U.S. Court of Appeals: City’s ‘gag orders’ in BPD misconduct settlements violate 1st Amendment

Reversing an earlier ruling by a lower court, a panel of federal appellate judges today sided with a Baltimore woman and local news website the Baltimore Brew in a free speech lawsuit against the Baltimore Police Department.

The publication and the woman, Ashley Overbey, sued the city over its frequent use of gag orders in settlements for past police misconduct lawsuits, arguing they violate accusers’ First Amendment rights and hamper the press in obtaining crucial details to accurately report on such cases.

A three-judge panel reversed a decision by two different U.S. District Court judges—the case was reopened, only for a second judge to rule the same way—to throw the case out. Two of the three appellate judges agreed those orders, signed by most plaintiffs when they settle with the city in police misconduct claims, amount to a “waiver of [their] First Amendment rights.”

The judges agreed in part with the Brew as well, which argued the city’s “pervasive” use of the clauses “has interfered with its right to receive newsworthy information from willing speakers.”

The case now goes back to the district court. Deborah Jeon, legal director for the ACLU of Maryland, which helped to represent Overbey and the Brew, said it’s being remanded for procedural reasons. The lower court will inevitably have to issue a judgment that concurs with the appeals court’s ruling.

“Basically we would move for judgment in our favor, and also there would be further proceedings about damages and other relief,” Jeon said.

The term “gag orders” refers to non-disparagement clauses, which the city has regularly written into settlements for police misconduct lawsuits. In Overbey’s case, she had sued BPD for false arrest and physical abuse after alleging three officers beat, choked and tased her after she reported a robbery in 2012, sending her to the hospital. Police at first charged her with six counts of assault and one count of resisting arrest, but later dropped the charges. Overbey sued, and two years later, settled with the city for $63,000.

But under the non-disparagement clause in her deal, she was entitled to that sum only if she did not publicly remark on the case; if she didn’t comply, she would receive half, or $31,500. Overbey broke the agreement by publicly commenting on the case, defending herself in response to online comments left on a Baltimore Sun story in 2014.

“I am the woman who this article is talking about AND THE POLICE WERE WRONG!!” she wrote. She lost half of her settlement as a result.

Overbey and the Brew filed a lawsuit in June 2017, with legal support from the ACLU of Maryland and several attorneys from the private law firm Crowell and Moring LLP.

The city moved to toss the case a month later, arguing Overbey had signed and then violated her settlement order, and that the Brew lacked standing to sue altogether. Now-retired Judge Frederick Motz tersely agreed with the city in October 2017, writing that the clause was valid and did not violate the First Amendment.

U.S. District Judge James Bredar reopened the case a little over a week later, assigning it to Judge Marvin Garbis. He ended up agreeing with Motz anyway, and tossed the suit in late November. The Brew and Overbey appealed to the higher court, whose three-judge panel issued its ruling today.

Judge Henry Floyd wrote in a majority opinion that hanging half of a settlement over Overbey’s and other plaintiffs’ heads for publicly commenting on a case amounts to “hush money.”

“We have 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,” Floyd wrote, with Judge Stephanie Thacker concurring. “We are not eager to get into that business now.”

Judge A. Marvin Quattlebaum disagreed, writing that First Amendment interests are important but do not void the validity of non-disparagement clauses, and noting Overbey agreed to the terms of her settlement “knowingly and voluntarily.”

On their “hush money” point, Quattlebaum was critical: “Harsh words for the principle that it is unfair for parties who enter agreements freely to later change their mind and seek to avoid the very terms to which they agreed. Perhaps a better description would be that Overbey cannot have her cake and eat it too.”

ACLU Executive Director Dana Vickers Shelley celebrated the appellate ruling as a win for minorities, who she said make up the vast majority of plaintiffs in police misconduct cases.

“For too long, the First Amendment has failed to protect the voices of communities who have been systematically suppressed,” she said in a statement. “In Baltimore, this has been Black and Brown residents who have been denied their right to share their stories of surviving police abuse in order to get any measure of justice from the government—but no more.”

Brew publisher and editor Fern Shen said in a statement, “We hope [the panel’s] legal analysis—demonstrating the harm these agreements do to individuals and to the press as it reports on this extremely important city issue—will prevail as the case moves forward.”

Baltimore’s chief lawyer, City Solicitor Andre Davis, said he’s “disappointed” by that decision, and plans to petition for the case to be heard by the entire federal appellate court, which has 15 judges. (Davis himself served on U.S. Court of Appeals for the Fourth District prior to his appointment to Baltimore’s solicitor post in May 2017.)

“The City believes the dissenting judge on the panel provides the correct analysis of the case, as did the two lower court judges who earlier ruled in favor of the City,” he said in a statement. “We will file a timely a request that the case be reheard by all fifteen judges on the Court.”

Jeon noted it’s extremely rare for an appellate court’s to entertain such a request. “Normally, those are very quickly rejected.”