Police

At Least You Can Talk Smack About The Cops After They Beat You Up

A nice Fourth Circuit ruling against gag orders.

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(Image via Getty)

Hopefully, the country will continue to learn about the odiousness of nondisclosure agreements and non-disparagement clauses. Whatever other utility they serve, they’re being used to silence victims at the behest of more powerful interests. People have started thinking about these agreements a lot in light of #MeToo. Yesterday, the Fourth Circuit struck down gag orders as part of police settlements, opening a small window for more coverage of police brutality.

The case, Overbey v. Baltimore, arose after Ashley Overbey called the police to report a burglary. The police beat her up and arrested her.

I suppose I should say that Overbey is a black woman, but if you’ve been paying attention to America, you don’t really need me to tell you that.

Overbey settled her case for $63,000, and signed a non-disparagement agreement. Courthouse News Service picks up the story from there:

Overbey’s story was featured in a 2014 Baltimore Sun article about the city’s excessive-force settlements, and when Overbey defended herself from racist trolls commenting on the newspaper’s now-shuttered online public comment forum, the city withheld half her settlement for violating the nondisparagement clause.

To recap: black woman who called police for help was beat up by police, settled, then got beat up by racist trolls, defended herself, and the police tried to withhold half of her settlement.

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The Fourth Circuit did not like this:

“We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights and that strong public interests rooted in the First Amendment make it unenforceable and void,” U.S. Circuit Judge Henry Floyd wrote, joined by Judge Stephanie Thacker. Judge Marvin Quattlebaum dissented.

The city’s argument — that Overbey was merely exercising her right to refrain from speech in exchange for money — turns previous free speech precedent on its head, the majority ruled.

“At its heart, the right to refrain from speaking is concerned with preventing the government from compelling individuals to mouth support for views they find objectionable,” Floyd wrote, citing the 1988 U.S. Supreme Court decision Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc.

“Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because none of the interests protected by the right to refrain from speaking were ever at stake in the case.”

These gag orders have to stop. Whatever public interest is derived by encouraging parties to settle is outweighed by their use to silence victims, especially in a social media infused world where victims can be bullied and ostracized without even being able to speak up in their own defense.

And that’s just generally. When it comes to the police specifically, nothing is gained from letting them to continue to hide their brutal actions from the general public.

Gag Order Not Enforceable in Police Brutality Settlement [Courthouse News Service]

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Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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