On April 2, 2009, the U.S. Court of Appeals for the 4th Circuit delivered an opinion that should be considered nothing less than a victory for openness and accountability in government and for the protection of free speech. At the core of the court's decision was the affirmation that government workers who speak up against injustice inside their agency are protected by the First Amendment. Thanks to this ruling, public employees seeking to point out abuse or incompetence inside government can feel a little more secure when they blow the whistle.
The case in question was Andrew v. Clark, a legal battle stemming from Baltimore police commander Maj. Michael Andrew losing his job over his questioning of the necessity of a police shooting. In December 2003, Baltimore police shot and killed an elderly murder suspect who had barricaded himself in his home. A little over a week later, Andrew wrote a memo laying out his concerns with the shooting and questioning whether it had unnecessarily placed officers in harm's way. He sent this memo up the chain of command. After having his concerns dismissed out of hand, he provided the memo to the Baltimore Sun, which quoted from it in great detail in a January 2004 article. In response, Andrew was fired from the police department.
Andrew then filed suit claiming that his freedom of speech was being abridged. A district court held that he did not have freedom of speech protections in this case, based on the Supreme Court's ruling in Garcetti v. Ceballos, which held that there are no First Amendment protections for statements by governmental officials if these statements are made as part of their official duties. This ruling by Maryland's 4th District Court would have had huge implications on the ability of whistleblowers and watchdogs to do their jobs without fear of reciprocity. It's worth noting that the decision was authored by Judge Andre Davis, who was recently nominated by President Obama for an open seat on the 4th Circuit. POGO hopes that the President will take a second look at the opinions of Judge Davis and their dangerous implications in regards to free speech and government transparency.
To the great relief of free speech advocates and government watchdogs like POGO, the appeals court overturned the district court's decision (on the very same day that Judge Davis was nominated by President Obama), stating that the Garcetti v. Ceballos case did not apply because the whistleblowing activities of Andrew (i.e., writing the memo and then providing it to the press) went above and beyond the simple duties of his job. Thus, the whistleblowing was protected speech.
In a concurring opinion, Judge Wilkinson helped explain his reasoning by providing an argument for the crucial role that whistleblowers must play in keeping the government in check:
“And the matter about which Andrew spoke was not just an office quarrel or routine personnel action, but a question of real public importance, namely whether a police shooting of a citizen was justified and whether the investigation of that shooting was less than forthcoming. 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.” (emphasis added)
In the same opinion, Judge Wilkinson also lamented the decline in investigative reporting, and the effect that it could have on government accountability:
“The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times, because such reports take time to develop and involve many dry (and commercially unproductive) runs. And in 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.” (emphasis added)
We think there is an important lesson to be learned from the Andrew decision and from the appeals court's opinion: as government spending grows and newspapers shrink, the role of the whistleblower becomes even more crucial. If we want an open and accountable government, and if we wish to avoid corruption and abuse, we must protect the First Amendment rights of our whistleblowers--men and women who, in many cases, are the only ones in a position to spot the abuses of our federal government.
-- Jerry Dunleavy
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