City May Not Bargain for Certain Speech Restrictions When Settling Lawsuits Against Police Department

The First Amendment makes such waivers of plaintiff's free speech rights unenforceable.

|The Volokh Conspiracy |

So the Fourth Circuit held (by a 2-to-1 vote) Thursday. The case involved a stock provision in settlements with Baltimore, under which settling plaintiffs "promise not to speak to the media about either their underlying allegations or the settlement process itself" on pain of losing half the settlement.

First, the underlying allegations, from Overbey v. Mayor & City Council of Baltimore (as usual in my posts, I note moved text with braces, { and }):

Ashley Overbey sued three officers of the Baltimore Police Department (BPD), alleging that the officers had beaten, tased, verbally abused, and needlessly arrested her in her own home after she called 911 to report a burglary…. Her case ground through the system for about two years, during which [Overbey alleges] she and her children became homeless—partly because Overbey's arrest record made it difficult for her to find work.

Eventually, following her attorney's advice, Overbey agreed to settle her suit for $63,000. The parties to the settlement agreement included both the officers named in Overbey's complaint and the City itself. The City was a party to the agreement because, pursuant to Maryland law, it represents the BPD's interests in settling claims against BPD officers.

As in 95% of settlement agreements between the City and persons alleging police misconduct, Overbey's settlement agreement included what we will call a "non- disparagement clause." This clause required Overbey to "limit [her] public comments" regarding her lawsuit "to the fact that a satisfactory settlement occurred involving the Parties." It prohibited her from "discussing [with the news media] any opinions, facts or allegations in any way connected to" her case, her underlying allegations, or the settlement process. And it provided that if Overbey were to ever make a prohibited comment regarding her lawsuit, the City would be entitled to a refund of half of her settlement. The clause placed no restriction on the City's freedom to speak about the case.

After Overbey signed the settlement agreement, the agreement went before the City's Board of Estimates for approval. While approval was pending, a local newspaper, the Baltimore Sun, published Overbey's name, her photograph, her address, and the amount of her proposed settlement in a report on payouts planned for police-misconduct claimants. The Sun's report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as "hostile" during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

The Sun's story accumulated several anonymous, race-inflected comments implying that Overbey had initiated a confrontation with the police in hopes of getting a payout from the City. Overbey posted responses to several such comments, insisting that the police had been in the wrong and describing some of the injuries she had suffered.

The City determined that Overbey's online comments on the Sun article violated the non-disparagement clause of the settlement agreement. Consequently, once Overbey's settlement was approved, the City remitted only half of the agreed payment—$31,500— to Overbey's attorney. It retained the other half as "liquidated damages." …

Unconstitutional, the panel majority held, in an opinion by Judge Henry Franklin, joined by Judge Stephanie Thacker; here's an excerpt:

It is well-settled that a person may choose to waive certain constitutional rights pursuant to a contract with the government. Yet … the waiver of a constitutional right—even one that appears in an otherwise valid contract with the government—is enforceable … [only if,] under the circumstances, the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement…. [Here,] the City's asserted interests in enforcing Overbey's waiver of her First Amendment rights are outweighed by strong policy interests that are rooted in the First Amendment and counsel against the waiver's enforcement….

[E]nforcing the non-disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to the public's well-established First Amendment interest in "uninhibited, robust, and wide-open" debate on "public issues." …

Standing shoulder to shoulder with the citizenry's interest in uninhibited, robust debate on public issues is this nation's cautious "mistrust of governmental power." This mistrust is one of the "premise[s]" of the First Amendment, and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech. Indeed, when the government (1) makes a police-misconduct claimant's silence about her claims a condition of settlement; (2) obtains the claimant's promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant's promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking….

[None of] the City's asserted interests in enforcing the non-disparagement clause … are strong enough for the City to prevail. {We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and to which the speaker would not have had access but for a promise of confidentiality or other fiduciary obligation to the government. Cf. Snepp v. United States, 444 U.S. 507, 510 (1980).}

Initially, the City points out that it has an interest in using settlement agreements to reduce the time and money that it devotes to litigation, and that this interest favors enforcement of the non-disparagement clause. But as the Ninth Circuit has aptly explained, when a settlement agreement contains a waiver of a constitutional right, the government's general interest in using settlement agreements to expedite litigation is not enough to make the waiver enforceable—otherwise, no balance-of-interests test would be required. The City cannot succeed merely by invoking its general interest in settling lawsuits. It must point to additional interests that, under the circumstances, justify enforcing Overbey's waiver of her First Amendment rights.

