Opinion

ROGERS, C. J.

This appeal arises from a postdissolution proceeding to enforce a confidentiality agreement between the defendant, Madeleine Perricone, and the plaintiff, Nicholas Perricone. The defendant appeals from the order of the trial court enforcing the confidentiality agreement and restraining her from disseminating any information pertaining to her divorce from the plaintiff or any derogatory or defamatory information about the parties. The defendant claims that: (1) the parties' separation agreement was fully integrated and, therefore, it nullified the confidentiality agreement; (2) even if the confidentiality agreement was not nullified, the trial court's order constitutes an unconstitutional prior restraint on her freedom of speech in violation of the first amendment to the United States constitution; (3) even if the order does not violate the first amendment, it violates article first, §§ 4 and 5, of the constitution of Connecticut; (4) the confidentiality agreement is void as violating public policy; and (5) the confidentiality agreement is void for indefiniteness. We affirm the judgment of the trial court.

The trial court found the following facts. The plaintiff brought the underlying action to dissolve his marriage to the defendant in September, 2003. In November, 2003, the parties entered into a confidentiality agreement pertaining to the production of discovery material and dissemination "of any information related to this litigation or . . . obtained during pretrial discovery. . . ." The confidentiality agreement provided that both parties "fully understand that the plaintiff and his business interests may be severely harmed by the public dissemination of defamatory or disparaging information related to the parties. Accordingly, neither [of] the parties . . . shall disseminate or cause to be disseminated to the public and the press any such disparaging or defamatory information." The confidentiality agreement further provided that "[t]he terms of this [a]greement shall survive the entry of judgment in the dissolution of marriage action or the settlement or withdrawal of the dissolution action." The trial court, Kenefick, J., approved the confidentiality agreement and made it an order of the court.

When the parties' marriage was dissolved in September, 2004, the judgment of dissolution incorporated the parties' written separation agreement, which provided that "it is the intention and desire of the parties that there be a complete, final and effective settlement of their respective rights and holdings, and that provision be made for the support of the [defendant] and minor children, custody and visitation of the minor children, as well as relinquishment of all rights, interest and claims, which one party might have upon the property of the other. . . ." It further provided that "[t]he [plaintiff] and [the defendant] have incorporated in this [a]greement their entire understanding and no oral statement or prior written matter extrinsic to this [a]greement shall have any force or effect. . . . This [a]greement supersedes any and all prior agreements between the [plaintiff] and [the defendant]."

On December 1, 2005, the plaintiff filed a motion for a restraining order alleging that he had received information that the defendant was planning to appear on a nationally broadcast television program to discuss the plaintiff, their marriage and a pending custody matter. The plaintiff sought an order prohibiting the defendant from disseminating any information about the plaintiff or the dissolution proceeding to any person. The plaintiff also requested an ex parte restraining order pending a hearing on the motion. The trial court, Dewey, J., granted the ex parte restraining order and ordered a hearing the following day. That hearing was postponed due to unforeseen circumstances and the trial court, Frazzini, J., ultimately conducted a hearing on December 5 and December 7, 2005.

Thereafter, the trial court issued its memorandum of decision in which it concluded that the separation agreement did not supersede and nullify the confidentiality agreement because the separation agreement and the confidentiality agreement "covered two distinct areas of the parties' rights and interests." The court stated that "[n]othing in the separation agreement shows any intent on the part of the parties to address the subjects governed by the confidentiality agreement." The court also concluded that, even if the separation agreement nullified the confidentiality agreement, it could not nullify the court order embodying the confidentiality agreement. Rather, that order could be nullified only by another court order. The court rejected the defendant's argument that its enforcement of the confidentiality agreement would violate her first amendment right to free speech because she had cited no authority for the proposition that "parties may not waive their constitutional rights and agree to impose on themselves certain restrictions of those rights or that a court may not enter an order adopting those restrictions." Accordingly, the court ordered the defendant to cease and desist from "disseminating to the media or to any person, other than to her counsel in this litigation or to others duly authorized by the [c]onfidentiality [a]greement, the protective order, or further court order (i) any information pertaining to the dissolution action between the parties or to post-judgment proceedings between them, (ii) any `discovery material' or `confidential discovery material,' as those terms are defined in the confidentiality agreement and protective order of November 3, 2003, or (iii) any derogatory or defamatory information about the parties. . . ." The court further ordered the defendant to cease and desist "[f]rom appearing on radio or television for such purposes." This appeal followed.

