Overbey v. Baltimore (2019) Nondisclosure Agreements - Revision history

Rasmusen p1vaim: /* Documents */

2021-05-13T16:34:43Z

‎Documents

Rasmusen p1vaim: /* Documents */

2021-05-13T15:17:55Z

‎Documents

Rasmusen p1vaim: /* Documents */

2021-05-13T15:16:28Z

‎Documents

Rasmusen p1vaim at 15:09, 13 May 2021

2021-05-13T15:09:28Z

Rasmusen p1vaim: /* The Court's Reasoning */

2021-05-12T17:37:44Z

‎The Court's Reasoning

Rasmusen p1vaim: /* The City's Argument */

2021-05-12T17:36:03Z

‎The City's Argument

Rasmusen p1vaim: /* The Court's Attempt To Refute the City's Arguments */

2021-05-12T17:34:12Z

‎The Court's Attempt To Refute the City's Arguments

Rasmusen p1vaim: /* The Court's Attempt To Refute the City's Arguments */

2021-05-12T17:33:37Z

‎The Court's Attempt To Refute the City's Arguments

Rasmusen p1vaim: /* The Court's Attempt To Refute the City's Arguments */

2021-05-12T17:32:45Z

‎The Court's Attempt To Refute the City's Arguments

Rasmusen p1vaim: /* The Court's Attempt To Refute the City's Arguments */

2021-05-12T17:27:07Z

‎The Court's Attempt To Refute the City's Arguments

@@ Line 1: / Line 1: @@
 ==Documents==
-*(1) The [http://rasmusen.org/rasmapedia/rasmusen_Files/01_Complaint.Overby.pdf compaint]
+*(1) The [http://rasmusen.org/rasmapedia/rasmusen_Files/01_Complaint.Overby.pdf complaint]
-*(000) The [http://rasmusen.org/rasmapedia/rasmusen_Files/_Overbey_District_Court_docket_May2021.pdf docket] as of May 2021
+*(000) The [http://rasmusen.org/rasmapedia/rasmusen_Files/_Overbey_District_Court_docket_May2021.pdf     docket] as of May 2021
-*(22) The [http://rasmusen.org/rasmapedia/rasmusen_Files/22_Opening_Brief_by_Overbey.pdf opening brief by Overbey]
+*(22) The [http://rasmusen.org/rasmapedia/rasmusen_Files/22_Opening_Brief_by_Overbey.pdf    opening brief by Overbey]
 *(27) The [http://rasmusen.org/rasmapedia/rasmusen_Files/27_Overbey_AmicusReportsCOmmitee_brief.pdf AmicusReportsCOmmitee_brief.pdf]
 *(48) The [http://rasmusen.org/rasmapedia/rasmusen_Files/48_Respnose_brief_by_Baltimore.pdf Respnose_brief_by_Baltimore.pdf]

← Older revision		Revision as of 15:17, 13 May 2021
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	*(xx) The [http://rasmusen.org/rasmapedia/rasmusen_Files/0xxxxxt]		*(xx) The [http://rasmusen.org/rasmapedia/rasmusen_Files/0xxxxxt]

−		+	Notes:
		+	*(1) The complain does claim that the contract violates the common law prohibition on contracts against public policy, but that state law claim was not brought up on appeal.

@@ Line 1: / Line 1: @@
 ==Documents==
-*The[http://rasmusen.org/rasmapedia/rasmusen_Files/01_Complaint.Overby.pdf compaint]
+*(1) The [http://rasmusen.org/rasmapedia/rasmusen_Files/01_Complaint.Overby.pdf compaint]
@@ Line 7: / Line 17: @@
 Quotes below are from the 4th circuit appellate decision[https://cases.justia.com/federal/appellate-courts/ca4/17-2444/17-2444-2019-07-11.pdf?ts=1562869823 Overbey] (4th Circuit 2019) (cleaned up):
 ==The Facts and History==

