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4th Circuit: Baltimore police settlement ‘gag orders’ violated 1st Amendment

The Baltimore Police Department cannot impose broad “gag orders” limiting what plaintiffs can say about settlement agreements, a federal appeals court panel ruled Thursday.

A three-judge panel for the 4th U.S. Circuit Court of Appeals ruled by a 2-1 vote that the nondisparagement clause in a woman’s settlement “amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void.”

The clause, included in nearly every agreement settling a police misconduct lawsuit until 2017, required Ashley Overbey Underwood to limit her public comments to the fact that a settlement had been reached and prohibited discussing opinions, facts or allegations connected to her case with the news media.

The majority concluded “enforcement of the nondisparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.”

Underwood said Thursday she is “absolutely ecstatic” about the ruling.

“People should be able to tell their stories and defend themselves when they are seeking justice, especially when the city gets to tell their side,” she said in a statement. “It gives me hope that we can see change for people and movement for police reform.”

The city has since changed the language limiting comments to the facts alleged in the pleadings and motions filed in the court. The 4th Circuit opinion does not address the change in language and limited its inquiry to the clause used in Underwood’s settlement.

Baltimore City Solicitor Andre M. Davis said Thursday the city will seek a review of the case by the full 4th Circuit. Davis also said the ruling will not have any immediate impact on how the city conducts settlements.

ACLU of Maryland Executive Director Dana Vickers Shelley praised the ruling as a “strong message” about the importance of the First Amendment.

“For too long, the First Amendment has failed to protect the voices of communities who have been systematically suppressed,” she said in a statement.

The ACLU represented Underwood along with pro bono counsel from Crowell & Moring LLP in Washington.

Underwood filed suit in U.S. District Court in Maryland in 2017 after she lost half her settlement with police for responding to disparaging online postings by reciting details from her case.

The lawsuit was dismissed in November 2017 by U.S. District Judge Marvin Garbis, who said that Baltimore Brew, a local news site that joined the suit, lacked standing and that Overbey had waived her First Amendment rights in signing the agreement. The plaintiffs appealed to the 4th Circuit.

The 4th Circuit majority reversed the rulings against both Underwood and the Brew. The court found the Brew had sufficiently argued that the clauses may have invaded its “legally protected interest in newsgathering.”

First Amendment principles

Judge Henry F. Floyd, writing on behalf of the two-judge majority, said though citizens can choose to waive their First Amendment rights in a contract with the government, such contracts are not enforceable if the government’s interest is outweighed by public policy. He was joined by Judge Stephanie D. Thacker.

Prohibiting Underwood from speaking about her experience with alleged police misconduct and the settlement process “was contrary to the public’s well-established First Amendment interest in ‘uninhibited, robust, and wide-open’ debate on ‘public issues,’” Floyd wrote.

By making Underwood’s silence about her claims a condition of settlement and being the sole arbiter of when she violated that condition, the city “has used its power in an effort to curb speech that is not to its liking,” he continued.

ACLU of Maryland legal director Deborah Jeon said the court “understood the power dynamic in play” in the case, which makes it impossible for plaintiffs to refuse the city’s demands.

“This ruling is a home run for the First Amendment, which is especially important in this cutting-edge case at the intersection between free speech and racial justice,” she said in a statement.

In court filings, the city argued it would be unfair to allow Underwood to break her silence when half of her settlement was conditioned on it.

Calling half of her settlement nearly indistinguishable from “hush money” using the city’s arguments, the majority said it has “never ratified the government’s purchase of a potential critic’s silence merely because it would be unfair to deprive the government of the full value of its hush money.”

Judge A. Marvin Quattlebaum Jr., who dissented from the ruling, said the majority’s ruling undermined the right of parties to rely on a contract they enter. Because Underwood entered the agreement knowingly and voluntarily, Quattlebaum said it should be enforced.

The clause “did not actually bar (Underwood) from speaking about her case” but merely imposed “financial consequences” if she chose to do so, according to Quattlebaum.

The city has an important interest in the enforcement of the clause, he wrote, particularly in the finality of litigation.

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