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

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.

"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.

Thus, as a subsequent Ninth Circuit case explained, the most significant factor was "the public interest in allowing the people to vote for representatives of their own choosing." Leonard v. Clark, 12 F.3d 885 (9th Cir. 1993) (citing Davies, 930 F.2d at 1399). However, here, while whistleblowing admittedly has the potential to serve the public, the public has no corresponding constitutional right to require that a person whistleblow.

Attorney Tumposky advised his client to accept the confidentiality clause in exchange for the Defendants agreeing to settle the case for $47,000. Plaintiff agreed to the clause and signed the Release. Having agreed to the clause, Plaintiff and Attorney Tumposky were bound to comply with it. There is no First Amendment issue. Brady v. U.S., 397 U.S. 742, 748 (1970) (voluntary waiver of constitutional rights permitted); see also, Charter Commc'n Inc. v. County of Santa Cruz, 304 F.3d 927, 935 (9th Cir. 2002) ( First Amendment protection may be bargained away); Leonard v.Clark, 12 F.3d 885, 890 (9th Cir. 1993) (party bound itself to contract burdening First Amendment protection). Attorney Tumposky next asserts that he did not violate the confidentiality clause because all of his comments concerned matters within the public domain.

" The 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." Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1994)(citing Carey v. Population Servs. Int'l, 431 U.S. 678, 682, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977)). Since the bankruptcy court correctly decided that one of the parties pursuing the surcharge claim had standing, as explained in Leonard, that " end[s] the inquiry."