In the United States, civil trials are disappearing.1 Instead of litigating disputes in court, parties have increasingly turned to private settlements and other avenues of private dispute resolution. One result of this trend is that systemic discrimination and other harms that once might have been revealed in public trials have been obscured through sealed settlements and nondisparagement provisions.2 Such provisions are not uncommon; Baltimore has inserted nondisparagement clauses in ninety-five percent of recent settlement agreements with plaintiffs “alleging police misconduct.”3 Recently, in Overbey v. Mayor of Baltimore,4 the Fourth Circuit found that the First Amendment prohibited enforcement of a nondisparagement clause in a settlement agreement between a civil rights plaintiff and the City of Baltimore.5 In doing so, the court emphasized that the substance rather than the form of the restriction of speech is what determines whether it conflicts with the First Amendment.6 This approach both preserves the benefits of private contracts and ensures accountability for widespread violations of civil rights.
In April 2012, Ashley Overbey called the police to report a burglary.7 Upon arrival, three officers from the Baltimore Police Department (BPD) treated her as a perpetrator: they allegedly “grabbed [her] by her hair, twisted her arm behind her back, . . . violently slapped and punched her,” and tased her.8 The BPD officers then arrested Overbey for assault and resisting arrest — she was imprisoned for twenty-four hours9 before the city dropped all charges against her.10 Following her release, Overbey brought claims of false arrest, false imprisonment, battery, and malicious prosecution against the arresting officers and the City of Baltimore in the Circuit Court for Baltimore City.11 After two years of litigation, Overbey reached a settlement agreement with the city for $63,000.12 By the time she signed this agreement, she was homeless.13
The settlement agreement included a nondisparagement clause, which stipulated that Overbey agreed to refrain from publicly discussing the case and “defaming and/or disparaging” the city or the officers involved in her arrest.14 By contrast, the settlement agreement did not restrain the City of Baltimore from publicly discussing the case.15 The agreement also provided that the city would be “entitled to a refund of fifty percent” of the settlement price if Overbey breached the nondisparagement clause.16 As the settlement was pending, the Baltimore Sun published an article that included a photograph of Overbey with other identifying details and a quote from the City Solicitor indicating she had been abrasive with the responding officers.17 This article drew several “anonymous, race-inflected” online comments.18 In response, Overbey posted replies to the comments defending herself.19 The city, unilaterally concluding that her comments violated her settlement agreement, withheld half of Overbey’s settlement.20
Overbey sued the City of Baltimore and the BPD in the United States District Court for the District of Maryland seeking injunctive and declaratory relief for a violation of the First Amendment.21 The Baltimore Brew — a local newspaper — joined Overbey’s suit, alleging that the BPD’s policy of including nondisparagement provisions in settlement agreements unconstitutionally restricted the Brew’s “ability to fully and accurately report on the issue of police brutality and abuse of power in Baltimore.”22 Following a hearing on the issues raised in the defendants’ motions to dismiss, the district court dismissed the case.23 First, the court found that the BPD was not a proper party to the suit24 and the Brew lacked standing to sue.25 The district court then granted the city’s motion for summary judgment, holding that Overbey validly waived her First Amendment rights because she was represented by an attorney when she signed the agreement and had not been “coerced in any way.”26 Further, the court noted that the public’s interest in transparency and accountability was not undermined by enforcement of the provision because the city had other procedures holding BPD officers accountable.27 The court rejected Overbey’s argument that “the provision was a product of unequal bargaining power,” stating that “the fact that Plaintiff Overbey was impoverished at the time” did not affect the validity of the agreement.28
In a panel opinion written by Judge Floyd,29 the Fourth Circuit reversed the lower court’s decision and remanded the case for additional proceedings.30 First, the court rejected the city’s argument that Overbey had exercised an affirmative right not to speak in signing the contract, concluding that she had instead waived her constitutional right to speak.31 Then, the Fourth Circuit turned to the question of enforceability.32 The court concluded that to be valid, a waiver of constitutional rights must satisfy two conditions: (1) the waiver must have been knowing and voluntary and (2) the waiver must not undermine the public interest in protecting the constitutional right at stake.33 The court limited its analysis to the second prong, deciding that strong First Amendment interests in “debate on public issues” and stopping the government from “us[ing] its power . . . to curb speech that is not to its liking” were sufficient to render the provision void.34 The court highlighted the steps the city took to silence Overbey: the city “ma[de] a police-misconduct claimant’s silence . . . a condition of settlement,” “retain[ed] for itself the unilateral ability to determine whether the claimant has broken her promise,” and attempted to “enforce the claimant’s promise by, in essence, holding her civilly liable.”35 Because the court found that the public’s First Amendment interests in protecting Overbey’s speech outweighed the city’s interest in enforcing the agreement as written,36 it did not reach the question of whether Overbey waived her rights “knowingly and voluntarily.”37 Finally, the court concluded that the Brew plausibly alleged constitutional standing.38 If the allegations were true, the court reasoned, the city’s policy prevented “willing speakers” from sharing information with the Brew — potential interviewees had refused to speak about their experiences because they believed they were bound by the terms of their settlement agreements.39 Consequently, these agreements may have frustrated the Brew’s legally protected interest in newsgathering, creating plausible constitutional standing.40
Judge Quattlebaum dissented.41 He argued that the majority failed to engage with the specific factual circumstances surrounding the settlement agreement.42 In particular, he emphasized that the settlement agreement prevented Overbey from speaking out about a single interaction with the police, and did not prevent her from engaging in public debate about police violence or public policy more broadly.43 He also argued that the agreement did not actually prohibit her from speaking, but rather gave her the option to speak in exchange for less money — emphasizing that she had a right to choose not to speak.44 Lastly, he noted that the public had sufficient information about her case from the initial complaint and the terms of the settlement agreement.45 For these reasons, he concluded that the plaintiff’s First Amendment interests were minimal compared to the city’s interests in finality, ensuring Overbey’s silence, and preserving certainty of contract.46
The Fourth Circuit’s approach indicated that the relevant question in determining whether a restriction on speech violates the First Amendment is not how speech is being restricted, but why. This was the right approach — the context in which this case arose shows that speech, protests, and criticism were necessary to ensure accountability for the BPD’s civil rights abuses. In rejecting the argument that the justifications underlying private settlements alone outweigh First Amendment interests, the Fourth Circuit avoided further shielding the city from accountability while preserving possible benefits of constitutional waivers in other contexts.
