Hi, welcome to Res Ipsa. I'm Melissa J. Hogan and I'm your resident attorney, advocate, and author. I have a book called "Afraid of the Doctor, Every Parent's Guide to Preventing and Managing Medical Trauma" that I wrote with a pediatric psychologist after many years with my youngest son who had severe medical PTSD.
Now, I'm an attorney and I work in the field of abuse and trauma. Specifically, I represent survivors of different kinds of abuse and I do independent investigations into allegations of abuse in faith communities.
Today our topic is about non-disclosure agreements and other types of silencing strategies that happen sometimes in environments where abuse is present.
What Are Non-Disclosure and Non-Disparagement Agreements?
What are non-disclosure agreements and non-disparagement agreements or NDAs for short? You can call them confidentiality agreements sometimes or confidentiality clauses. They can be clauses in other types of agreements.
Non-disclosure agreements are agreements to not speak about certain topics. If it's a settlement agreement for certain types of claims, it's that you won't talk about the things you've settled. Sometimes you won't even talk about that you entered into an agreement or you'll agree upon a certain phrasing that you'll use to talk about the situation.
Non-disparagement agreements are a little different. They are— that you won't disparage whoever the named person or organization is. That means say anything bad about them. Those can be really difficult because, what is saying something bad? If you've had a bad experience with someone or some organization— is that disparaging to tell about that experience? Possibly, yes. Non-disparagement agreements or clauses can be much more restrictive because they include if you say something true. It's just if it makes them look bad. They're a little more nebulous. They're much more restrictive.
Again, it can be an agreement. It can be a clause in some other type of agreement. Those would generally be non-disclosure and non-disparagement agreements or clauses.
What Are Other Silencing Strategies Often Used in Abusive Environments?
There are also other types of silencing that can happen.
Policies Used to Silence
It could be in policies of an organization. Specifically, I have one in mind that has a very extreme gossip policy. It can warp the definition of gossip and silence people because they're afraid to say anything, especially if you define gossip as basically either anything bad or anything someone can't necessarily make better. You can't process. If there's some dynamic happening that's abusive or dysfunctional or hypocritical, in that type of environment, they're not able to compare notes or process things. You're silenced by that type of policy.
Gag Orders, Protective Orders, Sealing Orders
Another silencing strategy can be a gag order, a protective order, or a sealing order in a legal case.
A gag order is specifically directed at individuals, whether that's parties or witnesses in a legal case. We've heard a lot about President Trump was subject to a gag order in one of his trials and whether that was reasonable. The restriction in a gag order can be problematic under the First Amendment, and we'll talk about that.
A protective order is similar to a gag order. That's really the legal name for it, a protective order, but gagging is specifically telling people they're not allowed to talk about certain things in the case.
Sealing a case is a little bit different.
Sealing a case means that everything is either under seal or you can seal certain documents in a case, so the public can't get access to those documents.
What you should know on the front end is that we have an open court system in the United States. The default is that the courts, attending them and the documents that are filed in court, by default are open to the public and that establishes trust in the court system. It establishes trust in the reliability of the judgment that has come about in a case because it's open. It can be scrutinized by the media, by other people. Judges have to be consistent. That's the default.
There's a very high standard to meet in order to seal a case. Sometimes you can just seal individual documents or you can redact those documents and just those pieces of information are sealed. It has to be narrowly tailored to the reasons for sealing something as opposed to sealing an entire case.
A Culture of Silence
Another silencing strategy can be a culture that reinforces silence about anything in particular, about disagreement, or about hard topics. If you're constantly in danger of losing your job or being demoted or being left out of projects, if you disagree with people at the company or if you talk about hard topics or if you challenge anyone, that is a culture of silencing that is also harmful.
What is Behind These Silencing Strategies?
These tactics aren't just about protecting information, because there are legitimate uses for agreements like NDAs. There are legitimate reasons for sealing portions of a case. In the case of, say, victims of sexual abuse, they can go by Jane Doe, they can have things sealed. So, there are legitimate reasons-- to protect trade secrets.
