Money for Silence: A Gag Order Policy with Legal Settlements Divides a Local Government

From 2011 to 2014, Baltimore settled more than 100 police brutality suits brought against the city. The Baltimore Sun discovered the city paid out $5.7 million, but the money came at a price—the settlement agreements contained a “gag order,” or nondisclosure clause, that prohibited plaintiffs from making any public statement about their case. This clause, combined with a state law that prevents city officials from discussing disciplinary actions levied against officers, meant that much of the public couldn’t learn the details about misconduct cases where city officials agreed to pay up. 

Baltimore is now trying to change that. In an executive order, Mayor Jack Young restricted the use of gag orders only when they are “reasonable.” In a news release, Young said that people who receive a settlement “should absolutely be able to speak their truth.” 

“I signed the Executive Order as affirmation that Baltimore will never again restrict anyone from speaking openly about their experiences with their government,” Young said. “This is a basic right that should never be limited.”

But some have raised questions about whether the executive order actually does what Young says, as the city solicitor will have the power to decide what kind of public statements fit the definition of reasonable. Instead, some city council members are pushing a separate bill, introduced by Councilwoman Shannon Sneed, that would completely ban the city from using gag orders in police misconduct settlements.

That bill passed unanimously through the council’s public safety committee on Monday, and will be up for a vote by the full council next week. While council members say that it is a necessary, representatives from Young’s office said that the mayor does not support the measure because he doesn’t believe the council has the authority to regulate decisions made by the city solicitor.

The executive order and ensuing city hall debate arrived after Baltimore’s use of gag orders came under legal fire in recent months. In July, a U.S. Appeals Court found that the city’s nondisclosure agreements were unconstitutional because they limited the free speech of recipients. 

The court ruled that “the non-disparagement clause...amounts to a waiver of...First Amendment rights…It’s difficult to see what distinguishes it from hush money…We have never ratified the government’s purchase of a potential critic’s silence.”

About 95% of the city’s settlement agreements include nondisclosure clauses, often involving cases of alleged police brutality. Tawanda Jones, a local activist whose brother died in police custody in 2013, refused to sign onto a settlement agreement that included a nondisclosure clause. She met with Young last month to discuss the executive order, but she told the Baltimore Sun that she is not pleased with the final version. 

“The first line should have said gag orders are unconstitutional, and it doesn’t,” Jones said. “We need full accountability. We don’t need anything to be watered down or left for one to conclude it’s something when it’s really something else.”

Young also met with the ACLU of Maryland last month to discuss his executive order, and the ACLU said that they do not support the current version. In a statement, the ACLU said that they were promised the opportunity to review it before it was finalized, but didn’t happen.

The ACLU has two main complaints with the order in its current form: it doesn’t ban gag orders outright, just restricts them to cases that the city solicitor deems “reasonable,” and it doesn’t nullify past gag orders (although representatives from Young’s office have said that it does, the ACLU claims that nullification of past nondisclosure agreements is not explicitly spelled out in the text of the order).

"The Executive Order still leaves the decision about whether to require a gag order on a survivor of police abuse entirely in the hands of City Solicitor Andre Davis, who gets to decide what is ‘unreasonable,’” reads the ACLU’s statement, which also points out that Davis has argued in favor of the city’s gag order policy in court.

Davis asked for a rehearing of the Appeals Court ruling that gag orders were unconstitutional in July, saying that the judges had “made it categorically impossible...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.”

Davis said the executive order is the first step toward building a new culture of transparency in the city. “The Law Department is working hard every day to help restore trust in our residents’ relationship with the Police Department. The Mayor’s Executive Order is another step toward that goal,” he said in a press release.

But the ACLU said the council should push forward with its own measure. "The Baltimore City Council has the power to end unconstitutional gag orders on survivors for police abuse—once and for all,” the group said.