A former Baltimore police official’s lawsuit, alleging his free-speech rights were violated when he was fired after leaking a memo to a newspaper, was revived Thursday in a ruling by the U.S. Court of Appeals in Richmond (4th Cir.).
Michael Andrew, a 31-year police veteran and district commander, was first demoted and investigated in 2004 after he handed to a Baltimore Sun reporter a memo he’d penned questioning a police-involved shooting in his district. Andrew sued to get his job back on First Amendment grounds.
The police department claimed the memo fell into the domain of Andrew’s official work. He argued the contrary, saying he’d written it of his own accord.
The U.S. District Court dismissed the suit for failure to state a claim, finding that, under Garcetti v. Ceballos, the Supreme Court case that defines the extent of government employee speech, Andrew’s memo was "speech pursuant to his official duties" that did not draw First Amendment protection merely because it was passed to the press.
Writing for the three-judge panel of the U.S. Court of Appeals, Senior Circuit Judge Arthur Alarcon said Thursday the trial court erroneously assumed the memo was "official" on the understanding that commanders routinely wrote up such reports on police-involved shootings in their districts. However, Andrew had disputed this. In deciding whether to dismiss a case, a court must view the facts in the light most favorable to the opposing party — in this case, Andrew.
A coalition of organizations in the employment and civil liberties fields, along with the Reporters Committee, filed a friend-of-the-court brief in the case. Even if Andrew’s memo were written as part of his official duties, the groups argued, a government employee’s speech to the press or the public is in most cases constitutionally protected — so long as it deals with a matter of public concern. They said Andrew’s memo clearly did.
The Fourth Circuit did not go that far, overturning the dismissal instead on the dispute over Andrew’s "official duties."
However, in an unexpected gem of a concurring opinion for advocates of watchdog journalism, Circuit Judge J. Harvie Wilkinson considered the case through the lens of newsroom cutbacks and plunging budgets industry-wide. That traditional beat reporting is hobbled today, said Wilkinson, a onetime news editor, places a high premium on the First Amendment protections afforded to government employees who would speak out of their own accord:
To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government. And those effects would be felt at a particularly parlous time. It is well known that the advent of the Internet and the economic downturn have caused traditional news organizations throughout the country to lose circulation and advertising revenue to an unforeseen extent. . . . [I]n these most difficult of times, not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged. So, for many reasons and on many fronts, intense scrutiny of the inner workings of massive public bureaucracies charged with major public responsibilities is in deep trouble.
There are pros and cons to the changing media landscape, and I do not pretend to know what assets and debits the future media mix will bring. But this I do know — that the First Amendment should never countenance the gamble that informed scrutiny of the workings of government will be left to wither on the vine. That scrutiny is impossible without some assistance from inside sources such as Michael Andrew. Indeed, it may be more important than ever that such sources carry the story to the reporter, because there are, sad to say, fewer shoeleather journalists to ferret the story out.