To that end, the City … [argues] that one of the private interests protected by the First Amendment is the right not to speak. According to the City, the "individual autonomy" embodied by the right not to speak would be undermined if plaintiffs like Overbey could not use their right to silence as a bargaining chip during settlement negotiations. Thus, in the City's view, enforcement of the non-disparagement clause is consonant with, and essential to, individual First Amendment interests. We think not…. [T]he right to refrain from speaking has generally been construed as preventing the government from requiring private persons to speak in support of policies, causes, or ideas that they find objectionable. It is simply not implicated here: a limitation on the government's ability to purchase citizens' silence does not meaningfully compromise the "individual freedom of mind" protected by the right not to speak.

The City goes on to invoke the interests of the three police officers who were named as defendants in Overbey's first lawsuit, asserting that the officers have a personal interest "in clearing their names." We are not unsympathetic to this interest, but it does little to help the City's cause. The settlement agreement neither admits wrongdoing nor vindicates any of the parties involved. That is, neither the settlement agreement as a whole nor the non-disparagement clause in particular has the effect of proving that the officers did not act as Overbey alleges. Thus, to the extent that the officers have an interest in clearing their names, enforcing the non-disparagement clause will not help them. We conclude that the officers' interest in clearing their names does not weigh in favor of enforcement.

Additionally, the City urges that both it and the officers involved have an interest in avoiding "harmful publicity." It is well-established that "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials" can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle….

{[T]he City asserts that if Overbey were to prevail in the instant case, the City would "almost certainly" offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable. This, according to the City, would "reduce the number and mutual value of settlements." We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.

Aside from that concern, there are two factors that make the City's assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants' risk of exposure to high damages awards following a jury trial, the claimant's financial resources, and each side's appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey's in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey's settlement agreement has anything other than a conjectural and attenuated relationship to "the number and mutual value of [future, hypothetical] settlements."}

Finally, the City appeals to "fairness." As the City would have it, Overbey "sold her [speech] rights, with an option to buy them back, which she exercised, and now she has [her rights] again." Essentially, the City argues that half of Overbey's settlement sum was earmarked for her silence, and that it would be unfair for Overbey to collect that half of her money when she was not, in fact, silent. When the second half of Overbey's settlement sum is viewed in this light, it is difficult to see what distinguishes it from hush money. Needless to say, this does not work in the City's favor. 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. We are not eager to get into that business now….

Judge A. Marvin Quattlebaum Jr. dissented; here's an excerpt:

One of the bedrock principles of our country is the freedom of parties, public and private, to enter into agreements without fear that courts will re-write them if one side has a change of heart. Under this principle, parties have a right to rely on the certainty of contracts entered into knowingly and voluntarily. In my view, the majority opinion undermines those important principles.

While I join my colleagues in affirming the importance of the First Amendment and the public's interest in exposing police misconduct, such affirmation does not require us to find unenforceable the non- disparagement provision in the settlement agreement between Overbey and the defendants. Overby entered into the settlement agreement knowingly and voluntarily, and the interests in enforcing it outweigh any countervailing interests. Accordingly, I respectfully dissent….

First, it is important to note the narrow scope of the waiver. Under the non- disparagement provision, Overbey agreed not to speak about the facts of her specific case. The waiver did not restrict her from speaking about the Baltimore Police Department or police misconduct generally. Nor did it restrict her from speaking on a myriad of other public issues. It simply limited her ability to speak publicly about her case.

Second, the limitations in the non-disparagement clause did not actually bar Overbey from speaking about her case. There were just financial consequences—to which she agreed—of her choosing to speak. Under the agreement, she had a choice. She could abide by her promise not to talk about the case. If she did that, she would receive the full $63,000. Or she could do what she did—talk about the case. The consequence was that, since Overbey made that latter choice, the City was entitled to keep $31,500 of the $63,000 settlement amount.

Third, even without her public comments, the detailed allegations in Overbey's complaint and in the Department of Justice's 2016 report on police misconduct in Baltimore contain extensive information on this important issue. Critically, all of that information remains public. Likewise, the terms of the settlement agreement were made and remain public. The non-disparagement provision does not remove any of that information about police misconduct in Baltimore from the review and scrutiny of the public. It remains in the public square for discourse and debate. Thus, even if Overbey decided not to speak because of the non-disparagement provision, the public's interests would only have been minimally harmed.

Last, any impairment of the public's interests must be considered in relation to Overbey's other rights. Part and parcel with Overbey's right to speak is her right not to speak. Plainly, even without the non-disparagement provision, Overbey had the right not  to speak. If she had done that, the public's interest would have been equally impaired. The public's interests cannot legitimately be harmed by Overbey doing by written agreement what was her right in the first place….

