George:

Under the heading "be careful what you wish for," here is my response to your request for thoughts on the differences between the two "gag orders" contained in the settlement agreements of the Ivy landfill case and the case involving the NRA T-shirt / dress code policy at a county middle school. (Note that comments on the latter case are based on press reports and obviously involve a degree of speculation because the settlement agreement is confidential.)

As a preliminary matter it should be pointed out that neither of the silencing provisions in the two cases is a true "gag order." In neither case did the court "order" the silence of the parties; rather the parties agreed to include a silencing provision in their respective settlements.

In the T-shirt case, the silencing provision actually appears to be a "confidentiality" provision whereby the parties agreed not to discuss the terms of the settlement itself. Such provisions are common in settlement agreements, especially cases in which neither party admits any wrongdoing. In lawsuits involving strictly private (i.e. non-governmental) parties, "confidentiality" provisions are a useful tool to encourage the parties to settle the case; often bringing a quick end to what would otherwise be a long, costly, and difficult process. Moreover, many feel that an individual's right of privacy extends to keeping the terms of a private settlement confidential.

That balance changes, however, when one of the parties to the case is a government agency or officer. In such cases, the general public has a direct interest in the outcome of the litigation--be it a court decision or a settlement agreement. Governmental authority emanates from the people and therefore the public has right to know what its government is doing. That knowledge is obviously denied to the public when government litigants agree to settlements containing "confidentiality" provisions. Despite this harm, however, there are rare circumstances when a "confidentiality" provision may be the best or only course of action. For example, in many cases involving minors, the law requires that the court records be sealed. Further, there may be aspects of a settlement that, if disclosed, could inflict harm or public embarrassment on the private litigant. In such cases, the public's right to know is in conflict with the individual right to privacy. This is not to argue that a "confidentiality" provision was required or warranted in the T-shirt case (without more information it is impossible to know.) Rather, it is to argue that, although such provisions should be rare in litigation involving government litigants, there may be some cases in which it is appropriate.

By contrast, it is difficult to see any public benefit gained from the silencing provision in the landfill case. Best described as a "no opposition" clause, the provision silences the landowners whose property borders the landfill from saying or doing anything to oppose the expansion of the landfill--specifically, the building of a new "Cell 5." This provision is highly unusual and far more troubling than the silencing provision in the T-shirt case for several reasons.

First, whereas the "confidentiality" provision silences parties on both sides of the T-shirt case, the "no opposition" clause in the landfill settlement only silences the Ivy landfill's neighbors. The speech of the government defendants is not limited in any way by the terms of the settlement.

Second, the "confidentiality" provision in the T-shirt settlement is very narrow and only limits the parties from discussing the terms of the settlement agreement itself. The "no opposition" clause, by contrast, prohibits the landfill's neighbors from discussing issues that have nothing to do with the terms of the settlement agreement.

Third, the focus of the "confidentiality" provision is on the past, on events that have already transpired. The "no opposition" clause is focused on the future in that it prevents the landfill's neighbors from participating in the political debate over the proposed "Cell 5" expansion of the landfill. Local officials are free to publicly extol the benefits of expanding the Ivy landfill while the neighbors of the landfill may not say or do anything that opposes the application to expand it.

Fourth, the "confidentiality" provision was not designed to keep particular information away from the government agency whose mission is to collect and evaluate such information. In other words, local government entities that wanted to expand the landfill--but could not do so without the permission of the state's Department of Environmental Quality --entered into a contract to keep relevant information from the DEQ.

In response to criticism of the "no opposition" clause, local officials have stated that they made several concessions to the demands of the landfill's neighbors that they were not required to make; specifically, changes to the plans for Cell 5. Having made these concessions to the landfill's neighbors, argue the local officials, it is not unreasonable to insist that the neighbors not oppose the revised plan--particularly because they "voluntarily" agreed to the "no opposition" clause.

Although it is debatable how "voluntary" it is when private citizens agree to such a provision rather than face further litigation costs in the tens of thousands of dollars, the issue of voluntariness is only a small part of a much larger question. Indeed, if there was ever an attempt to enforce the provision, a strong case can be made that a court would declare it unconstitutional even if "voluntarily" agreed upon. But constitutional or not, do we really want public officials contracting for the silence of a group of citizens who have first-hand knowledge of an issue that is of immense importance to the entire community? For reasons of water and air contamination, and the potential tax consequences for cleaning up such contamination, the issue of possible environmental damage extends far beyond those whose property borders the landfill. Unlike the T-shirt case where the possibility exists that the "confidentiality" provision serves an individual's right of privacy, the "no opposition" clause in the landfill case benefits only local government at the expense of the public's right to know.

Josh Wheeler
(electronic mail, March 23, 2004)

For related articles, see Albemarle County School Board Asks for Release of Gag Order and Josh Wheeler Asks Council Candidates Three Questions.