A judgment issued February 8th requires the city of South Bend to pay a former employee damages resulting from its attempt to condition severance pay on her agreement to a broad non-disparagement clause.
The American Civil Liberties Union of Indiana filed a lawsuit in August 2021 against the city of South Bend, after Alison Mynsberge was denied her severance pay because she would not sign an agreement prohibiting her from ever criticizing the city of South Bend.
While this judgment does not address the constitutionality of the issue, the U.S. Supreme Court has made clear that the First Amendment protects a public employee’s right to speak as a citizen on matters of public concern without fear of retaliation by his or her employer.
“If any former city employees signed an agreement with a similar non-disparagement clause, they surely feel their speech is limited, as the clause prohibits criticizing the city—or any of its employees or policies—with respect to any subject matter whatsoever,” said ACLU of Indiana Senior Staff Attorney, Gavin M. Rose. “Former city employees should know that the city’s ability to limit their right to speak on matters of public concern is highly circumscribed.”