I

We first address the defendant's claim that the trial court improperly determined that the separation agreement did not supersede and nullify the confidentiality agreement. The defendant contends that because the separation agreement was a completely integrated agreement, it nullified all prior agreements between the parties related to the dissolution action. She further contends that the confidentiality agreement was not enforceable as a collateral agreement outside the scope of the separation agreement because the separation agreement addressed the same subject matter as the confidentiality agreement. The plaintiff concedes that the separation agreement is an integrated agreement, but contends that the confidentiality agreement was not affected by the separation agreement because the subject matter of the confidentiality agreement was separate and distinct from the subject matter of the separation agreement, and the confidentiality agreement did not contradict the separation agreement or vary its terms. We agree with the plaintiff.

The parties agree as to the legal standard to be applied in determining whether a collateral agreement is outside the scope of an integrated agreement, but disagree as to whether the confidentiality agreement met that standard. Specifically, they disagree as to whether the confidentiality agreement addressed the same subject matter as the separation agreement. This is a question of fact involving the intent of the parties that is subject to reversal only if the trial court's finding was clearly erroneous. See Levine v. Massey, 232 Conn. 272, 290, 654 A.2d 737 (1995).

"[W]hen the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing." (Internal quotation marks omitted.) Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., 252 Conn. 479, 502, 746 A.2d 1277 (2000). Under this rule, "the unambiguous terms of a written contract containing a merger clause may not be varied or contradicted by extrinsic evidence." Id., 503.

There are, however, several exceptions to this rule. Specifically, evidence extrinsic to an integrated contract may be introduced: "(1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud. . . . These recognized exceptions are, of course, only examples of situations where the evidence (1) does not vary or contradict the contract's terms, or (2) may be considered because the contract has been shown not to be integrated; or (3) tends to show that the contract should be defeated or altered on the equitable ground that relief can be had against any deed or contract in writing founded in mistake or fraud." (Internal quotation marks omitted.) Palozie v. Palozie, 283 Conn. 538, 548 n. 8, 927 A.2d 903 (2007); see also Tallmadge Bros., Inc. v. Iroquois Gas Transmission System, L.P., supra, 252 Conn. 503 n. 14 (proof of integrated agreement does not bar proof of collateral oral agreement that does not vary terms of writing); 2 Restatement (Second), Contracts § 213 (2), p. 129 (1981) ("[a] binding completely integrated agreement discharges prior agreements to the extent that they are within its scope"); 2 Restatement (Second), supra, § 213, comment (c), p. 130 ("[w]here the parties have adopted a writing as a complete and exclusive statement of the terms of the agreement . . . there may still be a separate agreement between the same parties which is not affected" [citation omitted]); 2 E. Farnsworth, Contracts (2004) § 7.3, p. 235 ("[t]he fact that an agreement is completely integrated does not, of course, affect an attempt to show an entirely separate and distinct agreement between the same parties").

In Shelton Yacht Cabana Club, Inc. v. Suto, 150 Conn. 251, 258, 188 A.2d 493 (1963), this court stated that, in determining whether a matter falls within the collateral agreement exception, the court must consider "the inherent probability that parties contracting under such circumstances would or would not make the [integrated] agreement in writing and also the alleged [collateral] agreement. . . . In deciding upon this intent, the chief and most satisfactory index for the judge is found in the circumstance whether or not the particular element of the alleged extrinsic [agreement] is dealt with at all in the [integrated] writing. If it is mentioned, covered, or dealt within [that] writing, then presumably the writing was meant to represent all of the transactions on that element; if it is not, then probably the writing was not intended to embody that element of the negotiation." (Citations omitted; internal quotation marks omitted.) See also State Finance Corp. v. Ballestrini, 111 Conn. 544, 547-48, 150 A. 700 (1930); Connecticut Savings Bank v. Central Builders' Supply Co., 4 Conn. App. 332, 334-35, 494 A2d 601, cert. denied, 197 Conn. 805, 499 A.2d 56 (1985).

In the present case, the defendant claims that the confidentiality agreement came within the scope of the separation agreement because the confidentiality agreement "dealt with . . . information to which the defendant was entitled . . . so that her forensic expert could value the plaintiff's business [which was] key to the ultimate resolution of the property settlement . . . contained in the separation agreement." As the defendant implicitly acknowledges, however, the relevant subject matter of the separation agreement was the division of property between the parties, while the subject matter of the confidentiality agreement was the disclosure of information concerning the parties' property and the parties themselves. The scope of the restrictions on the disclosure of information concerning the parties or their property was not "mentioned, covered, or dealt with" in the separation agreement. (Internal quotation marks omitted.) Shelton Yacht Cabana Club, Inc. v. Suto, supra, 150 Conn. 258.