I personally have signed NDAs. I used to advise drug companies on clinical trials and you wouldn't be able to talk about that information publicly. But that's different than silencing people, especially people who have either endured abuse or have information that is of public relevance about someone who's potentially harmful.
The problematic part of harmful silencing strategies is a power imbalance. It's pretty much the same as what can exist in a case of abuse. When there's a power imbalance, that's where that becomes silencing to the other party as opposed to coming to an agreement where parties are of equal power and they decide you know what-- in this exchange, you're not going to talk about this person's trade secrets, or we have this confidential information of this invention that we're developing that we're not going to talk about.
These tactics, these silencing strategies aren't about protecting information. They're about controlling a narrative. They're about protecting reputations and preventing accountability. Preventing accountability in the public eye, whether that's with the media or potentially in the civil justice system or in the criminal justice system. Those harmful silencing strategies are not legitimate uses.
Three Red Flags of Silencing
There are three red flags for when you might see silencing that is very harmful.
Power Leveraging
The first is power leveraging.
Let's say you have a powerful organization that is the employer and they hold your health insurance. They hold your income for your family, your livelihood, and you're just this employee. There's a differential in power there. It doesn't have to be that there is a harmful silencing strategy that happens. They can not use those harmful silencing strategies, or they can work to actually level that power imbalance. But organizations such as companies and churches and ministries, they often have greater financial, legal, and spiritual resources than the individuals they may be trying to silence. That imbalance of power can be used to coerce agreement to terms that the individual might not otherwise agree with if they had equal power. Also, an organization or a powerful individual can call on other people or other reputations that are also powerful and lean into those to create a coalition of power to pressure the people that they are trying to silence.
This can be especially devastating in a setting of faith where the person believes that they're trying to do the right thing in speaking up and they are pressured not only maybe by a powerful pastor or a faith leader, but then also by that organization, by other people that are leading, and then by other organizations.
I think specifically about the response that Dave Ramsey gave to an article written about his company in January 2021, where he specifically doxxed the reporter and where he called on the people in his company to reach out to him and tell him, in sarcastic words, all the great things the organization was doing. Then said, we've also let these other faith leaders know about this situation and we want them to do something. And so they then went on social media and talked about it as well.
From: Public Relations <public.relations@ramseysolutions.com>
Date: Thursday, January 14, 2021 at 1:24 PM
To: Bob Smietana
Subject: Re: Request for interview and comment by Thursday COBBob,
Thanks for reaching out. We want to confirm for you that you are right, we are horrible evil people. We exist to simply bring harm to our team, take advantage of our customers, and spread COVID. And YOU figured it all out, wow. Who would have guessed that an unemployed guy, oh I am sorry, a “freelance reporter” would be the one to show us how horrible we are so we can change and to let the world know of our evil intent, secrets, and complete disregard for decency…..but YOU did it, you with all your top notch investigative skills have been able to weave together a series of half-truths to expose our evil ways. You are truly amazing….
A couple of weeks ago our team decided to do a Worship Service today at 4:30 to kick off the new year. We would love to have you come. You can bring your camera and get some great shots because there will probably be someone without a mask, who knows, there might be someone not socially distancing, and if you use those razor sharp investigative skills of yours you will probably catch one of them with their hands raised in worship to Jesus… which if captioned properly would prove we are an evil cult. Since this is today, it won’t even delay your Pulitzer Prize winning exposé of our pure evilness. Yes, you will be in a building where 1000 people hate you, but we will assign security to protect you….that is how cults do it. Please let us know in advance if you can make it, so we can personally meet you at the door. And thanks again for using your superior virtue to point out our pure evil intent. I am sure you can find more if you keep looking.
We are also blind copying several friends to ask their help as well. They are the pastors of the top churches in the area, several business leaders, and Christian leaders who have known Dave and Ramsey Solutions for decades. Also, we are copying our whole team.
