City Solicitor Andre M. Davis today asked the Fourth Circuit Court of Appeals for a rehearing, blasting an earlier court panel ruling against Baltimore’s use of “gag orders” in police misconduct settlements  as”an extraordinary reconceptualization of the work done by the First Amendment.”

“The panel majority in this case has redefined the very meaning of liberty, infantilized less wealthy litigants even where they are represented by counsel of their own choosing, and made it categorically impossible, as a matter of federal constitutional law, for state and local government employees to protect their interests in avoiding the taint of defamatory utterances by litigants who have never proven in a court of law that they actually suffered any violation of their rights at the hands of those employees.”

That’s the opening salvo in the city’s petition, filed this afternoon in a case that originates from a 2017 lawsuit by police misconduct claimant Ashley Overbey Underwood and this website, Baltimore Brew.

A three-judge panel overturned a lower court ruling and agreed with Underwood and The Brew, calling Baltimore’s non-disparagement agreements unconstitutional and “unenforceable.”

Today’s request is for the court to agree to a rare en banc review.

If the request were granted by a majority of the judges in active service, the panel’s decision would be vacated and the case heard again by the full court.

In an odd twist, City Council President Brandon M. Scott and a majority of the Council yesterday came out in support of a new bill that would end the gag order requirement.

The city’s action “will not impact our decision to move forward with this legislation in the City Council,” Scott said today.

Another twist: Davis was a judge on the Fourth Circuit before coming to work for Baltimore as its chief lawyer in 2017.

Origin of the Lawsuit

In the original suit brought by the ACLU of Maryland and the D.C. law firm of Crowell & Moring, Underwood protested the city’s decision to withhold half her settlement after she responded to comments in a Baltimore Sun blog site about her case.

(Underwood filed the case when her last name was Overbey but no longer goes by that name. The city’s petition continues to refer to her as Overbey.)

• Ending gag orders a step toward reforming Baltimore police, lawmakers say (7/23/19)

Underwood had sued after she said city police officers responding to her call of a burglary at her home brutally beat her and her mother. Like other litigants making such claims, Overbey was required to sign a non-disclosure agreement in order to receive a settlement.

Together with The Brew, Underwood filed suit against the city, arguing that the policy restricts the First Amendment right of citizens to speak and of the news media to report on an issue of public importance.

Today’s 23-page petition by Davis said that the majority wrongly accepted the petitioners claim that Underwood was unable to freely exercise her right to speak.

The city frames the non-disclosure agreements as a matter of contract law, not free speech rights.

“If she waived anything, it was simply the right to collect the full settlement amount negotiated by the parties,” Davis wrote, arguing that her decision to speak or not to speak was voluntary.

“That she would get paid more for one choice than the other does not make that choice any less voluntary and knowing or her speech any less free,” the petition stated.

Not Stifling Speech

As it has argued in lower court filings, the city framed the non-disclosure agreements as a matter of contract law, not free speech rights.

“To equate the violation of a contract with the violation of the Constitution” is wrong, Davis argued, and “not something this Court has previously countenanced.”

Where the majority looks upon the city’s non-disparagement clause a prohibition on speech, his petition labels it instead “a liquidated damages clause.”

Davis said the court panel grossly overstates the media’s First Amendment right.

Citing “robust and vigorous ongoing debate, the flood of news coverage and reform efforts” underway, he argued that “the potential for a non-disparagement clause to stifle debate on police misconduct is essentially non-existent.”

Scolding the majority for labeling the city’s gag order policy as “hush money,” Davis noted that public employees – and “especially law enforcement officers” – sometimes face false and malicious accusations of misconduct in the course of simply trying to do their jobs.

“The panel’s decision makes it unconstitutional for their employers to try to prevent such defamation,” he wrote.

“With respect to The Brew,” Davis added, “the panel majority grossly overstates the media’s First Amendment right to ‘gather news.’”

He continued, “The constitutionally protected interest is not, as the majority describes it, the ‘right to receive newsworthy information from willing speakers,’” but rather, the more limited right of the press to “obtain access where the public is entitled to access.”