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4th Circuit Lets First Amendment Case Go Forward Against Baltimore Police

By Sean E. Andrussier

Today, in Andrew v. Clark, the Fourth Circuit reversed the 12(b)(6) dismissal of a First Amendment suit brought by a Baltimore police officer claiming that officials with the Baltimore Police Department (BPD) retaliated against him for providing to the Baltimore Sun an internal memo he had written. The memo called for an investigation to determine if the use of deadly force by a tactical unit of the BPD against a barricaded suspect was justified and properly conducted.

But the most fascinating part of today's decision is the concurring opinion filed by Judge Wilkinson. Judge Wilkinson (former editorial page editor for the Norfolk Virginian-Pilot) used this as an opportunity to decry the fact that investigative journalism has been shortchanged as newspapers have struggled to survive in an age of online media outlets. Here's a bit from his dissent:

"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. As a result, the staffs and bureaus of newsgathering organizations?newspapers and television stations alike?have been shuttered or shrunk. Municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit. 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.

"The verdict is still out on whether the Internet and the online ventures of traditional journalistic enterprises can help fill the void left by less comprehensive print and network coverage of public business. While the Internet has produced information in vast quantities, speedy access to breaking news, more interactive discussion of public affairs and a healthy surfeit of unabashed opinion, much of its content remains derivative and dependent on mainstream media reportage. It likewise remains to be seen whether the web?or other forms of modern media?can replicate the deep sourcing and accumulated insights of the seasoned beat reporter and whether niche publications and proliferating sites and outlets can provide the community focus on governmental shortcomings that professional and independent metropolitan dailies have historically brought to bear.

"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. "

Full post as published by North Carolina Appellate Blog on April 02, 2009 (boomark / email).