In the case Andrew v. Clark, would the memo that Andrew sent to the press be considered protected 1st Amendment speech?

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In this case, the District Court held that the memo that Andrew submitted to the newspaper was not protected by the First Amendment.  However, the 4th Circuit Court of Appeals overruled the District Court, holding that the memo was protected.

The crux of this case was the nature of the memo.  Was it something that was produced pursuant to Andrew’s duties as a police officer or was it something that he had done as a private citizen?  If it was produced pursuant to his duties, it would not have been protected by the First Amendment.

The Circuit Court found that the memo was not part of Andrew’s duties.  It was not common for him to write memoranda regarding cases in which the police used deadly force.  It was, in fact, characterized by Andrew’s superiors as an “unauthorized” memo.  Because of this, it was clear that Andrew’s memo was not something that he had produced as part of his duties.

Therefore, when Andrew gave the memo to the newspaper, he was essentially acting as a private citizen. He had the same First Amendment rights as any private citizen would have.  The memo, then, was protected by the First Amendment.

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