Written by 
A candidate running in a local election in 2018 described her ex-husband as an abuser during an interview, which he says violates a clause of their divorce agreement.
(CN) — The Oregon Supreme Court must decide if a contractual non-disparagement provision in a former Oregon couple’s divorce can restrain someone from engaging in protected speech.
Peter Lowes and Amy Thompson divorced in 2017. The following year, Oregon Public Broadcasting quoted Thompson, who was running for a county commission seat, describing Lowes as “my abuser.” Lowes pleaded guilty to assaulting Thompson in 2016 and entered into a deferred sentencing agreement.
Lowes sued for breach of contract in 2021, accusing Thompson of violating the non-disparagement agreement which prohibited both parties from making a statement that “disparages, defames, is derogatory about, or misrepresents the other party or one of their business interests.”
At an oral argument before the Oregon Supreme Court on Thursday, Thompson argued the provision wasn’t a sufficient waiver of her rights under the state’s anti-Strategic Lawsuits Against Public Participation, or anti-SLAPP, statute, which is intended to protect people from lawsuits meant to silence or intimidate them from exercising their free speech rights.
“Our position is that this contract, the language of this contract, is inadequate under Oregon law to establish that waiver,” Nathan Steele, counsel for Thomspon, said.
Before the Supreme Court, Lowes’ attorney Julie Smith argued that the Court of Appeals had ruled correctly and likened the non-disparagement agreement to other ways in which people waive their rights, like how someone choosing to self-represent themselves in court waives their right to counsel.
Supreme Court Justice Bronson James questioned Smith about the line of logic regarding waivers.
“What is your best argument for why the level of detail here, which is more than nothing but maybe not as much as we’ve seen in other contexts, is sufficient for this type of right?” James asked.
Smith said it “seems quite obvious” that waiving a right to engage in certain speech limits one’s speech, and pointed out that both parties agreed to the marriage dissolution document that contains the provision and that it was the result of attorney negotiation and entered as a judgment.
James also questioned Smith if, under the non-disparagement provision, either party could sue the other for disparaging comments made in the complaints in the case. Smith conceded that the provision would allow for that.
James also asked whether the non-disparagement provision would prohibit either party from filing a police report if one of them hypothetically committed a new crime.
“I don’t think so,” Smith said.
“So then by its terms, this provision doesn’t waive all speech, it just waives some speech,” James said.
Smith clarified it waives derogatory and disparaging comments.
“It’s pretty disparaging to report somebody for a crime,” James said.
Smith told James she would change her answer then and said the provision would bar a crime report.
On rebuttal, Steele argued that Lowes had conceded in his briefing that Thompson had not “expressly waived” her rights under the anti-SLAPP statute.
“Our issue, and why we believe this court should reverse the Oregon Court of Appeals decision is that it’s inconsistent with the framework under [the anti-SLAPP statute,]” Steele said.
Filing a special motion to strike under the state’s anti-SLAPP statute triggers a two-pronged burden-shifting process. Once the defendant proves the claim arises from a protected activity, the burden shifts to the plaintiff to present evidence to support their claim.
The Oregon Court of Appeals found that Thompson had met the first prong, but that the second wasn’t relevant after construing the non-disparagement agreement as a waiver of those rights.
“The court needs to go through the process of the second prong,” Steele said.
A trial court originally dismissed the case after Thompson filed an anti-SLAPP special motion to strike Lowes’ single claim, arguing that her statements were made in a public forum in connection with an issue of public interest. On appeal, Lowes argued that the provision adequately waived his ex-wife’s right to speech protected by the anti-SLAPP statute.
The Oregon Court of Appeals initially agreed with Lowes and ruled that both parties “necessarily waived the rights — constitutional and statutory — to make [disparaging statements,] even if those statements would otherwise qualify for those protections.”
The Supreme Court did not indicate when it would rule.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.