On the other hand, the defendants have significant and legitimate interests in the enforcement of the non-disparagement clause. First, they have an interest in the finality of the litigation. Litigation serves a vital role in our legal system, but, for those in the midst of it, it is often unpleasant, expensive and distracting. For those and many other reasons, litigants at times decide that the best course for them is to compromise on a settlement rather than forging forward to trial. The defendants did just that in this case. They agreed to put the dispute behind them by entering into an agreement with terms that furthered their interest in finality. The non-disparagement provision was one of the terms.

Second, by agreeing to the settlement, the defendants gave up their opportunity for vindication by a judge or jury. Of course, there is no guarantee how the case would have turned out had it continued. That uncertainty is one of the reasons parties often agree to a settlement. But having given up the opportunity to be exonerated, the defendants have an interest in Overbey's accusations, which they denied, ending. The non-disparagement clause furthered this legitimate interest as well.

Third, the defendants have an interest in the certainty of their contract. As alluded to above, parties have a right to expect that plain and unambiguous terms of the contracts to which they enter, like the ones here, will be enforced. During the pendency of the case, when it was uncertain whether she would be awarded any money, Overbey decided it was a good idea to limit her public comments in return for additional settlement payments from the defendants. After the settlement, Overbey, with some money in hand, decided she no longer wanted to limit her comments. Despite that, she now seeks to not only keep the money she received, but also compel the City to pay the rest. Overbey seeks through the courts to re-write the agreement so that she will receive all the benefits of the agreement, but not all of the burdens. This is not the proper role for courts.

{Surprisingly, my good colleagues in the majority characterize this position as endorsing "hush money." 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.}

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  1. Clearly an unconstitutional condition. I’m shocked that there was a dissent. But maybe I shouldn’t be.

    1. I really want the dissent to be wrong but it’s not easy to point to an obvious legal error in his reasoning. This appears to be a case of constitutional balancing – the right to freely contract vs the right to freely speak.

      I would have preferred a decision that upheld the right to contract but then held that the punitive clauses were unconscionable. But that would require upending rather a lot of precedent.

      1. People have the right to freely contract with the government, but the government doesn’t have the ability to make or enforce certain contracts. Even though I might wish to be paid to refrain from criticizing the government, or to endorse a particular politician, or to convert to Christianity, or I might wish to pay the government to establish a particular religion, but that doesn’t mean that the government can enter into such contracts.

        1. None of your examples are real-world examples. Can you think of one that might actually happen?

    2. I agree with the dissent. I don’t think an individual engaged in litigation should be forced by a court to sacrifice his interests for the sake of what a court deems to be the public’s more important interest. That is what this court is doing by saying litigants can’t enter into these types of settlements. Presumably, this litigant suffered a real injury and really needed to be compensated. Presumably, he thought if he went to trial he might lose, even though he deserved to win — because, it cannot be denied, juries are not infallible.

      1. The individual is not sacrificing his interests. The city is.

        1. I disagree. He and the city are entering into a contract that they both think will benefit them. It is the court that is sacrificing his interests, and the city’s as well.

          1. No, the plaintiff did not think that it was in her best interests to be gagged. She thought getting the money (possibly less, possibly more than a jury would award) up front was in her interests.

            1. No, if she didn’t think that taking the settlement that included a gag order was in her best interests, she would not have taken the settlement. In the real world, if you want everything, then you go to trial.

              1. I think you’re deluding yourself here.

  2. The problem with the arguments in favor of enforcing this is that the government has endless (taxpayer) money, so they can always pay people to be quiet. There will always be a price at which a person will be willing to sign the non-disparagement, and with enforcement, the public would never find out about most of government malfeasance.

    1. I think we are going to have some right-left consensus on this one.

    2. “The problem with the arguments in favor of enforcing this is that the government has endless (taxpayer) money, so they can always pay people to be quiet.”

      They could even set up a special tax for this purpose. Say, $1000 a head, and if you voluntarily waive your right to criticize the government, they give you your $1000 back.

    3. In my state, we waive Fourth Amendment rights to get a driver’s license.

      1. “In my state, we waive Fourth Amendment rights to get a driver’s license.”

        All states actually.

        Driving is less important to people than saying bad things about a police department.

      2. Depends what you mean. In the places I’m familiar with, if you violate “implied consent” and don’t submit to a breathalyzer, they can take your license, but it’s not criminal.

  3. Doesn’t the form of the term show the slogans for what it is? The city gets to be judge, jury, and executioner in claim for breach by themselves. Only if they planned on using it improperly would that clause be there, and to omit payment for half of the settlement is the only part it could apply to.