Moreover, the trial court reasonably could have found that it is highly improbable that the parties intended that, upon the division of the marital property, the confidentiality agreement would be invalid, thereby exposing the plaintiff's business immediately to the harm that the agreement was intended to prevent. It is far more likely that the defendant agreed to keep information concerning the plaintiff and his business confidential permanently in exchange for a property settlement that reflected the full value of the business, unaffected by any disclosures of negative or confidential information, and the plaintiff agreed to a property settlement based on that value in exchange for the defendant's perpetual silence. We can perceive no reason why the plaintiff would agree to a property settlement based on the full, unaffected value of his business with the expectation that the defendant would be free to disclose information that could reduce its value immediately upon executing the property settlement. Indeed, the confidentiality agreement expressly provided that it would "survive the entry of judgment in the dissolution of marriage action. . . ." We conclude, therefore, that the trial court properly determined that the confidentiality agreement was outside the scope of the separation agreement and was not affected by it.

II

We next address the defendant's claim that the trial court's order enforcing the provisions of the confidentiality agreement prohibiting her from disseminating information about the plaintiff, her marriage to the plaintiff or the dissolution and postdissolution proceedings constituted a prior restraint on her free speech in violation of the first amendment to the United States constitution. The plaintiff counters that the defendant waived her free speech rights when she executed the confidentiality agreement. In turn, the defendant contends that: (1) a waiver of the first amendment's prohibition on prior restraints on speech cannot be enforced constitutionally unless it is narrowly tailored to advance a compelling state interest, and the confidentiality agreement does not satisfy that requirement; and (2) even if a waiver of first amendment rights generally can be enforced, she did not waive her first amendment rights. We conclude that the defendant validly waived her first amendment rights.

A

Whether a waiver of the first amendment's prohibition on prior restraints on speech constitutionally can be enforced is a question of law over which we exercise plenary review. See Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, 285 Conn. 381, 398 n. 11, 941 A.2d 868 (2008) (scope of constitutional right is question of law).

The first step in our analysis is to address the threshold question of whether judicial enforcement of a private confidentiality agreement constitutes state action, thereby triggering first amendment protections. See Cohen v. Cowles Media Co., 501 U.S. 663, 668, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991) (in absence of state action, first amendment protections are not implicated). Although the United States Supreme Court has not directly addressed this question, it has considered the related question of whether a court's enforcement of a confidentiality agreement by way of a private cause of action for promissory estoppel implicates the first amendment and has concluded that it does. Id., 665. The plaintiff in Cohen v. Cowles Media Co., supra, 665, had provided certain information to the defendant newspapers after receiving promises of confidentiality from their reporters. Despite the promises of confidentiality, the newspapers identified the plaintiff as the source of the information. Id., 666. The plaintiff then brought an action against the newspapers for fraudulent misrepresentation and breach of contract. Id. The plaintiff ultimately prevailed on his breach of contract claim and the defendants appealed to the Minnesota Supreme Court. Id. That court concluded that the plaintiff did not have a valid cause of action for breach of contract, but he did have a claim for promissory estoppel. Id., 666-67. The court ultimately concluded that enforcement of the defendants' promises of confidentiality would violate their first amendment rights. Id., 667.

On appeal, the United States Supreme Court noted that "the Minnesota Supreme Court held that if [the plaintiff] could recover at all, it would be on the theory of promissory estoppel, a state law doctrine which, in the absence of a contract, creates obligations never explicitly assumed by the parties"; id., 668; and concluded that "[t]hese legal obligations would be enforced through the official power of the Minnesota courts. Under our cases, that is enough to constitute `state action' for purposes of the [ first amendment, which is applicable to the states through the] [f]ourteenth [a]mendment." Id.

The United States Supreme Court then concluded that the enforcement of the defendants' promise of confidentiality did not violate the first amendment because the doctrine of promissory estoppel "is generally applicable to the daily transactions of all the citizens of Minnesota." Id., 670. The court distinguished the cases in which "the [s]tate itself defined the content of publications that would trigger liability"; id.; on the ground that "Minnesota law simply requires those making promises to keep them. The parties themselves, as in this case, determine the scope of their legal obligations, and any restrictions that may be placed on the publication of truthful information are self-imposed." Id., 671.

