91视频

In many contexts, employers, companies and individuals ask others to refrain from exercising their right to speak or petition the government. For example, a company protecting its trade secrets, an individual pitching an idea, or an employer providing access to sensitive materials might require the execution of a nondisclosure agreement. A party settling a lawsuit or an employer offering a severance agreement might require a non-disparagement provision, or a promise not to pursue further litigation. And many agreements contain confidentiality agreements.

A recent Oregon Supreme Court opinion highlights a significant barrier to enforcement of such agreements: Oregon鈥檚 anti-SLAPP statute 鈥� ORS 31.150-.155. First enacted in 2001 and amended most recently this past legislative session, the anti-SLAPP statute is designed to protect the rights of free speech, petition, assembly, freedom of the press, and expression. It does so by providing defendants with a procedure to dispose of litigation targeting those protected rights. If a defendant demonstrates that one or more claims in the litigation arise from First Amendment conduct that the anti-SLAPP statute protects, then the plaintiff must produce evidence supporting those claims.

Because one of the purposes of the statute is to prevent a defendant from incurring significant expense, the plaintiff must produce evidence without taking discovery unless the plaintiff persuades the court that there is good cause for 鈥渟pecified discovery.鈥� If the plaintiff fails to support its claims, then the court grants the motion, dismisses some or all claims, and awards the defendant its attorney fees. If the court denies the motion, then the defendant has an immediate right to appeal.

With that background in mind, let鈥檚 turn to the Oregon Supreme Court opinion. In Lowes v. Thompson (2025), which the Oregon Supreme Court decided in July, Mr. Lowes sued his ex-wife, Ms. Thompson, for allegedly breaching a non-disparagement provision in the former couple鈥檚 stipulated divorce judgment (such stipulated judgments are treated as contracts).

In 2018, Thompson ran for election as Deschutes County commissioner. Lowes contributed $2,000 to Thompson鈥檚 opponent. Meanwhile, Oregon Public Broadcasting (OPB) obtained through a public records request police records related to significant domestic violence by Lowes against Thompson that had led to the divorce. OPB then contacted Thompson about Lowes鈥� large contribution. She told OPB, 鈥淚鈥檓 disappointed my opponent would choose to take a sizable donation from my abuser,鈥� characterized Lowes鈥� abuse as 鈥渆gregious,鈥� and revealed that Lowes had 鈥渟trangled鈥� her after he鈥檇 been able to access the room in which she鈥檇 barricaded herself.

Thompson filed an anti-SLAPP motion in response to the breach of contract claim. Thompson argued that the anti-SLAPP statute applied because she had spoken on an issue of public interest. Lowes responded that by entering into the stipulated non-disparagement provision, Thompson had waived the protections of the anti-SLAPP statute, and even if she had not, Lowes was able to satisfy his burden of demonstrating that his claim had merit. The trial court found that the anti-SLAPP statute applied and that Lowes had failed to carry his burden. The trial court did not decide whether Thompson had waived the protections of the anti-SLAPP statute through the non-disparagement provision.

Lowes appealed to the Court of Appeals, where he won. That court held that by agreeing to the non-disparagement provision, Thompson had waived the protections of the anti-SLAPP statute. But the Supreme Court reversed on this point, holding that it would find waiver only where a party expressly waived the anti-SLAPP statute鈥檚 protections.

Although Lowes v. Thompson involved a divorce judgment, its holding informs any business or individual seeking contractual waivers of the rights protected by the anti-SLAPP statute 鈥� including the right to sue or speak one鈥檚 mind in a variety of contexts. Although the anti-SLAPP statute protects only speech on issues of public interest, that requirement is construed very broadly to mean literally anything the public is interested in (for example, the quality of a wedding venue or piano tuner, as was the case in two Supreme Court opinions). And if the statement at issue is made in a legislative, executive or judicial proceeding 鈥� for example, a disparaging remark made while testifying 鈥� then that statement falls under the anti-SLAPP statute even if it is not connected to an issue of public interest.

Fortunately, Lowes v. Thompson also suggests a basic solution facilitating enforcement of contractual provisions curtailing First Amendment rights: include a waiver of the procedures of ORS 31.150-.155 in contracts containing non-disparagement, non-disclosure, or confidentiality provisions. There is some nuance here, given policy concerns about certain types of non-disparagement/confidentiality provisions 鈥� for example, where such provisions might prevent the reporting of workplace sexual harassment. Therefore, parties should consider consulting with a legal professional familiar with these issues.

Clifford Davidson is the managing partner of the Snell & Wilmer office in Portland. His practice involves commercial law, freedom of expression and defamation, and anti-SLAPP litigation. Contact him at 503-443-6099 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91视频 guarantees the accuracy or completeness of any information published herein.