ASHLEY AMARIS OVERBEY; BALTIMORE BREW, Plaintiffs - Appellants,
THE MAYOR AND CITY COUNCIL OF BALTIMORE; BALTIMORE CITY POLICE DEPARTMENT, Defendants - Appellees. AMERICAN SOCIETY OF NEWS EDITORS; ASSOCIATED PRESS MEDIA EDITORS; ASSOCIATION OF ALTERNATIVE NEWSMEDIA; BUZZFEED; GANNETT COMPANY, INCORPORATED; HOWARD UNIVERSITY SCHOOL OF LAW CIVIL RIGHTS CLINIC; INTERNATIONAL DOCUMENTARY ASSOCIATION; INVESTIGATIVE REPORTING PROGRAM AT UC BERKELEY; INVESTIGATIVE REPORTING WORKSHOP AT AMERICAN UNIVERSITY; TAWANDA JONES; MPA- THE ASSOCIATION OF MAGAZINE MEDIA; MARYLAND D.C. DELAWARE BROADCASTERS ASSOCIATION; MARYLAND-DELAWARE-DISTRICT OF COLUMBIA PRESS ASSOCIATION; NATIONAL PRESS PHOTOGRAPHERS ASSOCIATION; NATIONAL WOMEN'S LAW CENTER; ONLINE NEWS ASSOCIATION; PUBLIC JUSTICE; PUBLIC JUSTICE CENTER; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; THE BALTIMORE SUN; THE CENTER FOR INVESTIGATIVE REPORTING; THE E.W. SCRIPPS COMPANY; THE WASHINGTON POST; TULLY CENTER FOR FREE SPEECH; WASHINGTON LAWYERS' COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Amici Supporting Appellant.
Argued: January 30, 2019
from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
William Wolff, CROWELL & MORING LLP, Washington, D.C.,
M. Davis, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland,
Deborah Jeon, Nicholas Steiner, AMERICAN CIVIL LIBERTIES
UNION OF MARYLAND, Baltimore, Maryland; Charles D. Austin,
Nkechi Kanu, Tyler O'Connor, CROWELL & MORING LLP,
Washington, D.C., for Appellants.
Suzanne Sangree, Senior Counsel, Lydie E. Glynn, Assistant
Solicitor, Colin P. Glynn, Assistant Solicitor, Jason R.
Foltin, Assistant Solicitor, Frederic Smalkin, Jr., Assistant
Solicitor, BALTIMORE CITY DEPARTMENT OF LAW, Baltimore,
Maryland, for Appellees.
Jennifer D. Bennett, PUBLIC JUSTICE, Oakland, California;
Ajmel Quereshi, Civil Rights Clinic, HOWARD UNIVERSITY SCHOOL
OF LAW, Washington, D.C., for Amici Howard University School
of Law Civil Rights Clinic and Public Justice. K'Shaani
Smith, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Amici
Public Justice Center, Washington Lawyers' Committee for
Civil Rights and Urban Affairs, National Women's Law
Center, and Tawanda Jones. Bruce D. Brown, Katie Townsend,
Caitlin Vogus, REPORTER COMMITTEE FOR FREEDOM OF THE PRESS,
Washington, D.C.; Lisa B. Zycherman, DAVIS WRIGHT TREMAINE
LLP, Washington, D.C., for Amici Reporters Committee for
Freedom of the Press and 19 Media Organizations.
FLOYD, THACKER, and QUATTLEBAUM, Circuit Judges.
the city of Baltimore has settled civil-rights lawsuits
alleging police misconduct, it has typically required
settling claimants to agree to a "non-disparagement
clause," under which they promise not to speak to the
media about either their underlying allegations or the
settlement process itself. Claimants who breach the
non-disparagement clause are, by the terms of the clause,
liable to Baltimore for damages equaling half of their
settlement funds. Ashley Overbey, a police-misconduct
claimant who settled her case but then spoke about it
publicly, claims that Baltimore violated her First Amendment
rights when it enforced the non-disparagement clause against
her. Separately, a local news website, the Baltimore Brew
(the Brew), claims that Baltimore's alleged practice of
including non-disparagement clauses in virtually all
settlement agreements with police-misconduct claimants
violates the First Amendment on its face. The district court
granted summary judgment to the City on both claims. For the
reasons that follow, we reverse.
