December 04, 2019 Top Story

First Amendment Bars Non-disparagement Clause in Settlement

City cannot reduce payment to victim of police abuse because of public comments

By John M. McNichols

The City of Baltimore cannot enforce a non-disparagement clause in its settlement agreement with a victim of police misconduct. In Overbey v. Mayor & City Council of Baltimore, a divided panel of the U.S. Court of Appeals for the Fourth Circuit held that the First Amendment rights of the victim and a local news organization trumped the city’s right to protect the reputations of its officers and to bring an end to public controversy. Although supportive of the outcome, ABA Section of Litigation leaders are doubtful that the decision portends a sea change in the use of non-disparagement clauses in civil settlements.

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Overbey’s Claims of Abuse by Police

Ashley Overbey brought federal and state claims against three Baltimore police officers who tasered and arrested her while responding to her 911 call. After years of litigation, she agreed to settle her case for $63,000. Although not a defendant in Overbey’s lawsuit, the city was a party to her settlement agreement, which included a clause requiring Overbey to “limit [her] public comments . . . to the fact that a satisfactory settlement occurred involving the Parties.” The agreement further provided that she would forfeit half her recovery if she failed to comply.

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