In 2017, the ACLU of Maryland filed a case on behalf of the independent news website The Baltimore Brew and 30 year-old Baltimore resident Ashley Overbey challenging gag orders used in police brutality settlements.[1]The Baltimore Police department penalized Overbey by half of her settlement because she commented on a Baltimore Sun article regarding the facts of her police brutality case, despite being barred from doing so.[2]ACLU asserted, and the Fourth Circuit Court of Appeals agreed in their decision on July 11, 2017 the city’s policy of muzzling people who receive cash settlements in police brutality cases is unconstitutional, because it violates the First Amendment’s guarantee to free speech and free press.[3]

The Baltimore City Mayor Young’s Administration will not petition the Supreme Court to review the Fourth Circuit Court of Appeals ruling that the non-disparagement agreements added to Baltimore Police Department’s settlements are unconstitutional.[4]The City argued (and still maintains) that restrictions and confidentiality agreements are necessary so both the city and its police force can avoid harmful publicity.[5]However, after the Fourth Circuit issued their decision, the city announced that this issue is essentially moot because the non-disparagement language of police brutality settlements was amended, and allows citizens to speak freely.[6]

The city never mentioned this revision during trial, and the ACLU argues it does not render the non-disparagement clause constitutional.[7] The language still prohibits “a claimant and his or her agents, representatives, and attorneys from ‘any attempt to defame and or disparage the Released parties”.[8]In other words, claimants are still barred from making a statement that could amount to “reputational loss to the City of Baltimore” and still punishes violators with fines.[9] The Mayor has also spoken out against a Baltimore City Council Bill introduced the week after the ACLU won their case.[10]If passed, non-disparagement agreements would be barred from police settlements,[11]but Young claims the bill challenges powers granted to the Mayor by the city charter.[12]

Since 2009, the city has spent $35 million to settle police brutality cases.[13] Ninety-five percent of those settlements include terms barring claimants from speaking to the press, and until recently, from speaking out or sharing their story on social media.[14] The not so new occurrence of police brutality has become an especially acute issue for Baltimore City in recent years, and the Fourth Circuit Court of Appeals decision is a glaring comment on Baltimore’s need for police reform.

Cameron Stang is a second-year law student and Staff Editor with University of Baltimore Law Forum. Before attending classes in the evening, Cameron works as a Legal Marketing Editor for The Agora Companies focusing on FTC and SEC compliance and maintaining her clients’ protection under the Publisher’s exemption of the Invest Adviser’s Act of 1940. After graduation in May of 2022 with a concentration in Business Law and Copyright, Cameron intends to expand her role with The Agora Companies and work with local foundations who assist artists in protecting their work and strengthening their businesses.

[1]Baltimore’s Gag Orders in Police Misconduct Cases are Unconstitutional, Appeals Court, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Jul. 11, 2019, 3:28 PM) https://baltimorebrew.com/2019/07/11/baltimores-gag-orders-in-police-misconduct-cases-unconstitutional-appeals-court-rules/; see also Baltimore’s “Gag Order” in Police Settlements in Court, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Jun. 29, 2017, 3:00 PM), https://www.baltimorebrew.com/2017/06/29/baltimores-gag-order-in-police-settlements-challenged-in-court/; see also David Collins, ACLU Sues Police Departments on Behalf of Police Abuse Victims, WBALTV11 (Jul. 29,2017, 6:16 PM), https://www.wbaltv.com/article/aclu-sues-police-departments-on-behalf-of-police-abuse-victims/ 10241738#.

[2]Baltimore’s “Gag Order” in Police Settlements in Court, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Jun. 29, 2017, 3:00 PM), https://www.baltimorebrew.com/2017/06/29/baltimores-gag-order-in-police-settlements-challenged-in-court/.

[3]Id.

[4]Mark Reutter, Baltimore Won’t Pursue “Gag Order” Case to the Supreme Court, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Aug. 19, 2019, 3:50 PM), https://www.baltimorebrew.com/2019/08/29/baltimore-wont-pursue-gag-order-case-to-the-supreme-court/.

[5]Baltimore’s Gag Orders in Police Misconduct Cases are Unconstitutional, Appeals Court Rules, Supra, note 1.

[6]Baltimore’s Gag Orders in Police Misconduct Cases are Unconstitutional, Appeals Court Rules, Supra, note 1.

[7]Mark Reutter, ACLU Disputes Mayor’s Statement that Baltimore has Stopped Using Gag Orders, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Jul. 25, 2019, 11:52 AM), https://www.baltimorebrew.com/2019/07/25/aclu-disputes-mayors-statement-that-baltimore-has-stopped-using-gag-orders-in-police-settlements/.

[8]Id.

[9]Id.

[10]Fern Shen, Ending Gag Orders a Step Toward Reforming Baltimore Police Lawmakers Say, Bᴀʟᴛɪᴍᴏʀᴇ Bʀᴇᴡ (Jul. 23, 2019, 9:57 AM), https://www.baltimorebrew.com/2019/07/23/ending-gag-orders-a-step-toward-reforming-baltimore-police-lawmakers-say/

[11]Id.

[12]Mark Reutter, Baltimore Won’t Pursue “Gag Order” Case to the Supreme Court, supra note 7.

[13]Baltimore’s Gag Orders in Police Misconduct Cases are Unconstitutional, Appeals Court Rules, Supra, note 1.

[14]Baltimore’s Gag Orders in Police Misconduct Cases are Unconstitutional, Appeals Court Rules, Supra, note 1.