If you are on this email we would ask a favor for Ramsey…would you help us? Bob’s phone number and email are here, and we would ask that you contact him TODAY and tell him all the evil horrible stories you know about us. Also, he lives in Spring Hill so if you see him out and about, be sure to congratulate him on his virtue. He needs to sell this story to pay his rent and the dirtier your story on us the more we can help him. When you call please do not be mean, Bob already has a lot of anxiety and we don’t want to add to that. If his phone is overwhelmed or he doesn’t want to hear your story, you should contact Religion News Service and tell them of Bob’s amazing grasp on virtue and truth. You can also tell them of all the people that have been helped by his pursuit of truth throughout the years as we all have followed his “career.” It is time the world knows about Bob and the blessing he has been to so many.
“Full Ramsey Solutions Response,” Religion News Service (1/15/2021).
Imagine if you were a person in that organization and you felt like something was wrong. And this was done to this reporter and these other people that had spoken up and it was done in a very un-Christlike way by sarcasm, making fun of people, and derogatory terms. Imagine how much that would affect your willingness to ever feel safe, not only to speak up about harm happening, but even to challenge anybody above you or anybody in leadership that might disagree with you, even about just normal work things.
Ambush
In addition to power leveraging, another red flag for silencing that is very harmful is an ambush- when they're unexpectedly faced with a situation where they have to choose between, like an NDA where they are silenced, and hey, we'll give you a little bit of money as long as you sign this and stay silent. They're faced with this choice versus otherwise- you're going to get fired. You have 24 hours to respond and you're going to lose your income, you're going to lose your health insurance for your family.
That type of ambush where you don't see it's coming. Then you're faced with an almost unwinnable choice. There's already disparate power in the relationship, but then when that ambush is set up inside of a differential in power, where that power is being leveraged against you, that is the second red flag of a very harmful silencing dynamic.
That is a sign of coercion. That's a legal term we would use to call that possibly a contract of adhesion, where you really don't have a reasonable choice there.
Ambush— That is a sign of coercion.
Obfuscation
The third red flag of silence is obfuscation. That's when organizations use vague language or half truths or really outright deception to obscure the real reasons behind a silencing strategy, the transparency is lacking. But if there's nothing to hide, why the secrecy?
Often if they're in a situation where an NDA is presented to them, if they're being let go from an organization because of a disagreement over how something is handled or a faith leader that has engaged in hypocritical actions or abusive behavior, the company will say, well, we want to "provide for you." Here is $20,000 because we care about you. We want you to be able to make it to your next destination employment-wise.
That's not really what's happening. They're paying you for your silence. Here is $20,000, not because we care about you. It doesn't mean some people within that organization might not, but they're buying your silence, especially in those situations where the agreement is for an indefinite period of time, where you have to stay silent forever. That's not a price worthy to pay.
If there's nothing to hide, why the secrecy?
I completely understand why people agree to that because it's a coercive situation. You feel like you have no choice, but it's certainly not a healthy situation. It's not a fair situation and it's very much an ungodly situation.
Even when these silencing strategies are used by a faith based organization, it does not mean that they are biblical. In fact, they're not. They're actually contradicting the Bible. Specifically, in Ephesians 5:8-11, it teaches us we are children of the light, and we should have nothing to do with the fruitless deeds of darkness, but rather expose them.
“For you were once darkness, but now you are light in the Lord. Live as children of light (for the fruit of the light consists in all goodness, righteousness and truth) and find out what pleases the Lord. Have nothing to do with the fruitless deeds of darkness, but rather expose them.”
Ephesians 5:8-11
So especially when people are in a situation where they have witnessed abuse, where they have witnessed deceit in a ministry or in a church, and they're trying to raise a red flag, be a whistleblower, thinking that people will listen to them. Then they're faced with the choice of an NDA or some type of silencing.
That is directly antithetical to what the Bible calls us to do, to expose the deeds of darkness, to speak up, to bring light to that situation and champion the oppressed. When leadership then presents that option, that is harmful.
When I was going through my very painful divorce about five years ago, and my ex-husband was a personality with a large faith-based financial and media company (Ramsey Solutions), I was silenced by a gag order in court unexpectedly for seven months. I'm going to talk a little more about that on the Res Ipsa Nota episode next Wednesday.
