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Baltimore Officer's First Amendment Lawsuit Reinstated

By Jerry Markon
Washington Post Staff Writer
Saturday, April 4, 2009

A federal appeals court has reinstated a lawsuit filed by a police officer who said he was fired because he gave information to a reporter, handing the media a rare victory in the legal battle over confidential sources.

The ruling by the U.S. Court of Appeals for the 4th Circuit came in the case of Michael Andrew, who sued the Baltimore Police Department over the 2003 police shooting of an elderly man. He contended that officials retaliated against him for disclosing details of the investigation to a reporter for the Baltimore Sun, violating his First Amendment right to free speech.

A federal judge in Baltimore threw out the lawsuit, but the Richmond-based 4th Circuit overturned that decision Thursday. In a concurring opinion, Judge J. Harvie Wilkinson III lamented what he called the decline of investigative reporting and said confidential sources are vital to exposing the inner workings of government -- especially at a time when newspapers are struggling financially.

"That scrutiny is impossible without some assistance from inside sources such as Michael Andrew," wrote Wilkinson, a leading judicial conservative and former editorial page editor for the Virginian-Pilot newspaper in Norfolk. "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."

Lawyers said it was unusual for a judge to so strongly support the news media and said the decision could encourage whistleblowers and other confidential sources to come forward. Journalists have suffered a series of court defeats in their efforts to shield newsgathering activities from the legal process as judges have ordered numerous reporters to disclose confidential sources in criminal and civil cases.

The decision "warms what had been a very chilling atmosphere for government sources and journalists," said Rodney Smolla, dean of Washington and Lee University's law school and an expert on First Amendment law.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington County, said the decision will be "very useful" in lobbying Congress to pass a shield law to protect reporters from having to testify about confidential sources in most circumstances. The House passed the bill this week, and it is pending in the Senate.

Media organizations, including The Washington Post Company, have lobbied for the measure, but some Republican senators and prosecutors have expressed concerns that it could hamper national security and other investigations.

Andrew, a Baltimore Police major, gave the Sun a memo in which he questioned whether police used excessive force in the shooting of Cephus Smith, who had barricaded himself in his apartment after killing his landlord. Andrew was rehired after filing his lawsuit in 2004 and is now a police lieutenant colonel. A lawyer for Andrew, Howard B. Hoffman, called the 4th Circuit decision "an outstanding win for public employees who are fed up with wrongdoing in their agencies."

Anthony Guglielmi, a Baltimore police spokesman, declined to comment.

Staff writer Walter Pincus contributed to this report.

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