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U.S. Court of Appeals rules gag orders are unconstitutional, unenforceable

Posted: 8:02 PM, Jul 11, 2019
Updated: 2019-07-11 20:02:44-04
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BALTIMORE — The U.S. Court of Appeals for the Fourth Circuit has ruled that Baltimore City's practice of requiring non-disclosure agreements or "gag orders" on people settling police misconduct cases against BPD violates the First Amendment.

The ruling holds that gag orders equate to hush money to keep victims quiet, making them unconstitutional.

Overbey v. Mayor of Baltimore was brought by Ashley Overbey Underwood, a woman who was denied half of her settlement award after responding to comments online about her experience of being brutalized by Baltimore Police.

“I stood up for what’s right and I am absolutely ecstatic about this ruling in favor of the people and their free speech rights,” said Underwood. “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. It gives me hope that we can see change for people and movement for police reform.”

The U.S. Court of Appeals decision makes clear:

[W]hen 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. The First Amendment is meant to serve as a bulwark against such exercises of government power.

The appeals decision holds that the settlement agreement amounts to a waiver of her First Amendment rights.