It is not entirely clear to us whether, for purposes of determining whether the enforcement of state law in state courts constitutes state action under the fourteenth amendment, the United States Supreme Court in Cohen intended to distinguish promissory estoppel actions from contract actions on the ground that the former involve "a state-law doctrine which . . . creates obligations never explicitly assumed by the parties." Id., 668. We need not decide that question here, however, because, even if we assume that the judicial enforcement of a confidentiality agreement between private parties constitutes state action, the United States Supreme Court held in Cohen that private parties who voluntarily enter into an agreement to restrict their own speech thereby waive their first amendment rights. See id., 671. Nothing in Cohen suggests that such an agreement is enforceable only if it is narrowly tailored to advance a compelling state interest.

In support of her claim that the judicial enforcement of such agreements is presumptively unconstitutional, the defendant in the present case cites numerous cases in which courts have concluded that contractual restrictions on speech are subject to strict scrutiny. Her reliance on these cases is misplaced, however, because none of the cases involves a voluntary agreement to restrict speech between private parties. Rather, the cases involve an employment agreement between a private party and a government entity, actions for injunctions brought by government entities, tort actions or restraining orders issued by the courts during the course of litigation without the agreement of all parties.

We recognize that Cohen involved an action for damages, and not, as in the present case, a request for a restraining order. The defendant has not cited, however, and our research has not revealed, a single case in which a court has held that a judicial restraining order that enforces an agreement restricting speech between private parties constitutes a per se violation of the first amendment's prohibition on prior restraints on speech. We conclude, therefore, that the court's reasoning in Cohen is equally applicable here. As numerous courts have recognized, when private parties — and not the government — voluntarily have defined the scope of the disclosures that would trigger sanctions, the parties cannot complain if the court merely holds them to their promises. See Cohen v. Cowles Media Co., supra, 501 U.S. 671; Erie Telecommunications, Inc. v. Erie, 853 F.2d 1084, 1099 (3d Cir. 1988) ("we know of no doctrine, and [the plaintiff] has directed us to no case law, providing a per se rule that constitutional claims, even first amendment claims, may not be waived" by agreement). Accordingly, we conclude that a party's contractual waiver of the first amendment's prohibition on prior restraints on speech constitutionally may be enforced by the courts even if the contract is not narrowly tailored to advance a compelling state interest.

B

We turn, therefore, to the defendant's claim that she did not, in fact, voluntarily and intelligently waive her first amendment rights by entering into the confidentiality agreement. The following additional facts and procedural history are relevant to our resolution of this claim. The trial court, Kenefick, J., held an evidentiary hearing on November 3, 2003, to consider the parties' request that the court make the confidentiality agreement an order of the court. During the hearing, counsel for the defendant presented the defendant with the confidentiality agreement and asked her if she had signed it and if she had discussed it with counsel. The defendant indicated that she had. When the trial court inquired whether the defendant had had enough time to review the agreement with her attorney, the defendant responded, "I would like to have more time, but I think that this is adequate, today." The trial court then asked the defendant if anyone was forcing her to enter into the agreement and she responded, "As long as there's no statement here that prejudices me against coming into court . . . in the future." The trial court then stated, "you're okay with the agreement for now," and the defendant responded, "Exactly." Counsel for the defendant then summarized the terms of the agreement, and the trial court asked the defendant if that was her understanding. She responded, "Yes."

The defendant now contends that, "[b]ecause the record does not clearly show that [she] was made aware that she had a first amendment right to free speech and that, by signing the 2003 agreement, she would be waiving that right, she cannot be said to have waived that constitutional right." The plaintiff contends that, as long as the defendant knew the substance of the restrictions that the confidentiality agreement placed on her speech and voluntarily agreed to them, there was no requirement that she be expressly informed that the confidentiality agreement limited her first amendment rights. We agree with the plaintiff.

"[A] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. An effective waiver presupposes full knowledge of the right or privilege allegedly [being] waived and some act done designedly or knowingly to relinquish it. . . . Moreover, the waiver must be accomplished with sufficient awareness of the relevant circumstances and likely consequences." (Citations omitted; internal quotation marks omitted.) State v. Santiago, 245 Conn. 301, 310-11, 715 A.2d 1 (1998).

This court has not previously considered the question of who has the burden of proving a contractual waiver of first amendment rights. In criminal cases, it is well established that the court must "indulge every reasonable presumption against waiver of fundamental constitutional rights. . . . For that reason, it is the [s]tate that has the burden of establishing a valid waiver." (Citation omitted; internal quotation marks omitted.) State v. Piorkowski, 243 Conn. 205, 230, 700 A.2d 1146 (1997). In L R Realty v. Connecticut National Bank, 246 Conn. 1, 16, 715 A.2d 748 (1998), however, this court held that, "in accordance with our public policy favoring freedom of contract and the efficient resolution of disputes . . . express commercial contractual jury trial waivers entered into prior to litigation are presumptively enforceable . . . [and] the party seeking to avoid the waiver carries the burden of proving, by a preponderance of the evidence, the lack of a clear intent to be bound by the waiver provision." (Citations omitted.)

