Blue Pencil Rule
What Is the Blue Pencil Rule?
Also known as the blue pencil doctrine, the blue pencil rule is a legal term that allows parts of a contract to remain enforceable while other parts are deemed unenforceable. The rule may not be invoked to change the original meaning of a contract.
The term comes from the concept of the court striking out the offending portions of the contract with a copy editor’s blue pencil. Editing marks made with a blue pencil, also known as a non-photo blue pencil, do not show up in lithographic or photographic reproduction processes.
Examples of Blue-Penciling
The most common use for the blue pencil doctrine in the U.S. is in non-compete agreements. U.S. courts often use the blue pencil rule as a way to examine and deliberate the restrictions in a contract, depending upon the evidence and the individual circumstances of the case.
States vary in how they view the blue pencil rule in business law. In some states, the rule refers only to striking out offending words or phrases without making any other changes while keeping the rest of the agreement enforceable and grammatically correct.
For example, after examining all the evidence, a court may reduce an inordinately long time specified in a contract for a non-compete agreement while enforcing the remainder of the employment contract. However, other states prohibit blue-penciling in non-compete agreements.
What States Are Blue Pencil States?
While the majority of states allow their courts to use the blue pencil contract law under reasonable circumstances, three prohibit its use, and some have unclear guidance.
The following table contains an overview of how the states regard the blue pencil rule.
| State | Position on Blue Penciling |
| Alabama | Courts will only revoke the equitable parts of the covenant |
| Alaska | Courts will only revoke the equitable parts of the covenant |
| Arizona | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Arkansas | Courts will not blue pencil a contract |
| California | Courts cannot apply the blue pencil rule |
| Colorado | Courts will only revoke the equitable parts of the covenant |
| Connecticut | Courts will only revoke the equitable parts of the covenant |
| Delaware | Courts will only revoke the equitable parts of the covenant |
| Florida | Courts are bound to reform covenants |
| Georgia | Courts will not blue pencil a contract |
| Hawaii | Guidance for the blue pencil rule is unclear |
| Idaho | Courts are bound to reform covenants |
| Illinois | Courts will only revoke the equitable parts of the covenant |
| Indiana | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Iowa | Courts will only revoke the equitable parts of the covenant |
| Kansas | Courts will only revoke the equitable parts of the covenant |
| Kentucky | Courts will only revoke the equitable parts of the covenant |
| Louisiana | Guidance for the blue pencil rule is unclear |
| Maine | Courts will only revoke the equitable parts of the covenant |
| Maryland | Guidance for the blue pencil rule is unclear |
| Massachusetts | Courts will only revoke the equitable parts of the covenant |
| Michigan | Courts will only revoke the equitable parts of the covenant |
| Minnesota | Courts will only revoke the equitable parts of the covenant |
| Mississippi | Courts will only revoke the equitable parts of the covenant |
| Missouri | Courts will only revoke the equitable parts of the covenant |
| Montana | Courts cannot apply the blue pencil rule |
| Nebraska | Courts will not blue pencil a contract |
| Nevada | Courts will only revoke the equitable parts of the covenant |
| New Hampshire | Courts will only revoke the equitable parts of the covenant |
| New Jersey | Courts will only revoke the equitable parts of the covenant |
| New Mexico | Guidance for the blue pencil rule is unclear |
| New York | Courts will only revoke the equitable parts of the covenant |
| North Carolina | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| North Dakota | Courts cannot apply the blue pencil rule |
| Ohio | Courts will only revoke the equitable parts of the covenant |
| Oklahoma | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Oregon | Courts will only revoke the equitable parts of the covenant |
| Pennsylvania | Courts will only revoke the equitable parts of the covenant |
| Rhode Island | Guidance for the blue pencil rule is unclear |
| South Carolina | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| South Dakota | Guidance for the blue pencil rule is unclear |
| Tennessee | Courts will only revoke the equitable parts of the covenant |
| Texas | Courts are bound to reform covenants |
| Utah | Guidance for the blue pencil rule is unclear |
| Vermont | Courts will only revoke the equitable parts of the covenant |
| Virginia | Courts will not blue pencil a contract |
| Washington | Courts will only revoke the equitable parts of the covenant |
| Washington D.C. | Guidance for the blue pencil rule is unclear |
| West Virginia | Courts will only revoke the equitable parts of the covenant |
| Wisconsin | Courts will not blue pencil a contract |
| Wyoming | Courts will only revoke the equitable parts of the covenant |
Why Is the Blue Pencil Rule Controversial?
Many companies rely on non-compete contracts to protect their interests. As a result, they push for restrictions on the amount of time before a former employee can work for a competitor.
However, employees argue that these non-competition time restrictions often are overly broad and represent an overreach by an employer. As a result, most legislatures in states that allow the rule invoke it only on a strict case-by-case basis.
Helpful Resources:
What Is the Blue Pencil Rule?
