From Chief Judge Hala Jarbou (W.D. Mich.) Friday in Lothamer Tax Resolution, Inc. v. Kimmel; I think it summarizes the current state of the law well:
Lothamer is a tax services company that hired Kimmel in June 2024 to improve its software. When he was hired, Kimmel signed an Employment Agreement [providing, among other things:]
[Kimmel] covenants and agrees not to make negative comments about [Lothamer] or its officers, directors, current and former employees, or other agents after he … signs this agreement. Such disparagement includes, but is not limited to, making disparaging or discrediting remarks on any internet web site, including but not limited to, internet complaint boards or social media sites, such as FaceBook, Instagram, X (Twitter), TickTock, UTube, Google Reviews, the Better Business Bureau, any employment sites, etc ….
Lothamer was ultimately unsatisfied with Kimmel's work and terminated his employment on March 7, 2025 …. [Lothamer sued Kimmel for breach of contract, unauthorized computer access, and trade secret infringement, and] after the commencement of this lawsuit, Kimmel posted an article about Lothamer on LinkedIn. In the article, Kimmel criticized Lothamer for having poor data security and provided details about Lothamer's system that, according to Lothamer, are confidential. (Lothamer argues that Kimmel's post significantly increased the number of attempts by bad actors to breach its Portal, which has forced Lothamer to shut down the Portal during nights and weekends.)
The court concluded that Kimmel's post was indeed a breach of contract, and ordered him to remove it. And it had this to say about Kimmel's free speech objections, which seems to me consistent with the cases I've seen:
