Back in 2014, Richard Gonzalez was a sergeant in the Town of Dover, New Jersey, police department. Gonzalez sued the Town of Dover for discrimination and retaliation. The case was litigated and in 2015, the Town of Dover paid a $175,000 settlement to Gonzelez. As part of the settlement, Gonzelez agreed to retire from the police department and also ― and this is where it gets interesting ― to not disparage the Town of Dover or its officers, directors and employees.
Fast forward almost a decade to 2024 and we find the Town of Dover sending Gonzalez a cease and desist letter telling him not to disparage the Town’s officials on social media or otherwise. The following year, 2025, the Town of Dover sued Gonzalez for breaching the non-disparagement part of the settlement. Certainly, according to the court record, Gonzalez had made some pretty harsh comments about persons employed by the Town of Dover. The Town of Dover sought an injunction against Gonzalez to silence him from such future comments and also to repay the $175,000 settlement.
Gonzalez sought a dismissal of the Town of Dover’s complaint under the New Jersey Uniform Public Expression Protection Act (“UPEPA”). Gonzalez argued that the statements made in his social media posts was protected political speech and thus protected by the First Amendment.
The trial court issued a written decision which granted the Town of Dover’s request for a preliminary injunction. The trial court found it undisputed that Gonzalez had entered into the non-disparagement provision in the settlement agreement, and found evidence that Gonzalez had breached that agreement. Further, the trial court found that few of Gonzalez’s comments could be characterized as political speech but instead were “clearly disparaging”. Reasoning that allowing Gonzalez to continue his social media posts about the Town of Dover’s officials would cause them irreparable harm, and that the disparagement provision did not contain any exception for First Amendment speech, the trial court concluded that the Town of Dover was likely to prevail in its case against Gonzalez.
The trial court also found that the New Jersey UPEPA, which was enacted in 2019, did not apply retroactively to the 2015 settlement agreement. Further, the UPEPA was inapplicable because Gonzalez had waived his rights to make his social media posts under the 2015 settlement agreement. Even if the UPEPA did apply, thought the trial court, the Town of Dover was still able to make a prima facie case that Gonzalez had breached the non-disparagement provision.
Gonzalez appealed and that resulted in the opinion in Town of Dover v. Gonzalez, 2026 WL 1532353 (N.J.Super.App., May 21, 2026), that we shall now examine.
After explaining the basics of the UPEPA, the appeals court took up the first issue of whether Gonzalez’s speech was within the scope of the UPEPA. Among its categories of protected speech, the UPEPA applies to a person’s exercise of their First Amendment and New Jersey Constitution’s protected for free speech on a matter of public concern. The court noted that discourse “on political subjects and critiques of the government will always fall within the category of protected speech ….” This included discussion of all the affairs of government, political candidates, and all matters relating to the political processes. The appeals court thought that Gonzalez’s speech fell squarely within these protections.
Now for the 800 lb. gorilla in the room: Did the non-disparagement provision in the 2015 settlement agreement nullify the application of the New Jersey UPEPA?
No. The rationale used by the appeals court was very straightforward. Statutes must be interpreted according to their language, and the New Jersey UPEPA does not exclude from its protections that speech which is the subject of a non-disparagement provision. While the non-disparagement provision might still be important for determining whether the Town of Dover could ultimately prevail on its claim, that non-disparagement provision does not per se block the UPEPA.
Because the trial court had decided that the UPEPA was not applicable because of the non-disparagement provision, the trial court had not thereafter conducted a proper analysis of the Town of Dover’s claim against Gonzalez. This meant that the matter would be remanded back to the trial court to go through that analysis.
The appeals court suggested that the trial court needed to define the breadth of the non-disparagement provision and whether it was meant to encompass Gonzalez’s speech having nothing to do with his original 2014 discrimination and retaliation claims. The trial court would likewise have to determine if the non-disparagement provision was too broad and thus violated New Jersey public policy that such provisions be narrowly drawn and interpreted. Finally, the appeals court suggested to the trial court that it must also consider whether the non-disparagement provision amounted to an impermissible waiving of a person’s constitutional rights in exchange for a public benefit.
Thus, the trial court’s order dismissing Gonzalez’s UPEPA defense was vacated by the appeals court and the matter remanded to the trial court to make those findings.
ANALYSIS
The opinion by the New Jersey appeals court was spot on. The UPEPA expressly defines what is included within that statute’s scope. Speech that is protected by the First Amendment and about a matter of public concern is included. This includes political speech as it is protected by the First Amendment. Thus, Gonzalez’s political speech was within the scope of the UPEPA.
Conversely, the UPEPA also expressly defines what is not within the statute’s scope. For instance, commercial speech is not protected in certain circumstances. Each state is also free to enact its own “non-uniform” exceptions to their particular UPEPA’s scope. Speech that is subject to a non-disparagement clause is not one of these exclusions in New Jersey. Thus, the UPEPA applies to the Town of Dover’s causes of action against Gonzalez which seek to deter or retaliate against him for his protected speech.
But, as the appeals court goes on to note, this doesn’t necessarily end the matter. It might be that the Town of Dover could prove that sufficient evidence exists to support its case against Gonzalez nonetheless, at which point Gonzalez’s UPEPA gambit would be unsuccessful and the matter would then be litigated in the normal course.
Whether Gonzalez’s speech was indeed political speech is outside the limits of this article, and the appeals court itself remanded the matter to the trial court to consider the issue. Likewise, the trial court also has to figure out whether Gonzalez’s speech was that contemplated by the non-disparagement provision. We’ll have to see how that comes out, but my wager would be that the Town of Dover loses. Gonzalez’s 2025 speech is far removed from his 2014 harassment and retaliation claim and apparently doesn’t relate to that at all. Non-disparagement provisions are to be narrowly construed and it is difficult to discern how such a narrow construction could prove any avenue of success for the Town of Dover.
But that is for later. What we have learned here is that a non-disparagement provision does not provide any sure-fire way to circumvent the application of the New Jersey UPEPA. That is important by itself.
Read the full article here