(CN) - The Oregon Supreme Court on Thursday ruled that nondisparagement agreements don't waive a party's right to file anti-SLAPP motions, as an appeals court had found.

The case arises from a divorce in 2017 between Peter Lowes and Amy Thompson. The next year, Thompson ran for a seat on the Deschutes County Board of Commissioners. Lowes, rather ungallantly, donated $2,000 to her opponent. Oregon Public Broadcasting did a bit of digging and learned that Thompson had filed a restraining order against Lowes in 2016, accusing him of strangling and assaulting her on two separate occasions. She also reported the incidents to the police. Lowes was charged with domestic violence, and he pleaded guilty to one count of fourth-degree assault, admitting that he "knowingly caused physical injury" to Thompson.

The divorce ended in a stipulated dissolution judgement, in which Lowes and Thompson agreed not to sue each other for anything that happened during their four-year marriage, and agreed to a nondisparagement clause - that is, they agreed not to "make any public or private statement, whether written or oral, that disparages, defames, is derogatory about, or misrepresents the other party or one of their business interests."

Nonetheless, when Oregon Public Broadcasting called Thompson, who was now running for public office, Thompson told the journalist that Lowes' behavior during their marriage had been "egregious," stating that Lowes had strangled her. She added: "I'm disappointed my opponent would choose to take a sizable donation from my abuser. I never had any intention of politicizing this."

Lowes then sued Thompson for breach of contract, claiming she'd broken the nondisparagement agreement. In response, Thompson filed an anti-SLAPP motion, a legal maneuver to quickly dismiss a lawsuit aimed at chilling free speech or public participation. The trial court agreed that Thompson's quotes arose out of protected speech since she was a political candidate and domestic violence was an issue of public concern, and the judge dismissed the lawsuit.

However, the appeals court reversed the ruling, finding that when the couple signed the nondisparagement agreement, "they necessarily waived the rights - constitutional and statutory - to make them, even if those statements would otherwise qualify" for anti-SLAPP protections. That ruling put Lowes' lawsuit back in play.

Now, Thompson appealed to the state Supreme Court. Her attorney, Nathan Steele, argued last year that nowhere did the agreement state the parties were waiving the right to file anti-SLAPP motions. Lowes' lawyer, Julie Smith, compared the agreement to how a defendant representing themselves in court waives their right to counsel. In much the same way, she argued, signing a nondisparagement agreement waives some of one's free speech rights.

In his 21-page ruling, Justice Stephen Bushong sided with Thompson.

"Although the parties mutually agreed not to disparage each other, we see no evidence in the text of the clause, considered in the context of the stipulated dissolution judgment, that they clearly intended to waive their right to seek early dismissal of a nonmeritorious disparagement claim under the procedure provided in the anti-SLAPP statute," Bushong wrote.

The ruling remands the case back to the court of appeals, which must reconsider the merits of the anti-SLAPP motion.

In a short concurrence, Justice Bronson James added a plea to the Legislature for guidance on what he called "the much more sweeping question that lurks in the background of this case: What are the public policy limitations, in Oregon, on contractual clauses, whether written in terms of nondisclosure or nondisparagement, that seek to prohibit speech on matters of abuse?"

"On the issue of the enforceability of nondisclosure contract provisions to claims of abuse, the Oregon legislature has provided little guidance," wrote James. "I encourage it to do so, for the question left lurking from this case will surely be before us in the future."

Source: Courthouse News Service