of their lives. The terms of the agreement appear to ban not only discussing the agreement, but all discussion of fracking.
Should such an agreement be enforceable? I don’t think so, since the children didn’t understand (weren’t capable of understanding) the implications of what their parents agreed to. It could also open the family to blackmail–what if someone coerced a child into talking about fracking, recorded it, then threatened to expose the situation unless they were paid a large sum?
I can’t see that it would stand up in court, but it’s not unusual for one party in a case like this to ask for much more than they think they could get. Maybe they think there is some value in putting some fear in the kids’ minds about talking. What’s to lose (other than a good rep, which they probably don’t have anyway)?
In the same way that debts aren’t inherited, contractual obligations aren’t.
Yes, the parents can compel their minor children to silence…but once they become adults, the kids are free agents and bound only by contracts they themselves sign.
Let me be the first to point out this isn’t a First Amendment issue. The government is not telling anyone they can’t talk about fracking.
The question here is whether this is a valid contract. Can a parent, acting as a legal representative for a minor child, agree to a contract like this on the child’s behalf?
I don’t think the government has grounds to step in. I don’t see how anyone can claim that the children’s welfare is being endangered by their not being able to discuss a legal case.
The principle involved is disaffirmance - renouncing a contractual obligation on the basis that you were a minor when it was signed on your behalf. The problem is that it appears there’s a lot of grey areas on when disaffirmance is allowed.
I ain’t no legal beagle, but I’m thinking the gas company needs to get ready with a settlement and nondisclosure for each of the children when they reach 18.
In Illinois at least minors are considered wards of the court with reference to settlement of claims and no settlement contract for a minor’s claim is enforceable unless and until a judge approves it.
I suspect, however, there are many judges who would approve the nondisclosure if the settlement was otherwise fair and reasonable. Seems likely to me that it would then be enforceable, though I agree that binding kids to a gag agreement is quite different from accepting/approving a reasonable settlement on their behalf.
I personally think nondisclosures in injury cases are a terrible idea and generally advise against them. And refusing to agree to nondisclosure has never been a deal-breaker in my experience.
One common aspect I found in a quick search on disaffirmance is that it can be based on the needs of the public good. Judges sort of play a legal what-if - what would be the consequences of allowing disaffirmance and would those consequences harm the public good?
In this case, I think a judge could make a decision that disaffirmance shouldn’t be allowed in a case like this. Because if it is allowed than companies would essentially be limited in their ability to settle a case where minors were involved. A judge could rule that the public good would be more harmed by these open-ended legal cases than it would be by individuals losing the right to discuss the case.
The judge could absolutely not approve the settlement contract where a minor is involved. But the underlying principle is that the Court’s duty is to protect the best interest of the minor. So if everyone agreed and the settlement was otherwise favorable, I suspect many judges would just say OK. By the same token, if the settlement was favorable and the gag agreement was a deal breaker for the defendant, some judges might approve it even if the parents didn’t want it.
That’s not to say that openness in court proceedings isn’t also something that judges should be mindful of. But typically confidentiality isn’t litigated; the plaintiff just agrees because they want the case over, the settlement paid, and to forget the whole thing.
Obviously it’s up to the client but my advice is generally not to agree. I’ve never had a defendant back out of a settlement as a result and I think they are generally bad for everybody, especially the next person who gets hurt as a result of whatever profitable but dangerous practice may be involved.
Bear in mind, however, that if a subsequent plaintiff sent the person a subpoena to testify the judge would most likely rule that the person has to answer relevant questions despite the confidentiality agreement. So there would likely be a way around it, provided the second lawyer does a good enough investigation and finds out about the prior case; confidentiality is not the same as sealing a court file which is very rare.