We conclude that the public policy favoring freedom of contract and efficient resolution of disputes applies equally to contractual waivers of first amendment rights. Accordingly, we conclude that these waivers also are presumptively enforceable, and the burden of proving their invalidity is on the party seeking to avoid the waiver. "The determination of whether there has been an intelligent waiver . . . depend[s], in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the [waiving party]." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); see also Erie Telecommunications, Inc. v. Erie, supra, 853 F.2d 1095 (applying Johnson standard in case involving contractual waiver of first amendment rights).

"The standard by which the trial court determines the validity of a [contractual waiver of a constitutional right] is a question of law that is subject to de novo review. . . . Once that standard has been established, [w]hether a party has waived [a constitutional right] presents a question of fact for the trial court [and our review is limited to whether the finding was clearly erroneous]. . . . A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (Citations omitted; internal quotation marks omitted.) L R Realty v. Connecticut National Bank, supra, 246 Conn. 8-9.

As we have indicated, the United States Supreme Court in Cohen v. Cowles Media Co., supra, 501 U.S. 671, implicitly held that a person's voluntary promise to keep information confidential constitutes a valid waiver of first amendment rights, even though nothing in that case suggested that the defendants were expressly aware that their promise to keep the plaintiff's identity confidential had restricted speech rights protected by the first amendment. Numerous courts have explicitly reached the same conclusion. In Erie Telecommunications, Inc. v. Erie, supra, 853 F.2d 1096, for example, the United States Court of Appeals for the Third Circuit concluded that a party may waive first amendment rights by contract "where the parties to the contract have bargaining equality and have negotiated the terms of the contract, and where the waiving party is advised by competent counsel and has engaged in other contract negotiations." See also Leonard v. Clark, 12 F.3d 885, 889-90 (9th Cir. 1993) (waiver of first amendment rights was knowing, voluntary and intelligent when: [1] party was advised by competent counsel; [2] party proposed language that it objected to; [3] party voluntarily signed agreement; and [4] parties were of relatively equal bargaining strength); cf. D. H. Over myer Co. v. Frick Co., 405 U.S. 174, 188, 92 S. Ct. 775, 31 L. Ed. 2d 124 (1972) (in determining validity of contractual waiver of due process right to notice and hearing in advance of judgment court considers whether contract is one of adhesion, whether there is disparity in bargaining power and whether party waiving right received consideration for waiver); L R Realty v. Connecticut National Bank, supra, 246 Conn. 15 (in determining validity of contractual waiver of constitutional right to jury trial, court considers: "[2] whether there was a substantial disparity in bargaining power between the parties to the agreement; [3] whether the party seeking to avoid enforcement was represented by counsel; [4] whether the . . . party had an opportunity to negotiate the terms of the agreement; and [5] whether the . . . party had been fraudulently induced into agreeing specifically to the jury trial waiver").

We are persuaded by the weight of authority that an agreement that restricts speech, but that does not expressly refer to first amendment rights, constitutes a valid waiver of those rights, as long as the waiver was intelligent and voluntary. As these cases recognize, when an agreement clearly sets forth the restrictions on constitutionally protected speech, the talismanic recital of the words " first amendment" would not add materially to the party's understanding of the right being waived. We also conclude that, in determining whether a waiver of first amendment rights was intelligent and voluntary, the court should consider whether the parties to the contract had relative bargaining equality, whether they negotiated the terms of the contract, whether the party seeking to avoid the waiver was advised by competent counsel and the extent to which that party has benefited from the agreement. Although there is no requirement that the agreement expressly refer to first amendment rights, the court should also consider whether the contractual provision restricting speech was conspicuous. Cf. L R Realty v. Connecticut National Bank, supra, 246 Conn. 15 (in determining validity of waiver of jury trial, court should consider "[1] the conspicuousness of the waiver clause, including [a] its location relative to the signatures of the parties, [b] whether it was buried in the middle of a lengthy agreement, and [c] whether it was printed in a different typeface or font size than the remainder of the contract").

In the present case, there is no dispute that the defendant and the plaintiff had relative bargaining equality during the dissolution proceedings — they negotiated the terms of the confidentiality contract, and the defendant, who was represented by competent counsel, voluntarily signed the confidentiality agreement and significantly benefited from it. In addition, the clear and unambiguous purpose of the entire confidentiality agreement was to restrict the parties' speech. Accordingly, we conclude that the trial court properly found that the defendant intelligently and voluntarily had waived her first amendment rights.

