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Baltimore urges 4th Circuit to affirm dismissal of ‘gag order’ lawsuit

Baltimore is asking a federal appellate court to affirm the dismissal of a lawsuit challenging its policy of including non-disparagement clauses in police misconduct settlements, arguing the clause in question did not violate a woman’s free speech rights.

The ACLU of Maryland appealed the dismissal in December after U.S. District Judge Marvin J. Garbis ruled the clause did not violate Ashley Overbey’s First Amendment rights. She alleged the so-called gag order included in her settlement restricted her speech, but Garbis held that she signed the agreement knowingly with the advice of an attorney and waived her constitutional rights.

Garbis also dismissed the claim by Overbey’s co-defendant, The Baltimore Brew, that the clauses prevent reporters from presenting a full and accurate picture of police encounters. Garbis ruled the paper lacked standing to sue.

On appeal, Baltimore contends in its brief, filed Tuesday, that Overbey “cannot establish a constitutional violation” because of her decision to enter the contract with the city. Overbey lost half of her settlement after she commented on a blog post about her lawsuit.

“The facts alleged in the amended complaint show that the City did not restrict her speech, instead, she agreed to exercise her right not to speak in exchange for a payment of money in settlement of her lawsuit,” the city’s brief states.

The brief goes on to encourage affirming the dismissal of the Baltimore Brew’s claims because “the press has no right to unrestricted information, and individuals are free to enter into contracts to remain silent as consideration supporting agreements to settle lawsuits.”

Baltimore City Solicitor Andre Davis has said that the non-disparagement clause in Overbey’s agreement is no longer used by the city, which now requires plaintiffs and their agents to “strictly limit their public comments … to the facts alleged in the pleadings and motions filed with the court.”

The case is Ashley Amaris Overbey et al. v. Mayor and City Council of Baltimore et al., 17-1793-MJG.

Eastern Shore lawsuit

In a separate lawsuit filed in state court, the ACLU of Maryland and The Real News Network are attacking the legality of a confidential police settlement through a Public Information Act lawsuit.

The plaintiffs filed MPIA requests with the city of Salisbury seeking documents related to the resolution of an excessive force lawsuit brought by four Salisbury University students. The city, which had not disclosed the amount of the settlement publicly, replied that is had no responsive documents because a third-party insurer represented the government in the lawsuit.

A judge denied Salisbury’s motion to dismiss on May 31, finding Local Government Insurance Trust was an agent of the city, which could not shield otherwise public records by transacting business through its insurer or attorney.

The city also argued the plaintiffs in the underlying litigation were necessary parties because of their privacy interest in the confidential settlement. But the judge said a private contract provision does not shield a potential public record.

The case is American Civil Liberties Union Foundation of Maryland et al. vs. City of Salisbury et al., C-22-CV-17-000440.


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