RICHMOND, Va. (CN) – After his client lost half of her misconduct settlement with Baltimore police because she posted about the case on Facebook, a lawyer told the Fourth Circuit on Wednesday that the nondisclosure agreement violated her free-speech rights.
“When police use force that is a public interest, and it’s newsworthy,” said Dan Wolff, a lawyer with the Washington firm Crowell & Moring who represents Ashley Overbey.
Pushing the federal appeals court for a reversal this morning at oral arguments, Wolff argued that Baltimore’s only interest in maintaining the nondisclosure agreement was keeping itself “out of the court of public opinion.”
“If the state or city tried to limit that speech legislatively, it would be struck down,” he said.
But U.S. Circuit Judge Marvin Quattlebaum, a Trump appointee, expressed doubts.
“She agreed to take and get money for [the settlement],” Quattlebaum said. “She has now changed her mind. … Just like you agree not to talk, why not agree to talk?”
Andre Davis, city solicitor for Baltimore’s Office of Law, called Overbey’s claim “audacious.”
He said the First Amendment is rich and important, but not magic.
“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.
Davis also expressed shock at the idea of federal courts getting involved in an “arm’s length agreement” between two parties.
Offering hypotheticals as to the need for the NDAs in settlements, Davis noted that the lack of a trial makes it impossibel to confirm what did or did not happen.
“The officers might have violated someone’s civil rights, maybe they didn’t,” he said.
A settlement deprives the possibility of factual closure, but he said both parties agree to the circumstances, “agree to find another way to resolve the matter,” to avoid costly and lengthy trials
Davis also pushed back on the idea that NDAs are used to obscure problematic litigation. Noting that Baltimore City Police have been working for years with the U.S. Department of Justice to address its history of civil rights violations, Davis noted that the agency offered to pull out and let the department manage themselves in 2016, but the city instead asked them to stay.
Overbey’s case has several other stakeholders. A local news website called Baltimore Brew that joined the original complaint contends that NDAs keep reporters from being able to fully cover police-brutality issues.
The Brew says that about 95 percent of city settlements involved NDAs, but Davis argued that the The Brew lacks standing.
Rebutting that claim, the publication’s founder and editor Fern Shen said in a statement the barrier the NDAs put between her reporters and the truth was more than enough to earn them the right to challenge the law.
“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.
Apart from Quattlebaum, Wednesday’s appellate panel in Richmond included U.S. Circuit Judges Stephanie Thacker and Henry Floyd. None of them signaled when they might rule on the case.