Background
Richard Gonzalez, a former Dover police sergeant, sued the Town of Dover in federal court in 2014, alleging discrimination, retaliation, and harassment. His claims included that he was targeted for supporting a mayoral candidate, posting critical comments on social media about the mayor, reporting misconduct to the prosecutor’s office, and raising concerns about police conduct. The parties settled in December 2015 for $175,000, which included a non-disparagement provision prohibiting Gonzalez from making “negative comments or disparaging remarks, in writing, orally or electronically” about the town, its officials, and employees.
Between 2015 and February 2024—nearly nine years later—Gonzalez posted numerous comments on social media criticizing Dover officials and employees. He published allegations of excessive force by police, misuse of public funds, and misconduct by public officials. In February 2024, the town sent a cease-and-desist letter demanding Gonzalez remove his posts and stop making disparaging remarks. Gonzalez ignored the letter and continued posting.
In February 2025, the town filed suit for breach of contract. Gonzalez responded with a counterclaim under New Jersey’s Uniform Public Expression Protection Act (UPEPA), an anti-SLAPP statute, arguing the town’s complaint was designed to suppress protected speech on matters of public concern. The trial court granted the town’s request to dismiss the counterclaim, finding that Gonzalez had waived his free speech rights by signing the settlement agreement in exchange for $175,000.
The Court’s Holding
The Appellate Division reversed the trial court’s dismissal. The court held that the mere existence of a non-disparagement provision in a settlement agreement does not categorically exclude a defendant from UPEPA protections. The statute does not contain an express carve-out for parties bound by non-disparagement clauses. Because the town’s complaint is based on Gonzalez’s social media posts criticizing public officials on matters of public concern—speech squarely protected by the First Amendment—UPEPA applies to this action.
The court emphasized that determining whether Gonzalez is entitled to UPEPA dismissal requires the trial court to address several unresolved issues on remand: (1) the meaning and scope of “negative comments” and “disparaging remarks” in the settlement agreement; (2) whether any waiver of free speech rights was “knowing, intelligent, and voluntary”; (3) whether enforcing the provision against protected speech would violate public policy; and (4) whether the town unconstitutionally conditioned receipt of a government benefit (the $175,000 settlement) on waiver of constitutional rights.
Key Takeaways
- Non-disparagement provisions in settlement agreements do not automatically shield parties from anti-SLAPP protections; statutory interpretation requires consideration of whether the underlying speech addresses matters of public concern.
- Speech criticizing government officials and employees on matters relating to their official duties remains constitutionally protected even when a plaintiff alleges breach of a non-disparagement clause.
- On remand, the trial court must interpret the contract language and determine whether any waiver of constitutional rights was sufficiently knowing and voluntary to survive constitutional scrutiny.
- Public policy considerations may limit enforcement of broad non-disparagement provisions that restrict speech on matters of public concern in perpetuity.
Why It Matters
This decision significantly impacts settlement agreements between employees and public entities. Towns, municipalities, and other government bodies frequently use non-disparagement clauses to settle employment disputes, but this ruling establishes that such clauses cannot automatically silence criticism of government conduct. The court’s reasoning, drawing on the broad remedial purpose of UPEPA, suggests that efforts to enforce settlement agreements against protected speech will face heightened scrutiny—particularly when the speech concerns public officials’ conduct in office.
The case also clarifies that anti-SLAPP statutes are not displaced by contractual waivers. Even if a party voluntarily agreed to refrain from disparaging remarks, that agreement cannot be used as a tool to suppress speech on matters of public concern without surviving constitutional analysis. The remand will determine whether the specific language, context, and consideration surrounding this particular non-disparagement clause permit its enforcement against Gonzalez’s posts—a framework applicable to similar disputes across New Jersey and potentially influential in other jurisdictions with similar anti-SLAPP statutes.