The article is here; the Introduction:
Over the past decade, nondisclosure agreements intended to protect the reputation of one or both parties from embarrassing disclosures have failed, sometimes spectacularly. Among those humiliated by revelations of their past behaviors are Donald Trump, Vince McMahon, Neil Gaiman, and Harvey Weinstein; among those companies and institutions affected are the Catholic Church, the Miss USA Pageant, and some of the largest tech companies. These agreements' failures have occurred when one party to the agreement gave an interview, passed along leaked documents, or filed a public lawsuit that became the basis of public reporting about the secrets that the contract concerned, as well as about the contract itself. Commentators and critics have offered various prescriptions to stem the enforcement of the most egregious contracts intended to prevent a party from reporting sexual assault and harassment that violates criminal or civil law. In a recent article, I described the specific doctrinal, social, and informational dynamics that both render such contracts vulnerable to breach and frustrate their enforcement.
This Article considers the potential liability of third parties that assist or spur the breach of such contracts. Journalists have most frequently played key roles in these disclosures by contacting a party and encouraging them to reveal their secrets. Friends and family members have also initiated or encouraged breach, as have attorneys and activists who hope to reveal a party's wrongdoing. Such non-parties serve as "breach agents," outsiders to the contract who advise, encourage, or help one of the parties disclose the information they had agreed to keep secret. They play an integral role in breaking the dams that keep information private—whether, viewed sympathetically, to advance the public good by bringing egregious behavior to light or, viewed critically from the perspective of the nonbreaching party, to violate a legally enforceable promise and undermine contractual stability.
As non-parties to the contract, breach agents are vulnerable to suit under the common law tort of interference with performance of a contract. The relationships between that tort and contract law—and between the tort and the First Amendment rights of journalists and others to gather news, to speak, and to publish—last inspired widespread consideration and commentary in 1996, when the tobacco company Brown & Williamson attempted to use a non-disclosure clause in an employment contract to silence a former executive who had been interviewed by the CBS television news show 60 Minutes.