III

We next address the defendant's claim that, even if she waived her first amendment rights by agreement, the trial court's order enforcing the confidentiality agreement violates article first, §§ 4 and 5, of the constitution of Connecticut because the rights guaranteed therein cannot be waived. We disagree.

At the outset, we set forth the standard of review. Whether the state constitution precludes a contractual waiver of constitutionally protected speech rights is a question of law over which our review is plenary. See Cambodian Buddhist Society of Connecticut, Inc. v. Planning Zoning Commission, supra, 285 Conn. 398 n. 11.

"It is well established that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights. . . . Furthermore, although we often rely on the United States Supreme Court's interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut, we have also recognized that, in some instances, our state constitution provides protections beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court. . . . The analytical framework by which we determine whether, in any given instance, our state constitution affords broader protection to our citizens than the federal constitutional minimum is well settled. In State v. Geisler, [ 222 Conn. 672, 684-86, 610 A.2d 1225 (1992)], we enumerated the following six factors to be considered in determining that issue: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies." (Citations omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 560-61, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).

We address each consideration in turn. With regard to relevant federal precedents, we conclude that they militate against the defendant's position. As we explained in part II of this opinion, the great weight of federal authority supports the conclusion that first amendment rights may be waived by contract. Indeed, the defendant has not cited a single case that directly supports her claim to the contrary.

With regard to the text of the operative constitutional provisions, we conclude that this factor is neutral. We recognize that this court previously has held that fewer restrictions on speech are permitted under article first, §§ 4 and 5, of the constitution of Connecticut than are permitted under the first amendment. See State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995). Specifically, we concluded in Linares that the state constitution protects some forms of speech on government property that would not be protected under the federal forum based approach to such speech. Id., 377-86. The fact that our state constitutional provisions may permit fewer restrictions on speech than the first amendment permits does not necessarily mean, or even imply, however, that the state constitution categorically proscribes contractual waivers of the right to engage in that speech. Indeed, the defendant has pointed to no evidence that the framers intended to proscribe voluntary contractual restrictions on speech that would be protected from government interference under the state constitution. Cf. Cologne v. Westfarms Associates, 192 Conn. 48, 62, 469 A.2d 1201 (1984) ("[t]here is nothing in the history of [the Connecticut declaration of rights or the federal constitution's bill of rights] to suggest that they were intended to guard against private interference with [free speech] rights"). In light of the strong public policy favoring freedom of contract, we decline to presume that the framers had such an intent in the absence of any such evidence. For the same reasons, we conclude, under the third and fourth prongs of Geisler, that our decision in Linares and the history of the state constitutional provisions do not support the defendant's claim.

With respect to other state precedents, the defendant relies on a number of New York cases in support of her claim that our state constitution proscribes the contractual waiver of free speech rights. These cases, however, do not address the scope of speech rights under the state constitution, but merely stand for the proposition that a contractual waiver of first amendment rights is valid and binding unless it violates the public policy embodied in the first amendment. The defendant also points to a number of cases from other states that have held that a court proceeding may not be closed to the public merely because of the celebrity status of the parties, and argues that, "if public openness cannot be overcome by a person's celebrity status, a person's ability to speak about those proceedings similarly cannot be abridged simply because one of the parties to the litigation is a wealthy celebrity." The short response to this argument is that the defendant's right to free speech is not restricted because of the plaintiff's celebrity status, but because of the defendant's intelligent and voluntary execution of the confidentiality agreement. Accordingly, we conclude that other state precedents do not support the defendant's claim.

Finally, we address the defendant's claim that contemporary understandings of applicable economic and sociological norms support her position. She contends that "[o]ur modern climate calls for litigation to be conducted in a public rather than a secret setting" and "[t]o restrict the defendant's ability to freely comment about litigation with her celebrity spouse contravenes this Connecticut public policy." We agree with the defendant's contention that there is a strong public policy in Connecticut favoring open courts. See, e.g., Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 65, 818 A.2d 14 (2003) ("[t]he presumption of openness of court proceedings . . . is a fundamental principle of our judicial system"). Pursuant to this public policy, "the public may not be excluded from judicial proceedings, and . . . records of court proceedings may not be sealed, unless the court identifies, on the record and in open court, `an interest which is determined to override the public's interest in attending such proceeding or in viewing such materials.' Practice Book § 11-20 (b)." Doe v. Connecticut Bar Examining Committee, supra, 68. The present case, however, does not concern court proceedings or court files. Instead, it is limited to the question of whether private parties can agree not to provide information to the press and public. We conclude, therefore, that the public policy favoring open courts does not support the defendant's claim under the state constitution.

