Because the cognovit note deprives the debtor of notice that he is being sued, and of his right to a hearing, courts demand "clear and convincing evidence" that the written waiver was "voluntary, knowing, and intelligently made." Overmyer, at 185-86, 187 (assuming without deciding that the same standard of proof applies to waiver in the civil context as in criminal cases, and citing criminal cases); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (citing Overmyer, 405 U.S. at 187; Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1394 (9th Cir.), cert. denied, 111 S.Ct. 2892 (1991)). The question of waiver is factual.

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.

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.

See Paul v. Friedman, 95 Cal. App. 4th 853, 869, 117 Cal. Rptr. 2d 82 (2002) (action for injunctive relief to enforce confidentiality agreement did not violate first amendment because defendant waived free speech rights). See also Lake James Community Volunteer Fire Dept., Inc. v. Burke, 149 F.3d 277, 278 (4th Cir. 1998) (finding valid contractual waiver of first amendment rights), cert. denied, 525 U.S. 1106, 119 S. Ct 874, 142 L Ed. 2d 775 (1999); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (same); Paragould Cablevision, Inc. v. Paragould, 930 F.2d 1310, 1315 (8th Cir.) (same), cert. denied, 502 U.S. 963, 112 S. Ct 430, 116 L. Ed. 2d 450 (1991); Forbes v. Milwaukee, United States District Court, Docket No. 05-C-591 (E.D. Wis. January 4, 2007) (same); Kovacs v. Jim, United States District Court, Docket No. 4:03-CV-33 (W.D. Mich. July 31, 2003) (same); Wilkicki v. Brady, 882 F. Sup. 1227, 1233-34 (D.R.I. 1995) (same); Pierce v. St. Vrain Valley School District, 981 P.2d 600, 603-604 (Colo. 1999) (same); Messina v. Dept. of Job Service, 341 N.W.2d 52, 61 (Iowa 1983) (same); Verizon New England, Inc. v. Public Utilities Commission, 866 A.2d 844, 849 (Me. 2005) (same); Trump v. Trump, 179 App. Div. 2d 201, 205-206, 582 N.Y.S.2d 1008 (same), appeal dismissed, 80 N.Y.2d 892, 600 N.E.2d 634, 587 N.Y.S.2d 907 (1992); Estate of Barber v. Sheriff's Dept, 161 N.C. App. 658, 664-65, 589 S.E.2d 433 (2003) (same); cf. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 184-87, 92 S. Ct. 775

But, they claim that because the information they obtained is of public interest, the preliminary injunction is an unconstitutional prior restraint. Even assuming arguendo that the matters recorded are of public interest, however, the district court did not clearly err in finding that the defendants waived any First Amendment rights to disclose that information publicly by knowingly signing the agreements with NAF. See Leonard v. Clark, 12 F.3d 885, 889 (9th Cir. 1994). Nor did the district court abuse its discretion in concluding that a balancing of the competing public interests favored preliminary enforcement of the confidentiality agreements, because one may not obtain information through fraud, promise to keep that information confidential, and then breach that promise in the name of the public interest.

Our Court has expressly recognized that "First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent." See Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) ("If the Union felt that First Amendment rights were burdened by [the contract provision], it should not have bargained them away and signed the agreement."). Our Court will not enforce a waiver "if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement."

"In reviewing the decisions of the district court, we may affirm on any basis supported by the record." Leonard v. Clark, 12 F.3d 885, 889 (9th Cir.1993). We decline to reach the preclusion and standing issues.

In Leonard v. Clark, the Ninth Circuit upheld a provision in a collective bargaining agreement limiting the First Amendment expression of a labor union. 12 F.3d 885, 892 (9th Cir. 1994).

In any event, the First Amendment is not implicated where expression is restricted by negotiated agreement in exchange for certain benefits. Cohen v. Cowles Media Co., 501 U.S. 663, 670-71 (1991); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993). In such cases, "[t]he parties themselves . . . determine the scope of their legal obligations, and any restrictions that may be placed on the publication of truthful information are self-imposed."