Overbey v. Mayor of Baltimore: The Cost of Silence and the Impact of Restricting Speech in Police Brutality Settlements

Delaney E. Anderson

Can the government purchase silence from a someone who its agents beat, shocked with a stun gun, and ridiculed? According to Supreme Court precedent and the United States Court of Appeals for the Fourth Circuit, no. In Overbey v. Mayor of Baltimore, the Fourth Circuit answered the important question of whether the government may impose content-specific speech restrictions in the context of settlement agreements. Implicit in the court’s reasoning is the underlying goal of self-fulfillment in First Amendment speech protections. Through an analysis of First Amendment precedent, the court accurately captured the importance of protecting speech describing an individual’s personal experience of government abuse. In Overbey, the court analyzed whether the use of a non-disparagement clause, prohibiting Ashley Overbey from speaking about her experience of police brutality, was an enforceable waiver of her First Amendment rights.

Expanding on the court’s correct decision and the resulting implications, this Note will analyze the case, the underlying precedent, the court’s reasoning, and the court’s application of relevant precedent and First Amendment theory. Part I of this Note will describe the case before the Fourth Circuit, including Overbey’s experience, Baltimore City’s response, and the United States District Court for the District of Maryland’s decision. Part II will then discuss the relevant legal precedent underlying the court’s decision. This Part will explore the First Amendment jurisprudence related to content-specific speech restrictions on speech that is critical of the government, the supremacy of First Amendment interests over competing interests, and the free speech jurisprudence related to self-fulfillment and self-respect. Part III will follow the court’s reasoning that led to its conclusion that the non-disparagement agreement was an unconstitutional waiver of Overbey’s First Amendment right, as well as Judge Quattlebaum’s dissenting opinion. Finally, Part IV will explore the relationship between the court’s decision and government-critical speech protections, the policies underlying the First Amendment, and the freedom of speech of marginalized communities.