Our prior decision in Leonard v. Clark is instructive. 12 F.3d 885 (9th Cir. 1993), as amended (Mar. 8, 1994). Leonard involved a collective bargaining agreement that restricted a union's ability to "specifically endorse[ ] or sponsor[ ]" legislation that would benefit the union's members.

Brentwood in this case gave up its right to engage in certain types of speech, and may not assert such a right now. See Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (affirming the district court's decision not to reach the issue of whether a labor union's free speech rights had been violated where the district court had first determined that the union waived its First Amendment protections in a collective bargaining agreement). Brentwood in short gave up its right to speak in violation of TSSAA's game rules (including its anti-recruiting rules) as consideration for access to TSSAA leagues and tournaments, and to benefit from TSSAA's enforcement of its rules against competitors.

For example, in Leonard v. Clark, the Ninth Circuit addressed a union and union members' challenge to a Collective Bargaining Agreement that arguably restricted their First Amendment rights to petition the government. 12 F.3d 885, 886 (9th Cir. 1993), as amended (Mar. 8, 1994). The court, following Supreme Court precedent, recognized that "First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent," and concluded that in negotiating the CBA the union knowingly waived any First Amendment rights that may have been implicated.

However, any such waiver must be made "voluntarily, knowingly, and intelligently." Marsh, 105 F.3d at 111; see Lake James Community Volunteer Fire Dep't, Inc. v. Burke County, 149 F.3d 277, 280 (4th Cir. 1998), cert. denied, 525 U.S. 1106, 119 S.Ct. 874, 142 L.Ed.2d 775 (1999); United States v. Local 1804-1, 44 F.3d 1091, 1098 n. 4 (2d Cir. 1995); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993); Erie Telecommunications, 853 F.2d at 1094; Sambo's Restaurants, 663 F.2d at 690. Moreover, the waiver must be established by "clear and compelling" evidence.

If that were enough, no confidentiality agreement or non-disparagement provision could ever stand. See Leonard v. Clark , 12 F.3d 885, 892 n.12 (9th Cir. 1993). Instead, the proper inquiry is how much those public policy interests are impaired, if at all, based on the applicable record.

Courts will enforce a waiver of a constitutional right unless "the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement." Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993). In an oral ruling before trial, the district court found that Theos knowingly and intelligently waived its right to make the type of reports at issue here.

” Melendres v. Arpaio, 695 F.3d 990, 999 (9th Cir. 2012) (quoting Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993)). For the reasons explained below, the Court finds that Mr. Putnam has standing, and the Court need not address whether BRA, an organization, meets the requirements for associational standing.

As Defendants did not assert that Coalition lacks standing, the court held “[t]he Coalition on Homelessness unquestionably has standing to pursue all forms of relief sought through this lawsuit.” It then denied the motion to dismiss the individual Plaintiffs for lack of standing, citing Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993), in which the Ninth Circuit held that “[t]he general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.” Coal. on Homelessness v. City & Cnty. of San Francisco, No. 22-CV-05502-DMR, 2023 WL 3637032, at *3 (N.D. Cal. May 23, 2023)

The first is whether defendants' waivers of their free speech rights by signing the contracts were "knowing, voluntary, and intelligent." See, e.g. , Leonard v. Clark , 12 F.3d 885, 889 (9th Cir. 1993), as amended (Mar. 8, 1994) ("First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent."). Defendants bear the burden of proof on this affirmative defense.

The Ninth Circuit could disagree with the Court's conclusion in light of its application of the waiver test in other civil litigation contexts. See, e.g., Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993). Plaintiff clearly takes issue with the Court's reliance on Cohen, stating multiple times it "is no longer a published case, and is therefore not controlling authority."