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Appeals court rules Baltimore police mandatory non-disclosure agreements unconstitutional

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  1. Newsgathering
Court rules in favor of a police misconduct victim who lost half of her settlement after speaking to the media.
Image of non disclosure agreement paper.

Update 8/14/19: This post has been updated to clarify where Ashley Overbey Underwood spoke out about her case.

A federal appeals court has ruled that Baltimore’s practice of forcing victims in police misconduct cases to sign non-disclosure agreements in order to settle is unconstitutional. In a July 11 opinion, the U.S. Court of Appeals for the Fourth Circuit overruled a 2017 federal district court decision that dismissed a challenge to such non-disclosure agreements. The Reporters Committee for Freedom of the Press, joined by 19 media organizations, filed a friend-of-the-court brief in the case, arguing that the public has a right to know about information pertaining to police misconduct settlements, and that the routine practice of using non-disclosure agreements silences the claimants in these cases, restricting the press’s ability to report on police misconduct allegations.

In 2017, the Baltimore Brew, a local online news publication, joined a case against the city of Baltimore and the Baltimore Police Department arguing that the non-disclosure agreements prevented the news media from reporting on police misconduct after Ashley Overbey Underwood, an alleged victim of police misconduct, lost more than half of her settlement after posting about the incident online.

Underwood filed a police misconduct case in 2014 after being reportedly beaten and tased by the officers who investigated a burglary in her apartment. She was supposed to receive a $63,000 settlement, but did not receive the full amount because she spoke out about her case. A public attorney also spoke publicly about the case, but without punishment.

The media coalition’s brief argues that Baltimore’s specific non-disclosure requirement poses a threat to reporters’ and news organizations’ ability to inform the public about accusations of police misconduct, and that journalists’ ability to speak with victims as sources helps hold government officials and officer accountable.

The Fourth Circuit found that “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,” and that the First Amendment is meant to serve as protection from such exercises of government power.

The brief references the Society of Professional Journalists’ Code of Ethics section that states reporters should “diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing,” stating that these so-called “gag orders” prevent journalists from reporting police-related stories in an ethical, balanced manner.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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