← Older revision		Revision as of 15:09, 13 May 2021
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−	[https://cases.justia.com/federal/appellate-courts/ca4/17-2444/17-2444-2019-07-11.pdf?ts=1562869823 Overbey] (4th Circuit 2019) (cleaned up):	+
		+	==Documents==
		+	*The[http://rasmusen.org/rasmapedia/rasmusen_Files/01_Complaint.Overby.pdf compaint]
		+
		+
		+
		+
		+
		+
		+	Quotes below are from the 4th circuit appellate decision[https://cases.justia.com/federal/appellate-courts/ca4/17-2444/17-2444-2019-07-11.pdf?ts=1562869823 Overbey] (4th Circuit 2019) (cleaned up):
		+
		+

	==The Facts and History==		==The Facts and History==

@@ Line 107: / Line 107: @@
 ==The Court's Reasoning==
 <blockquote style="color:gray">
-*In other words, the right to refrain from speaking '''limits the government’s
+:In other words, the right to refrain from speaking '''limits the government’s ability to sanction or override a private individual’s preference for not making certain speech. T'''he First Amendment’s protection of this right advances our bedrock societal interest in '''“individual freedom of mind.”'''
-*Overbey’s promise not to speak about her case cannot be fairly characterized as an
+:Overbey’s promise not to speak about her case cannot be fairly characterized as an exercise of her right to refrain from speaking, because '''none of the interests protected by the right to refrain from speaking were ever at stake in this case. No one tried to compel Overbey to make speech she did ''not'' want to make;''' no one tried to punish Overbey for refusing to say something she did not want to say. Instead, Overbey agreed, on pain of contractual liability to the City, to curb her voluntary speech to meet the City’s specifications. In doing so, she waived the First Amendment protections that would have otherwise shielded her speech from government sanction.
 </blockquote>
 *(10) This is a bad argument. The Court is saying that the whole reason for the 1st Amendment is to prevent compelled speech, which is absurd. That is a secondary goal.
@@ Line 125: / Line 115: @@
 <blockquote style="color:gray">
-*A waiver
+:A waiver is enforceable only if it meets two conditions: First, it was made knowingly and voluntarily. Id. Second, under the circumstances, '''the interest in enforcing the waiver is not outweighed by a relevant public policy that would be harmed by enforcement.''' Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204, 212 (4th Cir. 2007); see also Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1397 (9th Cir. 1991) (holding that when it seeks to enforce '''a contractual waiver of a constitutional right''', the government bears the burden of '''“demonstrat[ing] that the public interest is better served by enforcement . . . than by non-enforcement”''').
 is enforceable only if it meets two conditions: First, it was made knowingly and
 </blockquote>
 *(11) The court is making this a Constitutional Rights case. That is not necessary. This also works as a "void as against public policy" case more generally, under the common law of contracts. Even without the 1st Amendment, we do not want courts to help public officials stifle free speech and criticism of malfeasance. The King's court should not protect servants of the King who disobey him. The People's court should not protect servants of the People who disobey them.   Going further, a corporate executive should not be protected when he tries to conceal misconduct from the Board of Directors, whether it be for-profit or non-profit. Any concealment via a nondisparagement clause should be require to have Board approval, just like if the President takes an extra $900,000 from the corporate treasury for personal use.
@@ Line 139: / Line 122: @@
 <blockquote style="color:gray">
-*Claims of
+:Claims of police misconduct, as well as the circumstances in which the City litigates and settles such claims, assuredly fall into '''the “public issues” category.''' Thus, enforcing the non- disparagement clause, which subjected Overbey to contractual liability for speaking about the allegations giving rise to her complaint and the circumstances under which she settled with the City, was contrary to '''the public’s well-established First Amendment interest in “uninhibited, robust, and wide-open” debate on “public issues.”'''
 </blockquote>
 *(12)  The public issue here is malfeasance by government officials.
@@ Line 151: / Line 128: @@
 <blockquote style="color:gray">
-*Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust
+:Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious “mistrust of governmental power.” Citizens United, 558 U.S. at 340. This mistrust is one of the “premise[s]” of the First Amendment, id., and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government- critical speech. Indeed, when the government (1) makes a police-misconduct claimant’s silence about her claims a condition of settlement; (2) obtains the claimant’s promise of silence; (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise; and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to itself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking...Accordingly, we conclude that enforcement of the non-disparagement clause at issue here was contrary to the citizenry’s First Amendment interest in limiting the government’s ability to target and remove speech critical of the government from the public discourse.
 </blockquote>
 *(13)  I would have put this as the problem being that the government is trying to suppress information about its own evil and incompetence. It isn't even  an issue of politics, really-- this is not about political controversies, but malfeasance.