    So if the city had included the silence clause in good faith it wouldn’t even be written like that. But since they must have known they couldn’t maintain such as action in court, they granted that power to themselves.

  4. Sounds about right.

    Buying a citizen’s silence, then attacking her in the press, then punishing her simply for replying to the attacks, regardless of the truth of the underlying situation – best to avoid this sort of thing by making First Amendment rights un-sellable in these sorts of circumstances.

    Also there’s the issue of the public’s right to know. The public got the views of Baltimore’s estimable public servants about how things wend down (even though they paid compensation), the public should be able to get the citizen’s response (except in cases of libel or slander, but that should go both ways).

  5. As a non lawyer, the essential problem seems to be that the settlement can bind one party but not the other. Ogelvey can agree but the City cannot control all of it’s employees and and agents.

    1. I think you are right about the one-sided nature being key. While I might not like it, I don’t see a problem with a litigant agreeing to a mutual non-disparagement clause because that litigant has no obligation to speak at all.
      But where is crosses the line with regards to the First Amendment is when government set up a situation where it can say whatever it wants and it has bought the silence of the person who could best refute the government’s claims. I would argue that this one-sided agreement qualifies as a form of censorship that is materially different from a mutual non-disparagement clause.

      Professor Volokh, do you have an opinion on this topic?

  6. Is she giving the money back?

    1. Why should she? The city put an illegal condition on the settlement, and that part of void. The rest of it stands.

      1. She gets the benefit of her bargain but the city does not?

        Nothing worse than someone who won’t stay bought.

        1. Illegal bargains don’t get enforced, that’s been the case for a few centuries now.

          1. Fine, then she can give the money back.

        2. Yes, that’s what happens when you put an illegal condition in a contract. You run the risk of it being severed and the rest of it remaining.

  7. I’d side with the dissent as well. I think the parties have the right to negotiate a settlement and a non-disparagement clause as part of that settlement is not necessarily an unconstitutional restriction.

    If the parties want to be able to continue to discuss the case publicly then they should be able to negotiate to that end. If one party wants to silence the other they should be able to pay for it.

    The Sun’s report quoted a statement made by the then-City Solicitor to the Board of Estimates in which the Solicitor characterized Overbey as “hostile” during her encounter with police—insinuating that Overbey, not the officers, had been at fault.

    Here’s the problem. Ms. Overbey had agreed to the settlement but the city had not. Then the city disparaged her before the settlement was formally approved.

    I think the court could have decided this case on the much narrower ground that the parties had agreed to the non-disparagement clause and the city had breached that clause, thereby freeing Ms. Overbey of her obligation to remain silent on the subject.

    1. I agree.

    2. The problem here is that by the terms of the contract, the non-disparagement clause wasn’t mutual, and the city was completely free to disparage the claimant.

      I suspect the patently one-sided nature of the agreement may have influenced the majority’s characterization of the transaction as hush money.

      But it does mean the city didn’t have any non-disparagement obligation, and hence didn’t breach one.

      1. the non-disparagement clause wasn’t mutual

        Well that’s just plain bad lawyerin’.

      2. > But it does mean the city didn’t have any non-disparagement obligation, and hence didn’t breach one.

        OTOH, I’d argue that the city waived any rights thereunder when its solicitor(!) talked to the media. Alternatively, the tried-and-true unconscionability doctrine.

  8. I tend to take the view that the public has no absolute constitutional right to every and any court proceeding. I think people are entitled to get particularly private matters, like marital disputes, resolved without the tabloids knowing every detail.

    But I don’t think that disputes with government, such as allegations of government misconduct, have the same privacy considerations. In general, at least as a policy or legislative matter, I’d tend to agree that police officers have no interest in having their dealings with citizens kept private sufficient to countermand those citizens’ right to speak.

    1. I agree that the legislature would have the power to prohibit such settlements.

  9. This is an important opinion. I’ve been on the lookout for this issue. It is a serious problem that defendants break the law and then pay off plaintiff victims to keep quiet, to the detriment of the rest of society. It is akin to having court records be sealed—also a problem, as we see, for example, in the Epstein sex case. It is not uncommon for universities to fire tenured professors for whistleblowing, etc. and then pay them off in a settlement to keep quiet. We see that cities do the same thing to keep official misconduct secret. These agreements are, I think, obviously contrary to public policy, and should be as unenforceable as a drug or prostitution or gambling contract.
    The opinion’s economics are all wrong, to be sure. These agreements clearly benefit plaintiff as well as defendant. It is third parties who are hurt.

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