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.

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

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.

Thus, if free speech rights can be waived in Texas, a court must find clear and convincing evidence that the waiver is knowing, voluntary and intelligent. See, e.g., Leonard v. Clark, 12 F.3d 885, 889 (9th Cir. 1993) (holding that United States Supreme Court requires clear and convincing evidence that waiver is knowing, voluntary, and intelligent). Although the Brammers signed an agreement not to "complain or disparage the building quality or practices of KB Home," KB Home presented no evidence at the temporary injunction hearing to show that when the Brammers signed the Agreement they knowingly, voluntarily, and intelligently agreed to waive the constitutional safeguards implicated by defamatory or disparaging speech.

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."

Such a waiver is valid if the surrounding facts and circumstances make it clear that it was done voluntarily, knowingly, and intelligently, with a complete understanding of the consequences of the waiver. See, e.g., Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (recognizing that the constitutional right to a jury trial in a criminal case may be waived); Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (contractual waiver of First Amendment rights). That standard is satisfied here. The waiver provision clearly applies to all liability, providing that an applicant for reappointment to the medical staff: "To the fullest extent permitted by law extends immunity to, releases from any and all liability and agrees not to sue. . . ."

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.

"The Supreme Court has held that First Amendment rights may be waived upon clear and convincing evidence that the waiver is knowing, voluntary and intelligent." Leonard v. Clark, 12 F.3d 885, 889 (9th Cir. 1993) (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185, 31 L. Ed. 2d 124, 134 (1972)). The United States Court of Appeals for the Fourth Circuit has stated that "[t]he contractual waiver of a constitutional right must be a knowing waiver, must be voluntarily given, and must not undermine the relevant public interest in order to be enforceable."

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.

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.