During the Reagan-Bush Administration, successive Secretaries of Labor correctly held that there can be no gag orders in whistleblower case settlements. Every U.S. Department of Labor Administrative Law Judge must review whistleblower settlements before they can be approved by the Administrative Review Board. No. Gag. Orders.
Yet in Article III federal courts and many state courts, justice is for sale. Victims of medical malpractice, medical devices and other defective produces, and police brutality and other torts, can be forced to accept money for silence.
This is morally and legally wrong. The Fourth Circuit is right. Every court in the land must reject gag order settlements as contracts against public policy.
Here in St. Johns County, Sheriff DAVID SHOAR has settled cases, like the Ford Street incident case (settled for $275,000) with the belief he could keep them secret. The rebarbative reprobate is wrong, again.
From FindLaw:
4th Circuit: Police Brutality Settlements Cannot Hinge on Keeping Quiet
Advocates for free speech and government transparency scored a big win in July with a decision by the Fourth Circuit that the City of Baltimore cannot force victims of police brutality to choose between a settlement and speaking out.
The lawsuit dates back all the way to 2012 when Ashley Overbey, then 25 years old, was beaten by police officers responding to a burglary report that Overbey herself called in. Overbey settled her claims against the City of Baltimore for $63,000. But, when she shared her story with the Baltimore Sun for a series on police misconduct the city invoked a clause in its settlement agreements that prohibits public statements on the incident that triggers a lawsuit.
In response, the city withheld half of Overbey’s settlement funds – more than $30,000.
When A Trade-Off Looks A Lot Like Hush Money
The city argued that, in accepting the settlement, Overby had sold her speech rights with an option to repurchase them – and by talking to the press, she had exercised that right. However, the Fourth Circuit disagreed, finding that characterizing the second half of Overby’s settlement sum in this way made it sound a lot like hush money. Moreover, the city’s interests in settling lawsuits or avoiding harmful publicity were not enough to justify this type of gag order.
The public undoubtedly has an interest in what government officials, including law enforcement, are doing. By conditioning a police brutality settlement on confidentiality, the government could sweep far more of these cases under the rug. And nothing would ever change.
#MeToo Challenges Restrictions on Speech
Similar issues of non-disparagement and confidentiality have swirled around sexual harassment settlements as well. The #MeToo movement brought to light the use of non-disclosure agreements to silence survivors of sexual harassment and allow abusers to keep their jobs. Some made employees sign an NDA as a condition of getting or keeping their job; others attached non-disclosures to settlement agreements similar to Overbey’s.
In 2018, lawmakers in several states introduced legislation to restrict how employers can use NDA’s in sexual misconduct cases. Between these new laws and decisions like the one in Overbey’s case, perhaps the tide is turning in support of those unwilling to keep quiet about abuses of power.
Related Resources:
- New California Transparency Law Reveals Police Officer Misconduct (FindLaw’s FindLaw Blotter)
- Excessive Force and Police Brutality (FindLaw’s Learn About the Law)
- Judge Rules Trump Campaign NDA Unenforceable Regarding Sexual Harassment Claims (FindLaw’s Decided)
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