@@ Line 84: / Line 84: @@
 ==The City's Argument==
   <blockquote style="color:gray">
-*The City, for its part, argues that the non-disparagement clause did not require Overbey to “waive” anything; rather, in agreeing to be bound by the non-disparagement clause, '''Overbey merely exercised her right not to speak in exchange for payment from the government.''' Alternatively, the City argues that '''even if the non-disparagement clause amounts to a waiver of Overbey’s First Amendment rights, there is no reason for us to hold that the waiver is void;''' thus, the City’s enforcement of the waiver cannot have violated the First Amendment.
+:The City, for its part, argues that the non-disparagement clause did not require Overbey to “waive” anything; rather, in agreeing to be bound by the non-disparagement clause, '''Overbey merely exercised her right not to speak in exchange for payment from the government.''' Alternatively, the City argues that '''even if the non-disparagement clause amounts to a waiver of Overbey’s First Amendment rights, there is no reason for us to hold that the waiver is void;''' thus, the City’s enforcement of the waiver cannot have violated the First Amendment.
 :We hold that the non-disparagement clause in Overbey’s settlement agreement amounts to a waiver of her First Amendment rights '''and that strong public interests rooted in the First Amendment make it unenforceable and void.'''
@@ Line 92: / Line 92: @@
 <blockquote style="color:gray">
-*Overbey also argues that the enforcement of the non-disparagement clause was
-unconstitutional because it was illegal for the City to include the clause in the first place;
+:Overbey also argues that the enforcement of the non-disparagement clause was unconstitutional because it was illegal for the City to include the clause in the first place; '''according to Overbey, the First Amendment prevents the City from introducing and negotiating for non-disparagement clauses in settlement agreements with police- misconduct claimants. The district court did not address that argument, and we decline to do so now...'''
 </blockquote>
 *(8) This sounds like the declaratory judgement claim of the newspaper, so maybe the Court *does* address it now.
@@ Line 103: / Line 99: @@
 <blockquote style="color:gray">
-According to the City, there is no need for us to subject the non-disparagement clause to First Amendment scrutiny, because Overbey’s promise not to speak about '''her case was
+:According to the City, there is no need for us to subject the non-disparagement clause to First Amendment scrutiny, because Overbey’s promise not to speak about '''her case was not a waiver of anything.It was, rather, a reasoned decision to exercise her right not to speak in return for payment.  The City points out that it did nothing to stop Overbey from speaking, and that it has paid her every cent that she was due under the terms of the settlement agreement—i.e., half the settlement sum. As the City would have it, Overbey agreed to exercise her rights in a particular way in return for money; she then exercised her rights in a different way, leaving her entitled to less money.'''
 We disagree...

@@ Line 197: / Line 197: @@
 <blockquote style="color:gray">
 :To bolster its argument, the City asserts that if Overbey were to prevail in the instant case, the City would “almost certainly” offer less money to similar police-misconduct claimants in the future, since such claimants would have less value to offer in return for settlement; that is, claimants would be unable to sell their own silence as part of a settlement agreement, making their agreement to settle less valuable.   This, according to the City, would “reduce the number and mutual value of settlements.”   We are troubled by the underlying logic of this assertion: police- misconduct claimants get money to keep quiet, the City gets silence and a speedy end to litigation, and everybody wins—except, presumably, members of the public who are interested in transparency surrounding police-misconduct suits.
 :Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, '''we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause''' in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”
 </blockquote>
 *(17)  The Court is dead wrong here, but it doesn't matter. Legally, it is irrelevant as to whether settlements will be bigger if they are allowed to include hush money to suppress disclosure about government malfeasance.
 <blockquote style="color:gray">
@@ Line 207: / Line 207: @@
 </blockquote>
 *(18)  Nice phrasing. It isn't just about "unpleasant attacks". It's about insulating public officials from exposure of malfeasance. The officials would find such exposure unpleasant, but that's not what's important here: it's that they get away with illegal behavior if they can conceal their crimes and other illegal behavior.
 <blockquote style="color:gray">

