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City, ACLU spar over impact of executive order on ‘gag’ clauses

‘We want to remain before city judges and, if it comes to that, city jurors,’ says Baltimore City Solicitor Andre M. Davis. (File photo)

Baltimore City Solicitor Andre Davis says the city will use language that allows those who settle lawsuits with the city to comment on the facts alleged in pleadings and on motions. The ACLU says such a policy still amounts to a ‘gag’ order.
(File photo)

Baltimore will stop imposing “gag” orders on people who settle lawsuits with the city, Mayor Bernard C. “Jack” Young announced Monday, but the ACLU of Maryland called the step a “meaningless sham” that “changes nothing.”

Young signed an executive order Friday declaring it the “policy of the Mayor and City Council of Baltimore that unreasonable constraints on free speech rights are categorically contrary to the best interests of the City and its residents.” Such constraints “will not be employed in the Release and Settlement Agreements routinely executed in the settlement of litigation against the City.”

The order also purports to invalidate gag orders in past settlement agreements, according to a news release.

Baltimore City Solicitor Andre M. Davis confirmed Monday that the city will no longer enforce the clause, which restricted a plaintiff’s comments about a lawsuit to the fact that a settlement had been reached. In July, the 4th U.S. Circuit Court of Appeals found the language violated the First Amendment and is void.

The appellate panel voted 2-1 to reverse a lower court decision tossing out the lawsuit and concluded that enforcement of the gag order at issue “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.” The full 4th Circuit bench declined to undertake a review of the decision.

Davis said the city will continue using language it began to include after he became city solicitor in September 2017, which limits comments to the facts alleged in pleadings and motions filed with the court.

“The language we’re using now is perfectly compatible with and consistent with the executive order,” Davis said.

But David Rocah, senior staff attorney at the ACLU of Maryland, called the executive order a “farce” and said the new language was also unconstitutional.

“The operative language does not actually prohibit gag orders, it prohibits unreasonable gag orders,” Rocah said. “This order is written very carefully to allow (Davis) to continue to defend that indefensible position and to continue the litigation.”

Limiting individuals to the substance of lawsuit filings will still make them hesitant to speak, Rocah said.

“There is no reason to do that unless you are trying to stifle people from speaking, which is precisely what (Davis’) specific goal has been for years,” Rocah said.

He also said the ACLU has seen settlement agreements since 2017 with language “just as bad” as what they challenged in their lawsuit.

Rocah was also critical of the claim that the executive order voids the gag order language in past settlement agreements, arguing that the order itself is silent on the issue. The 4th Circuit decision effectively voided the language, he said, but people who previously settled with the city don’t know that and should be assured of it in writing.

Davis said earlier this month that the city would not appeal the 4th Circuit decision to the U.S. Supreme Court but will instead return to the trial court for further proceedings on the case. A phone conference with the judge is scheduled for Thursday, according to electronic court filings.

The lawsuit does not address the language the city has been using since late 2017. Davis said he changed the language “as soon as I got here” because he did not like it but defended it in court to preserve “institutional integrity.”

“I defended that lawsuit. I absolutely defended that lawsuit no matter how I felt about that language,” he said. “My job is to protect the mayor and City Council of Baltimore and the interests of the citizens of Baltimore.”

The executive order announcement comes the same day that a public hearing is scheduled on a city bill to ban the use of gag orders and prohibit the city from enforcing or threatening to enforce past contracts containing the language. The hearing is in the Public Safety Committee at 5 p.m.

Council President Brandon M. Scott, a co-sponsor of the bill, said Monday in a statement that he still planned to pursue the legislation to “ensure future mayors of Baltimore do not have the power to arbitrarily reverse course” on the issue. Scott thanked Young for his actions.

Councilwoman Shannon Sneed, Scott’s co-sponsor, echoed Scott’s comments, saying she remained “committed to passing this legislation” and calling it “critical to ensuring non-disclosure agreements are not used to silence residents who have experienced an injustice.”

The bill specifically states that any settlement of a claim for police misconduct of unlawful discrimination cannot have “a provision requiring a claimant to waive the claimant’s right to make any statement” about the mayor, City Council, agency, official, facts of the claim or terms of the settlement.

In a letter to the City Council on Monday, Davis said that the bill “impinges upon certain powers granted by the Charter” by telling his office how to settle lawsuits and by preventing the Board of Estimates from exercising its discretion to settle claims. The letter concludes that Davis’ office cannot approve the bill for form and legal sufficiency.

Rocah said that the City Council is permitted to determine city policy and that he disagrees with the city Law Department’s analysis of the legislation.

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