I was fired the other day. I believe the preferred phrase is “terminated,” which is how my former employer, Byliner, a digital publishing company and subscription service in San Francisco, put it.
I was informed that our “burn rate” was too high, that we needed to show investors that we were serious about reducing it and that, while my loss of a job was unfortunately going to be a part of that reduction, this had nothing to do with the quality of my work. Soon thereafter an email arrived from the company’s founder and chief executive saying how much he had enjoyed working with me.
Around the same time a termination agreement pinged into my inbox. Much of it set forth standard-issue language resolving such matters as date of termination, the vesting of options, the release of all claims against the company and the return of company property. I think I get to keep last year’s Christmas gift of an iPad, and the previous year’s bottle of wine has long been drunk, but I must send back any company files in my possession. So far, so good.
What brings me up short is “Clause No. 12: No Disparagement.”
“You agree,” it reads, “that you will never make any negative or disparaging statements (orally or in writing) about the Company or its stockholders, directors, officers, employees, products, services or business practices, except as required by law.”
If I don’t agree to this nondisparagement clause, I will not receive my severance, in this case the equivalent of two weeks of pay. Two weeks? Must be hard times out in San Francisco, or otherwise why the dirt parachute – and, by the way, is that the sort of remark that I won’t be allowed to make if I sign Clause No. 12?
I would prefer not to, as Bartleby the Scrivener put it so succinctly in Herman Melville’s classic tale of bureaucratic resistance. When I shared that inclination with one of my superiors at Byliner, the news traveled up the chain of command. I was soon informed that the president wished to assure me that there is nothing unusual about such clauses, that media people like herself sign them all the time and that Byliner might even agree to a mutual-nondisparagement clause. That means that, if I don’t say anything mean about the company, its representatives won’t say anything unkind about me.
You might say, what’s the big deal? Sign the damn thing already! And indeed it’s true, as Byliner implied, that nondisparagement clauses prohibiting individuals from saying or writing anything that might have a negative effect on a corporation are increasingly common, used in most settlement agreements and in about a quarter of executive-employment agreements.
To make the choice of nondisparagement even easier for a prospective signee, there is no established body of law precisely defining “disparagement.” Several state laws suggest that, for former employees to violate a nondisparagement contract, their statements must be not only disparaging but also untrue. This means that it probably would be hard for a company to prove disparagement in the courts.
So if nondisparagement agreements are downright ordinary and, at the same time, difficult to enforce, why not sign and take the severance?
Because, as quaint as this may seem, giving up the right to speak and write freely, even if that means speaking or writing negatively, strikes me as the unholiest of deals for a writer and an editor to accept. Though such clauses don’t technically violate the First Amendment – I’d be explicitly agreeing to forfeit my right to speak freely if I signed Clause No. 12 – such a contract has a paralyzing effect on the dissemination of the truth, with all of truth’s caustically cleansing powers. To disparage is but one tool in a writer’s kit, but it’s an essential one. That a company would offer money for my silence, which is what this boils down to … Well, I’ve seen many a mob movie about exactly that exchange.
The increased prevalence of nondisparagement agreements is part of a corporate culture of risk management that would have us say nothing if we can’t say anything nice. Yet it occurs to me that, if a company isn’t strong enough to be reproached, then it simply isn’t strong enough, period.
Mind you, I’m not looking to disparage Byliner. The company has made a few mistakes in my view, firing me perhaps being a relatively minor one, but what fledgling enterprise does not screw up from time to time during its shakedown phase? It’s not that I necessarily want to disparage, but I want the freedom to do so, to be able to criticize, to attack, to carp, to excoriate, if need be. I want to tell the truth, even if it isn’t pretty.
That’s why I won’t sign Clause No. 12. Byliner can keep the money. I’ll keep my self-respect.
The New York Times
Will Blythe, a Chapel Hill native, is author of “To Hate Like This Is to be Happy Forever” and a former editor-at-large for Byliner.