Tucker Carlson might not work for Fox News anymore, but as their messy public divorce drags on, the unhappily parted pair can’t help making headlines. The latest salvo was fired by Fox, which warned that the former anchor’s new Twitter show violates the noncompete clause in his contract. A lawyer for Carlson shot back that any attempt to shut him down would violate the First Amendment.
I have no dog in this fight, but whatever the answer, the First Amendment has nothing to do with it.
Carlson vanished from Fox’s air in late April, days after the massive settlement of Dominion’s defamation suit against the cable network. On June 6, he launched his show on Twitter. According to the social media company, Carlson’s first episode drew some 115 million views. That’s when Fox slapped him with a cease-and-desist letter.
Without access to the contract, we can’t tell whether Carlson’s new Twitter show actually violates his covenant not to compete. But if indeed he’s broken his promise, he’s going to have a rough time.
It’s true that covenants not to compete aren’t popular these days. In January, the Federal Trade Commission proposed a nationwide ban on most noncompetes — a remarkably bad idea that, as I’ve long argued, is likely to harm low-wage workers. A handful of states sharply restrict the clauses, and a larger but still small number will enforce them only if the employee earns more than a specified amount.
I tend to favor the classical liberal view of contract law, under which we’re mostly stuck with our contracts unless we were coerced or deceived. I agree with those who’d count as a deception the practice of many firms of hiding the noncompete until the onboarding process, at which point the new employee has turned down other offers. But in Carlson’s case, we’re talking about a wealthy media personality whose lawyers surely reviewed every line of the contract, and, if they did their jobs, explained to their client the significance of each. In other words, he’s poorly positioned to complain that he didn’t know what he was signing.
Carlson also has a bigger problem: He’s apparently still being paid. No copy of the contract has been made public, but Axios (which broke the story of the cease-and-desist letter) reports that the deal runs through Dec. 31, 2024. Until then, the letter from Fox asserts, Carlson’s “content” remains exclusive to the network.
From the point of view of contract law, this seems correct. Even courts that are uneasy about noncompete clauses have tended to enforce them when an ex-employee receives substantial income from the ex-employer. So as long as Fox continues to deposit Carlson’s hefty salary, estimated at $20 million or more, the network would seem to have the stronger case.
Which brings us to the First Amendment. Carlson’s lawyers have issued statements about their client’s freedom of speech, a tactic that suggest the argument they’d press should Fox actually sue. I’m a big supporter of free speech, but here the argument against enforcing the covenant isn’t as strong as it might appear.
It’s well established that a person may waive constitutional rights as part of a contract — even the right to free speech. True, such waivers are not always effective. Consider what happened in 2019, when Baltimore tried to enforce a clause in the settlement of a police brutality suit that prohibited the plaintiff from disparaging the police force. A federal court struck down the clause on the ground that the city’s interest in silencing the plaintiff was “outweighed by strong policy interests that are rooted in the First Amendment.”
That case, however, was quite unlike Carlson’s. For one thing, the waiver was part of an agreement with the government, which is held to a higher First Amendment standard. For another, even the government can generally enforce free speech waivers contained in employment contracts; otherwise, leakers could never be prosecuted. If the government can enforce free speech waivers by its employees, it’s hard to see why — once more, absent coercion or deceit — a private employer can be prevented from doing the same.
I quite understand Carlson’s determination to resist any effort to prevent him from speaking his mind. It’s a determination many of us share. And it’s possible, even likely, that his fans will rally to his defense. One source quoted by Variety warned that if Fox tried to keep Carlson from launching his Twitter show, Carlson was prepared to “watch the network implode attempting to challenge free speech.”
Maybe. But that’s a question of optics. As a matter of applicable law, it’s hard to see Carlson’s path to victory. If he really wants to litigate his rights, he might consider giving up the $30 million or so still due. That wouldn’t guarantee a win, but it would make his chances a lot better.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
