The importance of whistle-blowers

Which way should the scales of blind justice tip?

On one side are the First Amendment rights of free speech and redress of grievance of a government employee, as well as the rights of the citizens to see how their government is conducted. On the other side is the duty of the government employer to promote efficiency of public services and maintain employee discipline.

Earlier this month, the 4th U.S. Circuit Court of Appeals put its thumb down on the side of public employees and citizens.

Though the case is far from settled, it is one that could have major ramifications for public employee whistle-blowers and the public's right to know.

The federal appeals court overturned and remanded for further hearings a lower court opinion that had ruled the Baltimore Police Department could fire a police officer for sharing with a newspaper reporter a memo he had written concerning a police shooting that left a murder suspect dead.

In the memo to his bosses, police Maj. Michael Andrew called for an investigation of the shooting, suggesting "officers had not exhausted all peaceful non-lethal options and that the department had unnecessarily placed officers in harm's way," according to the ruling.

He was ignored. He went to the press. He was fired.

After Andrew turned over his memo to a reporter, the department launched an internal affairs probe, accusing him of giving confidential (Read: embarrassing) information to the media.

While the majority opinion in the appellate ruling chastised the lower court for misreading some of the facts in the case and reached a reasonable conclusion, a concurring opinion read like an editorial championing free speech, free press, the public's right to transparency in government conduct and a lament on the chaotic and deteriorating state of the news media in general.

Perhaps that is because it was written by Circuit Judge J. Harvie Wilkinson III, a former editorial page editor for the Virginian-Pilot newspaper in Norfolk, Va.

Judge Wilkinson noted that the issue before the court "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."

If those with first-hand knowledge of the inner workings of our public agencies are muzzled just for the sake of managerial control, how will the voters ever be granted the knowledge necessary to exercise the power of the ballot box to oust corrupt or incompetent officials?

The judge, sounding like he just had dinner with a few of his former newspaper cohorts, also placed this concept in the framework of the current media upheaval.

"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 ..." Wilkinson writes. "The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times ..."

As so many in the belittled, despised and dismissed mainstream media have explained, the judge noted that much of the information found on the Internet -- while speedy, more interactive and with a "healthy surfeit of unabashed opinion" -- "remains derivative and dependent on the mainstream media reportage (and) the deep sourcing and accumulated insights of the seasoned beat reporter. ..."

As much as the media, especially newspapers, are vital to sharp scrutiny of the inner workings of our democratic institutions, as Judge Wilkinson notes, "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."

He wraps up his judicial soliloquy with a call to action that would make many an editorialist envious:

"But as the state grows more layered and impacts lives more profoundly, it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view. It is vital to the health of our polity that the functioning of the ever more complex and powerful machinery of government not become democracy's dark lagoon."

Thomas Mitchell is editor of the Review-Journal and writes on the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/mitchell.