Having experienced this, I understand if you have as well, how incredibly harmful it is. I was unable to speak publicly. And not only that, I couldn't even talk to my closest friends, my family about what was happening. It was incredibly isolating and difficult and made what was happening even more unbearable.
It wasn't about keeping things private. It was about protecting reputations, protecting money, protecting millions of dollars. It was about using power and legal threats to control the truth.
God still used that situation, as ungodly as it was, to put me under this gag order, God still used it to teach me a lot of things, and I will talk more about that, like I said, on Wednesday.
What Should the Church Be Doing Instead?
What should the church and Christians be doing instead of these harmful silencing strategies? We should be speaking the truth, even when it's uncomfortable. Like I said, Ephesians 5:8-11 reminds us we are children of the light and to have nothing to do with darkness. When churches and ministries use NDAs, and non-disparagement NDAs, they're often hiding things in the dark, whether it's abusive behavior, financial misconduct, or even just poor leadership decisions.
But that doesn't mean we hide that. We need to deal with it openly. Also, as 1 Corinthians 5:12 reminds us, it is our duty to judge those within the church, holding one another accountable to the highest standards of integrity and righteousness. It's easy to justify these types of agreements for protecting the church or preventing gossip, but in reality, what they actually are doing most of the time is serving to protect harmful leaders from accountability.
“What business is it of mine to judge those outside the church? Are you not to judge those inside? God will judge those outside. ‘Expel the wicked person from among you.’”
1 Cor. 5:12-13
When we silence those who have been harmed, we're not only potentially denying them the opportunity for healing, but we also prevent the church from confronting and correcting wrongdoing and prevent the perpetrator from facing accountability for their harms and maybe coming to a place of repentance themselves.
Some might argue that NDAs are needed to prevent false allegations or slander, but the truth is, there are already laws in place to address those concerns. Plus the Bible calls on us to address issues head on and to seek the truth, not to hide behind legal tactics. If we are truly following the example of Jesus, we should be welcoming transparency even when it's uncomfortable. We should be the first people to invite independent investigations into allegations of wrongdoing. We should be eager to seek out the truth, even when it's hard, or especially when it's hard.
There's a reason why the late Supreme Court Justice Louis Brandeis, once said, "Sunlight is said to be the best of disinfectants." When we bring things into the light, they lose their power to harm. Darkness is where things fester and infect. But light actually heals situations and heals people.
Jesus is called the light of the world. That light is what heals people.
Churches should never fear exposure if they're walking in the truth. Yes, there may be mistakes. There may be missteps. There may be even specific sins that are happening, but hiding them, the deception, and the obfuscation, and the harm caused by silencing only makes those things worse by exponential amounts.
Instead, the church should be a place where the wounded are heard, where wrongdoers are held accountable, and healing can actually happen.
Walking in the Light: A Personal Plea
Hear this from me. I understand that churches and ministries and other faith based organizations may feel like they're protecting themselves with NDAs and other silencing strategies. But the truth is that these tactics do more harm than good, and often exponentially more harm than good. They create environments of secrecy, mistrust, and fear, where the church or ministry should be a place of openness, safety, and love.
If you've been part of a church or Christian organization that has used these agreements to silence you. I want you to know that your voice matters, your story matters, and no legal document can take that away from you.
To those in leadership positions, I urge you to reconsider how these types of agreements and tactics and cultural dynamics are being used. Are they truly protecting the church or are they protecting reputations at the expense of truth and justice and loving the people of God? We should never prioritize image over integrity, especially in the body of Christ.
Let's be a people who seek the truth even when it's difficult. We should seek the truth personally as hard and as humbling as that may be so that we can become refined and become more like the Christ that we claim to serve.
I hope you'll join me Monday in the Chicken and Bones episode where we talk about what to take and what to leave. I can tell you we're going to leave the NDAs. What can we learn and take away from this topic of silencing and NDAs and this culture that's happening in our churches?
I hope then you'll join us on Wednesday as I share a little bit more of my own personal experience with silencing, being under a gag order, how that came about, and what happened as a result.
Thanks again. See you next week.
Warmly,
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