In deciding how heavily to weigh First Amendment interests in its balancing test, the Fourth Circuit emphasized the content of the speech prohibited by the nondisparagement clause rather than the fact that a contract was used. Case law preceding Overbey indicates that the government has more latitude to restrict speech by contract than it might by other means.47 For example, in another case concerning a nondisparagement clause in a settlement agreement of a civil rights suit alleging race discrimination, this time between an employee and a government employer, the Sixth Circuit found the First Amendment waiver enforceable simply because it was limited to speech relating to the suit and was made “voluntarily.”48 The lower court and the dissent in Overbey tried to draw this line by weighing heavily the interests underlying enforcement of all contracts.49
But the majority rejected the lower court’s approach, instead emphasizing that speech on matters of public concern typically receives heightened First Amendment protection in other contexts.50 Rather than invoking precedent involving other contractual restrictions of constitutional rights, the Fourth Circuit cited cases where the Supreme Court found a statutory restriction51 and a public official’s civil libel action52 unconstitutional. As speech exposing abuses of government power has been given strong protections when restricted in other ways, the court found strong First Amendment interests here as well.53 This outcome is consistent with other Fourth Circuit decisions providing greater protections for speech that exposes “serious governmental misconduct,” particularly by law enforcement officials.54
The majority’s approach does not imperil all government confidentiality agreements and nondisparagement clauses, as the dissent suggested it might.55 Rather, the decision highlighted that none of the justifications underlying enforcement of speech restrictions in other agreements applied to the settlement agreement in this case. Courts have recognized that there can be strong reasons for enforcing contractual waivers of First Amendment rights. For instance, the Supreme Court has indicated public employees have weaker First Amendment protections for speech that implicates national security.56 The Fourth Circuit explicitly distinguished those cases from Overbey, noting that the nondisparagement clause did not deal with “confidential or sensitive information.”57 Interests in individual privacy also underlie enforcement of some government confidentiality agreements,58 but nonenforcement in this case did not compromise those interests. Lastly, some commentators have suggested that “denying plaintiffs the right to sell their silence may deprive plaintiffs of their best bargaining chip for achieving a favorable settlement,” undermining individual autonomy.59 The majority suggested that this interest will cut in favor of enforcement in some cases, but concluded that a speech waiver likely has a negligible effect on “the outcome of settlement negotiations in a police-misconduct suit,” which is motivated by many factors.60
The context of this case shows that the line drawn by the majority was the right one — a different approach might have shielded local public officials from accountability, contrary to one of the underlying purposes of the First Amendment.61 The officers’ alleged assault of Overbey, a black woman living in Baltimore, reflected a broader trend of discriminatory policing and unreasonable force against black communities in Baltimore over the last decade. In a report published in 2016, the U.S. Department of Justice (DOJ) concluded that these “systemic constitutional and statutory violations [were] rooted in structural failures.”62 The BPD shielded itself from criticism by restricting access to information: it “conducted virtually no analysis of its own data to assess the impact of its enforcement activities on African American communities” and “failed to effectively investigate complaints alleging racial bias — often misclassifying complaints to preclude any meaningful investigation.”63 The report revealed that one-sided nondisparagement clauses were one tool the city used in a larger effort to maintain secrecy about its civil rights violations, preventing reform.64 This secrecy was overcome only after protests and demands from civil rights advocates following Freddie Gray’s death at the hands of BPD officers garnered national attention and pushed the DOJ to investigate the BPD.65 Thus, a surge of speech, protests, and criticism of public officials from the affected communities — all activities the First Amendment was intended to protect66 — caused the BPD to acknowledge years of civil rights violations.
There are cases in which it will make sense to prioritize contract law over free speech. But the rigid application of contract principles without consideration of the underlying justifications for the restriction of speech could seriously undermine government accountability, especially as more and more civil cases are resolved through private avenues.67 The Fourth Circuit’s approach preserves the benefits of certain kinds of waivers of speech while also requiring something more than a vague appeal to “freedom of contract” where the suppressed speech is necessary to sustain democratic discourse.68 Future courts should likewise consider carefully the purpose and content of a First Amendment waiver where the repeated use of such waivers might impede accountability for serious public harms.