Also known as the blue pencil doctrine, the blue pencil rule is a legal term that allows parts of a contract to remain enforceable while other parts are deemed unenforceable. The rule may not be invoked to change the original meaning of a contract.
The term comes from the concept of the court striking out the offending portions of the contract with a copy editor’s blue pencil. Editing marks made with a blue pencil, also known as a non-photo blue pencil, do not show up in lithographic or photographic reproduction processes.
Examples of Blue-Penciling
The most common use for the blue pencil doctrine in the U.S. is in non-compete agreements. U.S. courts often use the blue pencil rule as a way to examine and deliberate the restrictions in a contract, depending upon the evidence and the individual circumstances of the case.
States vary in how they view the blue pencil rule in business law. In some states, the rule refers only to striking out offending words or phrases without making any other changes while keeping the rest of the agreement enforceable and grammatically correct.
For example, after examining all the evidence, a court may reduce an inordinately long time specified in a contract for a non-compete agreement while enforcing the remainder of the employment contract. However, other states prohibit blue-penciling in non-compete agreements.
What States Are Blue Pencil States?
While the majority of states allow their courts to use the blue pencil contract law under reasonable circumstances, three prohibit its use, and some have unclear guidance.
The following table contains an overview of how the states regard the blue pencil rule.
| State | Position on Blue Penciling |
| Alabama | Courts will only revoke the equitable parts of the covenant |
| Alaska | Courts will only revoke the equitable parts of the covenant |
| Arizona | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Arkansas | Courts will not blue pencil a contract |
| California | Courts cannot apply the blue pencil rule |
| Colorado | Courts will only revoke the equitable parts of the covenant |
| Connecticut | Courts will only revoke the equitable parts of the covenant |
| Delaware | Courts will only revoke the equitable parts of the covenant |
| Florida | Courts are bound to reform covenants |
| Georgia | Courts will not blue pencil a contract |
| Hawaii | Guidance for the blue pencil rule is unclear |
| Idaho | Courts are bound to reform covenants |
| Illinois | Courts will only revoke the equitable parts of the covenant |
| Indiana | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Iowa | Courts will only revoke the equitable parts of the covenant |
| Kansas | Courts will only revoke the equitable parts of the covenant |
| Kentucky | Courts will only revoke the equitable parts of the covenant |
| Louisiana | Guidance for the blue pencil rule is unclear |
| Maine | Courts will only revoke the equitable parts of the covenant |
| Maryland | Guidance for the blue pencil rule is unclear |
| Massachusetts | Courts will only revoke the equitable parts of the covenant |
| Michigan | Courts will only revoke the equitable parts of the covenant |
| Minnesota | Courts will only revoke the equitable parts of the covenant |
| Mississippi | Courts will only revoke the equitable parts of the covenant |
| Missouri | Courts will only revoke the equitable parts of the covenant |
| Montana | Courts cannot apply the blue pencil rule |
| Nebraska | Courts will not blue pencil a contract |
| Nevada | Courts will only revoke the equitable parts of the covenant |
| New Hampshire | Courts will only revoke the equitable parts of the covenant |
| New Jersey | Courts will only revoke the equitable parts of the covenant |
| New Mexico | Guidance for the blue pencil rule is unclear |
| New York | Courts will only revoke the equitable parts of the covenant |
| North Carolina | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| North Dakota | Courts cannot apply the blue pencil rule |
| Ohio | Courts will only revoke the equitable parts of the covenant |
| Oklahoma | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| Oregon | Courts will only revoke the equitable parts of the covenant |
| Pennsylvania | Courts will only revoke the equitable parts of the covenant |
| Rhode Island | Guidance for the blue pencil rule is unclear |
| South Carolina | Courts will only blue pencil contracts that are non-solicitation covenants or activity restraints |
| South Dakota | Guidance for the blue pencil rule is unclear |
| Tennessee | Courts will only revoke the equitable parts of the covenant |
| Texas | Courts are bound to reform covenants |
| Utah | Guidance for the blue pencil rule is unclear |
| Vermont | Courts will only revoke the equitable parts of the covenant |
| Virginia | Courts will not blue pencil a contract |
| Washington | Courts will only revoke the equitable parts of the covenant |
| Washington D.C. | Guidance for the blue pencil rule is unclear |
| West Virginia | Courts will only revoke the equitable parts of the covenant |
| Wisconsin | Courts will not blue pencil a contract |
| Wyoming | Courts will only revoke the equitable parts of the covenant |
Why Is the Blue Pencil Rule Controversial?
Many companies rely on non-compete contracts to protect their interests. As a result, they push for restrictions on the amount of time before a former employee can work for a competitor.
However, employees argue that these non-competition time restrictions often are overly broad and represent an overreach by an employer. As a result, most legislatures in states that allow the rule invoke it only on a strict case-by-case basis.
Helpful Resources: