Judges and the First Amendment

originally published April 13, 2009

America’s pride has always rested on a key historical fact and some beliefs that arose out of that fact, not all of which have rung true for everyone. We built the first successful democracy. Anyone can achieve anything in America. We are free.

The freedom part rests largely on the Bill of Rights, designed to keep a powerful government from stomping upon its individual citizens. As a criminal lawyer I dealt largely with the Fourth, Fifth, and Sixth Amendments, the ones dealing with the right against unreasonable searches and seizures, the right against self-incrimination, and the right to a lawyer.

But perhaps no amendment generates such American pride as our First Amendment, that one that gave us the freedom of speech and made us such a novelty back in 1791.

In reality, however, the First Amendment freedom can be mighty elusive. For sure, it does keep government—for the most part—from locking up citizens for criticisms and peaceful protests. But when it comes to other repercussions, it isn’t quite so protective, especially when it comes to earning a living.

Peter Hermann of the Baltimore Sun recently wrote about Baltimore police major Michael Andrew. Five years ago, Andrew shared with the Sun a memo he wrote criticizing a police decision to storm the barricaded apartment of a homicide suspect and kill him. Andrew was fired. He sued, and his case was tossed out by a federal judge. Now the Fourth Circuit Court of Appeals has reinstated his lawsuit, holding that Andrew has made a legitimate First Amendment claim. It brought to mind my own experience in speaking out on an issue of public interest the same year, 2004. And I wasn’t even criticizing my own employer.

The Sun had just published an article on some proposed hefty raises for Maryland judges, which the judiciary justified on the grounds that they couldn’t attract enough quality candidates. I wrote a letter to the editor stating my view that the political nature of judicial appointments, not the salaries, was the main barrier to quality candidates. I went on to add that before legislators raised the salaries of District Court judges, they needed to upgrade their duties and responsibilities to make the District Court more useful to the criminal justice system.

I wrote the letter as an individual, using my home address. The Sun, without informing me or providing me an opportunity to withdraw the letter, described me as the Deputy State’s Attorney for Baltimore, making it look as though I was speaking for the office.

And all hell broke loose. Irate judges bombarded the State’s Attorney, Patricia C. Jessamy, with complaints. But the real kicker was District Court Chief Judge James N. Vaughan (now retired). He boasted to colleagues of his demand to Jessamy that she do something about me or he would evict her prosecutors from the District courthouses. When a Daily Record reporter called to confirm this, Vaughan refused to discuss it.

And Jessamy demoted me. Not that I blamed her. What I did was politically unwise, even if constitutionally protected.

But neither did I ever regret what happened. How enlightening it was to see our judiciary in action! There they were, the upholders of the law, the protectors of our freedom, going to my boss to shut me up. (And it wasn’t the first time they tried to chill my rights. When I ran for Circuit Court judge in 1998, Judge John Carroll Byrnes did everything he could to get me to withdraw, including calling Jessamy, who reversed her previous position and ordered me to take an unpaid leave of absence. When that and other efforts couldn’t convince me, Byrnes also made a subtle but unmistakable threat.)

And so it was nice, in an intellectual sort of way, to see the federal judiciary reinstate Andrew’s First Amendment lawsuit. But as a practical matter, the First Amendment makes little difference for those making a living inside a system. Those in the best position to enlighten citizens on matters of public interest are muzzled. Andrews has undergone five years of expensive litigation that still hasn’t come to a conclusion. In my case, people within the criminal justice system, including a county Deputy State’s Attorney, called me to say how refreshing it was to see the truth in print. When I told them what happened to me, they went cold and silent. Free speech was frozen dead.

Employers (and those who have influence over employers) can always chill their employees, judges included. Sitting down in Richmond, passing on a case that didn’t affect them personally, federal judges upheld the First Amendment. Good for them. But when faced with an opinion that could possibly impact their fat raises, state judges acted like any other powerful entity that wants to control information.

Isn’t that nice to know?

Judge Andre Davis and Judge Roger Brown

In reinstating the Andrews lawsuit the Fourth Circuit Court of Appeals reversed the decision of federal District Court Judge Andre M. Davis, who, ironically, was simultaneously nominated by President Obama to join the Fourth Circuit. I remember Judge Davis when he was on Baltimore’s Circuit Court, and was impressed with his ability to quickly assimilate facts and apply the law.

In the Andrew’s case, however, he made a crucial factual mistake which led to an incorrect decision to throw out the lawsuit. This makes Davis human. What is refreshing was his acknowledgment of his humanness, telling the Sun after his nomination that he has gotten his share of “Cs and a few Fs" from the appeals court.

Humility is one quality of a great judge. I like to say that judges are human, only more so. By this I mean that their power often exacerbates their flaws. Humility is the key to using power appropriately.

One of the greatest to exhibit such humility was Baltimore Circuit Court Judge Roger W. Brown, Sr. who recently passed away too soon at the age of 68. He was the ultimate gentleman.

My Judge Brown story comes from 1998 when I was running for Circuit Court judge against nine incumbents. This made me a pariah in the legal community where everyone is supposed to support the sitting judges regardless of whether they are competent or professional. If I happened to be campaigning around the courthouse nearly everyone, including my own colleagues, would walk a wide berth around me.

One day as I approached a street corner across from the courthouse Judge Brown was standing there, and he greeted me with a smile and the utmost courtesy. I stepped off the curb oblivious to an oncoming car and Judge Brown pulled me back. I told him that if by some small chance I happened to win election to the bench, I would make sure to tell everyone that I had him to thank.

Judge Brown laughed and laughed. That is how I will always remember him.