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Editorial Advisory Board: No place for gag orders or acrimony

Most readers of this newspaper are aware of the continuing controversy over the rights of those who allege in lawsuits that they have been wronged by the misconduct of Baltimore city police officers and then attempt to settle those claims while retaining their First Amendment rights to free speech. Hopefully, readers also are aware of the 4th Circuit’s opinion in July chastising Baltimore city for its efforts, as part of those settlements, “to curb speech that is not to its liking.”

The opinion’s description of those efforts should be concerning to us all: “Standing shoulder to shoulder with the citizenry’s interest in uninhibited, robust debate on public issues is this nation’s cautious ‘mistrust of governmental power.’ This mistrust is one of the ‘premises’ of the First Amendment and we think it well-warranted here, because the non-disparagement clause is a government-defined and government-enforced restriction on government-critical speech.” The opinion continues: “Indeed, when the government (1) makes a police-misconduct claimant’s silence about her claims a condition to settlement, (2) obtains the claimant’s promise of silence, (3) retains for itself the unilateral ability to determine whether the claimant has broken her promise, and (4) enforces the claimant’s promise by, in essence, holding her civilly liable to herself, there can be no serious doubt that the government has used its power in an effort to curb speech that is not to its liking.”

Equally concerning to this Editorial Board, however, is the reported outburst of the city solicitor at a recent meeting of the Board of Estimates – an outburst that occurred just two days after a City Council hearing on a bill that would unequivocally put an end to the gag provisions. According to the published report of two who were present at the meeting, the city solicitor tore into those supporting the City Council bill, expressing particular personal animosity toward the ACLU. Seeming to equate certain speech that is not to his liking with, and being, “lies,” the city solicitor is reported to have said: “Anybody can lie anytime they want. And people can be called a liar, as I have been called a liar by the ACLU.”

The reported response of the ACLU to these comments seems particularly apt: “The mayor and city solicitor should stop defending their unconstitutional practice and stop seeking to perpetuate it.”

Our city solicitor was a highly respected jurist for many years. He embodied that which is said to have originated with Socrates — at least in the form of a saying attributed to him, as found in “Socrates, in the Quotable Lawyer” 142 (David S. Shrager & Elizabeth Frost eds., 1986): “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially.”

Though our city solicitor is now the city’s lawyer and no longer a judge, we hope he will embody those four things he embodied as a judge to the fullest extent possible in his current position. The problems our city faces are vast. Acrimony will not help to solve them.

Editorial Advisory Board member Arthur F. Fergenson did not take part in this editorial.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

L. Mark Stichel

Michael P. Van Alstine

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.