In summary, none of the six Geisler considerations supports the defendant's claim that her speech rights under article first, §§ 4 and 5, of the constitution of Connecticut cannot be waived and one consideration — federal precedent — weighs against it. Accordingly, we reject this claim.

IV

We next address the defendant's claim that the confidentiality agreement is unenforceable because it violates the public policy favoring free speech and open access to the courts. We disagree.

At the outset, we address the plaintiff's claim that this issue was not raised at trial and, therefore, the decision of the trial court may be reversed only if we conclude that the court's enforcement of the confidentiality agreement was plain error. See Practice Book § 60-5 ("[t]he court may in the interests of justice notice plain error not brought to the attention of the trial court"). The defendant contends that she raised her claim that the confidentiality agreement violated public policy "in [her] opposition to the restraining order, her trial brief in support of that opposition, and her oral argument during the hearing on the prior restraint orders." She does not identify, however, where in the record she raised this claim. We have reviewed the defendant's briefs to the trial court and the transcript of the hearing on the plaintiff's motion for a restraining order and conclude that, although the defendant argued that it would be unfair and unconstitutional to enforce the confidentiality agreement, she did not expressly raise or brief a claim that, even if she had waived her constitutional rights, the confidentiality agreement was void on the ground that it violated the public policies favoring free speech and open courts. Because she adequately has briefed the issue in her appellate brief and has requested review of any unpreserved claims under the plain error doctrine, we consider whether the defendant's claim implicates plain error. See State v. Myers, 290 Conn. 278, 287-89, 963 A.2d 11 (2009) (although plain error doctrine is rule of reversibility, not of reviewability, predicates to consideration of such claims are adequate record and determination of whether record reflects plain error).

The plain error doctrine, which is "codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. . . . [I]t is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citations omitted; internal quotation marks omitted.) Id., 289.

This court has held that "[t]he principle that agreements contrary to public policy are void should be applied with caution and only in cases plainly within the reasons on which that doctrine rests; and it is the general rule . . . that competent persons shall have the utmost liberty of contracting and that their agreements voluntarily and fairly made shall be held valid and enforced in the courts." (Internal quotation marks omitted.) Collins v. Sears, Roebuck Co., 164 Conn. 369, 376-77, 321 A.2d 444 (1973).

A number of courts have concluded that, even if a party is found to have validly waived constitutional free speech rights, the waiver may be unenforceable "if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement." (Internal quotation marks omitted.) Leonard v. Clark, supra, 12 F.3d 890; see also Erie Telecommunications, Inc. v. Erie, supra, 853 F.2d 1099 (even where waiver of constitutional speech rights was knowing, voluntary and intelligent, "public policy must be considered as a factor in determining whether to give effect to a waiver of constitutional rights"); Wilkicki v. Brady, 882 F. Sup. 1227, 1234 (D.R.I. 1995) (applying public interest balancing test to determine enforceability of waiver of constitutional speech rights). The factors favoring enforcement of contractual waivers of constitutional free speech rights include the public policy favoring freedom of contract; Collins v. Sears, Roebuck Co., supra, 164 Conn. 376; the interest in encouraging settlement of disputes; see Wilkicki v. Brady, supra, 1234; see also Billington v. Billington, 220 Conn. 212, 221, 595 A.2d 1377 (1991) (policy of encouraging private settlement also applies to marital dissolutions); protecting the "fundamental principle of personal autonomy"; Wilkicki v. Brady, supra, 1234; and the fact that the agreement "involves private litigants, and concerns matters of little legitimate public interest." Pansy v. Stroudsburg, 23 F.3d 772, 788 (3d Cir. 1994).

Factors that have weighed against the enforcement of contractual waivers include the "`critical importance'" of the right to speak on matters of public concern; Leonard v. Clark, supra, 12 F.3d 891; the fact that the agreement restricts a party from communicating with a public agency regarding the enforcement of civil rights laws; Equal Employment Opportunity Commission v. Astra USA, Inc., 94 F.3d 738, 744 (1st Cir. 1996); the fact that the agreement requires the suppression of criminal behavior; Bowman v. Board of Education, 44 Ohio App. 3d 169, 172, 542 N.E.2d 663 (1988); the fact that the information being suppressed is important to protecting the public health and safety; Pansy v. Stroudsburg, supra, 23 F.3d 787; and the fact that the party benefiting from the confidentiality provision is a public entity or official. Id., 788. Courts also have considered whether the contractual restriction on speech was tailored to advance the primary purpose of the contract. See Equal Employment Opportunity Commission v. Astra USA, Inc., supra, 744; Leonard v. Clark, supra, 891-92; Forbes v. Milwaukee, United States District Court, Docket No. 05-C-591 (E.D. Wis. January 4, 2007).

