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Do Police Nondisclosure Agreements Violate Free Speech Rights?

By William Vogeler, Esq. on February 11, 2019 | Last updated on March 21, 2019

For an hour, the U.S. Fourth Circuit Court of Appeals became a court about public opinion.

The justices heard arguments about police misconduct, but they focused on a nondisclosure agreement. The plaintiff, who received a settlement from Baltimore police, lost half of it because she talked about it on social media.

In Overbey v. Baltimore Police Department, the plaintiff's lawyers argued the NDA violated her free speech rights. The city's attorney and a judge said, however, that she was paid for her silence.

"It's Newsworthy"

Dan Wolff, representing the plaintiff, said it would be unconstitutional if the city had legislated the restraint on speech. Police misconduct should not be hidden from the public by NDA.

"When police use force that is a public interest, it's newsworthy," Wolff argued.

Andre Davis, counsel for the city, disagreed. He said the NDA was an arms-length agreement, not a constitutional question.

"Just as a party has a right to speak, it also has the right to remain silent and assign value to that silence," he said.

Reporters' Standing

Judge Marvin Quattlebaum said Overby took the money, then changed her mind. It sounded like the court may affirm dismissal of the case.

However, a local news site joined in the case and published its opinion. The Baltimore Brew said NDAs prevent reporters from covering police-brutality cases.

At the hearing, the city's attorney said the reporters don't have standing. Fern Shen, editor and founder of the publication, said in a statement that the truth gives them standing.

"We have standing here as a media organization trying hard, as other outlets do, to present the fullest possible picture of an issue of great importance to the citizens of Baltimore," she said.

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