Sunday, July 6, 2014

Free Speech Rights

            Sean P. Smith was employed as an assistant district attorney (“ADA”) for the Mecklenburg County, North Carolina, District Attorney’s office from 2004 through July 2010.  In 2010 Smith met with the district attorney, Pete Gilchrist, to announce his decision to run for the office of Mecklenburg County district court judge.  While Smith was still employed as an ADA, he gave an interview to the Charlotte FOX television affiliate to discuss his concerns with the Charlotte defensive-driving course.  After voicing his concerns about the driving course, Smith was asked were there any other policies within the DA’s that he disagreed with: Smith refused to comment.

            The next day Gilchrist terminated Smith and failed to provide Smith with any reason for the termination.  Smith brought an action in federal district court seeking money damages against Gilchrist as an elected government official.  Smith also claimed that he was terminated as a result of the interview and the termination was a violation of his free-speech rights under the US and NC constitutions.  The United States Court of Appeals, Fourth Circuit, held that Smith’s speech was protected under the First Amendment and Smith could not be fired for making the statements he made unless his right to speak was outweighed by the district attorney’s legitimate interests.  The court explained that the First Amendment protects speech as well as “the right to be free from retaliation by a public official for the exercise of that right.”

            Under the First Amendment a district attorney running for public office has the right to speak publicly, as a candidate, on matters of public concern.  Based on this reasoning. the court reversed the lower court’s order granting summary judgment against Smith and remanded to the district court for trial.  Smith v. Gilchrist, 749 F.3d 302 (4th Cir. 2014).

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