In the present case, we conclude that these factors weigh in favor of enforcing the confidentiality agreement. The agreement does not prohibit the disclosure of information concerning the enforcement of laws protecting important rights, criminal behavior, the public health and safety or matters of great public importance, and the plaintiff is not a public official. Moreover, the restrictions on speech imposed by the confidentiality agreement are tailored to advance its primary purpose of protecting the value of the plaintiff's business. Accordingly, we conclude that the confidentiality agreement did not violate the public policy favoring free speech. In addition, for the reasons stated in part III of this opinion, we conclude that the confidentiality agreement does not implicate the public policy favoring open courts. We conclude, therefore, that the trial court did not commit plain error when it determined that the confidentiality agreement was enforceable.

V

Finally, we address the defendant's claim that the confidentiality agreement is void for indefiniteness. We disagree.

The defendant makes no claim that she raised this issue before the trial court. Accordingly, the decision of the trial court may be reversed only if we conclude that the confidentiality agreement was so indefinite that its enforcement by the trial court was plain error. The standard of review for claims of plain error is set forth in part IV of this opinion.

"Under established principles of contract law, an agreement must be definite and certain as to its terms and requirements. . . . 1 Restatement (Second), Contracts [§ 33, p. 92] (1981). . . ." (Citations omitted; internal quotation marks omitted.) Dunham v. Dunham, 204 Conn. 303, 313, 528 A.2d 1123 (1987), overruled in part on other grounds by Santopietro v. New Haven, 239 Conn. 207, 213 n. 8, 682 A.2d 106 (1996). "The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy." 1 Restatement (Second), supra, § 33 (2), p. 92; see also Coady v. Martin, 65 Conn. App. 758, 767, 784 A.2d 897 (2001), cert. denied, 259 Conn. 905, 789 A.2d 993 (2002). "[T]he degree of certainty required may be affected by the dispute which arises and by the remedy sought. Courts decide the disputes before them, not other hypothetical disputes which might have arisen." 1 Restatement (Second), supra, § 33, comment (b), p. 93.

The defendant in the present case claims that the confidentiality agreement is so indefinite as to be unenforceable because "virtually any comment that the defendant makes about the plaintiff, that could at all be interpreted as disrespectful, would come within the meaning of the prohibited speech. For example, were the defendant to admit to a member of the media that she and the plaintiff had divorced, she might find herself accused of breach because the perception that the plaintiff had a failed marriage could be interpreted to `disparage' him. Moreover, the scope of the provision prohibits the defendant from even speaking about herself in a manner that could be perceived as disparaging." None of these circumstances, however, is present in this case. Rather, the plaintiff sought the restraining order to prevent the defendant from appearing on a "nationally broadcast television show to discuss the plaintiff, [the defendant's] marriage to the plaintiff, and the pending custody litigation." Because the foregoing claims of indefiniteness involve hypothetical situations, we decline to address them.

The defendant also claims that "[i]t is unclear whether [the confidentiality agreement's prohibition on speaking to] the press is limited to the printed press or to all news media providers, or even individuals with personal Internet blogs. It is even more unclear who is encompassed by the public. It is possible that this proscribes comments in Internet chatrooms or even conversations with her mother, her best friend, her psychologist or her daughter's [physician]." To the extent that the defendant challenges the trial court's determination that the confidentiality agreement's prohibition on disseminating information to the press and the public applies to appearances on radio or television, we conclude that that determination did not constitute plain error. The conclusion was supported both by the express purpose of the agreement to protect the value of the plaintiff's business and by the ordinary meaning of the word "press." See Merriam-Webster's Collegiate Dictionary (10th Ed. 1993) (defining "press" in relevant part as "b: newspapers, periodicals, and often radio and television news broadcasting c: news reporters, publishers, and broadcasters . . ."). Thus, a reasonable person of ordinary experience and intelligence would understand the confidentiality agreement's prohibition on the "[d]isclosure to the press or public of any information related to this litigation" to apply, at the very minimum, to an appearance on a nationally broadcast television program to discuss the plaintiff, the marriage and the pending custody litigation. Accordingly, we conclude that the confidentiality agreement "provide[d] a basis for determining the existence of a breach and for giving an appropriate remedy." 1 Restatement (Second), supra, § 33 (2), p. 92. We therefore reject this claim.

The judgment is affirmed.

In this opinion the other justices concurred.