Overbey sued three officers of the Baltimore Police
Department (BPD), alleging that the officers had beaten,
tased, verbally abused, and needlessly arrested her in her
own home after she called 911 to report a
burglary. She brought various claims against the
defendants under both state and federal law. Her case ground
through the system for about two years, during which she and
her children became homeless-partly because Overbey's
arrest record made it difficult for her to find work.
following her attorney's advice, Overbey agreed to settle
her suit for $63, 000. The parties to the settlement
agreement included both the officers named in Overbey's
complaint and the City itself. The City was a party to the
agreement because, pursuant to Maryland law, it represents
the BPD's interests in settling claims against BPD
95% of settlement agreements between the City and persons
alleging police misconduct,  Overbey's settlement
agreement included what we will call a
"non-disparagement clause." This clause required
Overbey to "limit [her] public comments" regarding
her lawsuit "to the fact that a satisfactory settlement
occurred involving the Parties." J.A. 96. It prohibited
her from "discussing [with the news media] any opinions,
facts or allegations in any way connected to" her case,
her underlying allegations, or the settlement process.
Id. And it provided that if Overbey were to ever
make a prohibited comment regarding her lawsuit, the City
would be entitled to a refund of half of her settlement. The
clause placed no restriction on the City's freedom to
speak about the case.
Overbey signed the settlement agreement, the agreement went
before the City's Board of Estimates for approval. While
approval was pending, a local newspaper, the Baltimore
Sun, published Overbey's name, her photograph, her
address, and the amount of her proposed settlement in a
report on payouts planned for police-misconduct claimants.
The Sun's report quoted a statement made by the
then-City Solicitor to the Board of Estimates in which the
Solicitor characterized Overbey as "hostile" during
her encounter with police-insinuating that Overbey, not the
officers, had been at fault. J.A. 28.
Sun's story accumulated several anonymous,
race-inflected comments implying that Overbey had initiated a
confrontation with the police in hopes of getting a payout
from the City. Overbey posted responses to several such
comments, insisting that the police had been in the wrong and
describing some of the injuries she had suffered.
City determined that Overbey's online comments on the
Sun article violated the non-disparagement clause of
the settlement agreement. Consequently, once Overbey's
settlement was approved, the City remitted only half of the
agreed payment-$31, 500- to Overbey's
attorney. It retained the other half as
"liquidated damages." See Appellees'
Br. at 3.
having obtained new representation, filed another lawsuit in
which she named the City and the BPD as defendants. In this
second suit, she sought to compel the City to pay her the
other half of her settlement sum. She brought a variety of
claims under federal and state law, only one of which is
relevant to us now: that the City violated her First
Amendment rights when it withheld half of her settlement
because of her speech about her case.
was joined in her second suit by the Brew, a local news
website that, among other things, investigates and reports on
how the City and its police department handle allegations of
police misconduct. The Brew claimed that the City's
policy of including non-disparagement clauses in its
settlements with police-misconduct claimants violated the
Brew's First Amendment interest in newsgathering. The
Brew sought both declaratory and injunctive relief.
moved to dismiss, arguing that neither Overbey nor the Brew
had stated a claim against it. The district court granted the
City moved to dismiss or, in the alternative, for summary
judgment. It attached to its motion a number of exhibits
pertaining to Overbey's settlement agreement and the
online comments that had led the City to withhold half of her
settlement funds. Overbey and the Brew filed a response; they
attached to their response a declaration from Overbey in
which she averred that she had not understood the scope of
the non-disparagement clause when she signed the settlement
hearing on the motions, the district court decided that
because it had "relied upon supplemental affidavits and
documents filed outside of the pleadings," it would
treat the City's motion as one for summary judgment
pursuant to Federal Rule of Civil Procedure 12(d), even
though the parties had not yet conducted discovery. J.A.
352-53. The district court then granted summary judgment to
the City on Overbey's First Amendment claim, reasoning
(1) that by signing the settlement agreement, Overbey had
knowingly, voluntarily, and intelligently waived her First
Amendment right to speak about her police-misconduct suit;
and (2) that enforcement of the waiver was not contrary to
public policy. The district court also granted summary
judgment to the City on the Brew's First Amendment claim,
concluding that the Brew lacked standing to challenge the
City's practice of using non-disparagement clauses in
virtually all settlement agreements with police-misconduct
claimants. Overbey and the Brew now appeal.
review de novo the district court's order granting
summary judgment to the City. Wood v. Arnold, 915
F.3d 308, 313 (4th Cir. 2019).
begin with Overbey's First Amendment claim. Overbey does
not dispute that the non-disparagement clause, on its face,
permitted the City to withhold half of her settlement funds
as liquidated damages. But she argues that the non-disparagement
clause was, and is, void, because it amounts to an
unenforceable waiver of her First Amendment
rights. According to Overbey, since the clause is
void, the City violated the First Amendment when it
preemptively clawed back half of her settlement funds based
on her speech about her case.
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
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 ...