@@ Line 184: / Line 184: @@
 <blockquote style="color:gray">
-:We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and t''o which the speaker would not have had access but for a promise of confidentiality'' or other fiduciary obligation to the government. Cf. ''Snepp v. United States,'' 444 U.S. 507, 510 (1980).
+:We note that this is not a case in which the government seeks to hold a private speaker liable for the unauthorized disclosure of confidential or sensitive information that was held by the government and '''to which the speaker would not have had access but for a promise of confidentiality''' or other fiduciary obligation to the government. Cf. ''Snepp v. United States,'' 444 U.S. 507, 510 (1980).
 </blockquote>
 *(15)  Good caveat.
@@ Line 201: / Line 201: @@
 settlement; that is, claimants would be unable to sell their own silence as part of a
 settlement agreement, making their agreement to settle less valuable.   This, according to the City, would “reduce the number and mutual value of
-settlements.” Id. We are troubled by the underlying logic of this assertion: police-
+settlements.”   We are troubled by the underlying logic of this assertion: police-
 misconduct claimants get money to keep quiet, the City gets silence and a speedy end to
 litigation, and everybody wins—except, presumably, members of the public who are
 interested in transparency surrounding police-misconduct suits.
-:Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”
+:Aside from that concern, there are two factors that make the City’s assertion unconvincing. First, the assertion is overly simple: the outcome of settlement negotiations in a police-misconduct suit is likely to be driven by a complex interaction of case-specific factors, such as the defendants’ risk of exposure to high damages awards following a jury trial, the claimant’s financial resources, and each side’s appetite for litigation. Accordingly, '''we will not assume that the financial terms of all future settlements will be appreciably affected by the enforceability of the non-disparagement clause''' in this settlement. Second, during oral argument, the City represented that it had already stopped using non-disparagement clauses like Overbey’s in settlement agreements with police-misconduct claimants. Thus, we are left with no reason to think that the enforceability of the non-disparagement clause in Overbey’s settlement agreement has anything other than a conjectural and attenuated relationship to “the number and mutual value of [future, hypothetical] settlements.”
 </blockquote>
-*(17)
+*(17)  The Court is dead wrong here, but it doesn't matter. Legally, it is irrelevant as to whether settlements will be bigger if they are allowed to include hush money to suppress disclosure about government malfeasance.
 <blockquote style="color:gray">
-:It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. N.Y. Times, 376 U.S. at 270. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle. Thus, the City’s asserted interest in enforcing the non-disparagement clause to avoid harmful publicity stumbles out of the gate, and we find it unpersuasive.
+:It is well-established that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” can play a valuable role in civic life and therefore enjoy the protections of the First Amendment. N.Y. Times, 376 U.S. at 270. Enforcing a waiver of First Amendment rights for the very purpose of insulating public officials from unpleasant attacks would plainly undermine that core First Amendment principle. Thus, the City’s asserted interest in enforcing the non-disparagement clause to avoid harmful publicity '''stumbles out of the gate''', and we find it unpersuasive.
 </blockquote>
-*(18)
+*(18)  Nice phrasing. It isn't just about "unpleasant attacks". It's about insulating public officials from exposure of malfeasance. The officials would find such exposure unpleasant, but that's not what's important here: it's that they get away with illegal behavior if they can conceal their crimes and other illegal behavior.
 <blockquote style="color:gray">
 As the City would have
 it, Overbey “sold her [speech] rights, with an option to buy them back, which she
-exercised, and now she has [her rights] again.” Id. at 39. Essentially, the City argues that
+exercised, and now she has [her rights] again.” Id. at 39. Essentially, '''the City argues that
-half of Overbey’s settlement sum was earmarked for her silence, and that it would be
+half of Overbey’s settlement sum was earmarked for her silence,''' and that it would be
 unfair for Overbey to collect that half of her money when she was not, in fact, silent.
-When the second half of Overbey’s settlement sum is viewed in this light, it is difficult to
+When the second half of Overbey’s settlement sum is viewed in this light, '''it is difficult to
 see what distinguishes it from hush money. Needless to say, this does not work in the
 City’s favor. We have never ratified the government’s purchase of a potential critic’s
 silence merely because it would be unfair to deprive the government of the full value of
-its hush money. We are not eager to get into that business now.
+its hush money. We are not eager to get into that business now.'''
 </blockquote>
-*(19)
+*(19) Exactly.
 ==The Newspaper's Claim==