Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
History Note. - The provisions of this section are similar to those of Art. I, § 20, Const. 1868.
Legal Periodicals. - For article analyzing the evolution of free speech rights under U.S. Const., Amend. I in North Carolina, see 4 Campbell L. Rev. 243 (1982).
For article, "Of Libel, Language, and Law: New York Times v. Sullivan at Twenty-Five," see 68 N.C.L. Rev. 273 (1990).
For note, Striking an Unequal Balance: The Fourth Circuit Holds that Public School Teachers Do Not Have First Amendment Rights to Set Curricula in Boring v. Buncombe County Board of Education, see 77 N. C. L. Rev. 1960 (1999).
For article, "A Kantian Right of Publicity," see 1999 Duke L.J. 383.
For article, "Political Patronage and North Carolina Law: Is Political Conformity With the Sheriff a Permissible Job Requirement for Deputies?," see 79 N.C.L. Rev. 1743 (2001).
For article, "The Rising Tide of North Carolina Constitutional Protection in the New Millenium," see 27 Campbell L. Rev. 223 (2005).
CASE NOTES
I. General Consideration.
II. Unprotected Speech.
III. Restrictions on Exercise of Rights.
I. GENERAL CONSIDERATION.
Editor's Note. - Some of the cases cited below were decided under former Art. I, § 20, Const. 1868.
This section is viewed in the light of the doctrine of "qualified privilege." Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
The basis of the privilege is the public interest in the free expression and communication of ideas. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
This section and N.C. Const., Art. I, § 19 do not require that a statewide standard be judicially incorporated into G.S. 14-190.1 in order to render the statute facially valid. State v. Mayes, 323 N.C. 159, 371 S.E.2d 476 (1988), cert. denied, 488 U.S. 1009, 109 S. Ct. 792, 102 L. Ed. 2d 784 (1989).
A citizen may assert a direct claim for abridgement of her state constitutional free speech rights under the state constitution only absent an adequate state remedy. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).
Previous Federal Claim Does Not Render State Claim Res Judicata. - Claims asserted in the State Court on the basis of this section of the North Carolina Constitution were not identical to the claims asserted by the plaintiff in the Federal Court on the basis of freedom of speech and press under the United States Constitution and dismissal of the state claims on the basis of res judicata was error. Evans v. Cowan, 122 N.C. App. 181, 468 S.E.2d 575 (1996), cert. denied, 343 N.C. 510, 471 S.E.2d 634, aff'd, 345 N.C. 177, 477 S.E.2d 926 (1996).
The words "shall never be restrained" are a direct personal guarantee of each citizen's right of freedom of speech. Corum v. University of N.C. ex rel. Bd. of Governors, 330 N.C. 761, 413 S.E.2d 276, reh'g denied, 331 N.C. 558, 418 S.E.2d 664, cert. denied, 506 U.S. 985, 113 S. Ct. 493, 121 L. Ed. 2d 431 (1992).
Applied in Heritage Village Church & Missionary Fellowship, Inc. v. State, 40 N.C. App. 429, 253 S.E.2d 473 (1979); State v. Barrett, 58 N.C. App. 515, 293 S.E.2d 896 (1982); Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828 (1993).
Cited in Sparrow v. Goodman, 376 F. Supp. 1268 (W.D.N.C. 1974); Heritage Village Church & Missionary Fellowship, Inc. v. State, 299 N.C. 399, 263 S.E.2d 726 (1980); State v. Johnson, 304 N.C. 680, 285 S.E.2d 792 (1982); Renwick v. News & Observer Publishing Co., 63 N.C. App. 200, 304 S.E.2d 593 (1983); Cinema I Video, Inc. v. Thornburg, 83 N.C. App. 544, 351 S.E.2d 305 (1986); State v. Anderson, 322 N.C. 22, 366 S.E.2d 459 (1988); Madison Cablevision, Inc. v. City of Morganton, 325 N.C. 634, 386 S.E.2d 200 (1989); Corum v. University of N.C. 97 N.C. App. 527, 389 S.E.2d 596 (1990); Lenzer v. Flaherty, 106 N.C. App. 496, 418 S.E.2d 276 (1992); Shell v. Wall, 808 F. Supp. 481 (W.D.N.C. 1992); Babb v. Harnett County Bd. of Educ., 118 N.C. App. 291, 454 S.E.2d 833 (1995); North Carolina Council of Churches v. State, 120 N.C. App. 84, 461 S.E.2d 354 (1995); Harter v. Vernon, 953 F. Supp. 685 (M.D.N.C. 1996), aff'd, 101 F.3d 334 (4th Cir. 1996), cert. denied, 521 U.S. 1120, 117 S. Ct. 2511, 138 L. Ed. 2d 1014 (1997); Carter v. Good, 951 F. Supp. 1235 (W.D.N.C. 1996); Caudill v. Dellinger, 129 N.C. App. 649, 501 S.E.2d 99 (1998), cert. denied, 349 N.C. 353, 517 S.E.2d 888 (1998), aff'd, 350 N.C. 89, 511 S.E.2d 304 (1999); Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999); Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601 (2000); Love-Lane v. Martin, 355 F.3d 766 (4th Cir. 2004), cert. denied, - U.S. - , 125 S. Ct. 49, 160 L. Ed. 2d 18 (2004), cert. denied, - U.S. - , 125 S. Ct. 68, 160 L. Ed. 2d 18 (2004); Sheaffer v. County of Chatham, 337 F. Supp. 2d 709 (M.D.N.C. 2004).
II. UNPROTECTED SPEECH.
Racial Slur Is Unprotected Speech. - The use of the word "nigger" by district attorney squarely fell within the category of unprotected speech defined by the Supreme Court. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997).
Use of "Fighting Words" Not Protected. - District attorney's abusive verbal attack on African-American man which gave rise to the inquiry removing him from office was not protected speech under the First Amendment. Instead, when taken in context, his repeated references to victim as a "nigger" presented a classic case of the use of "fighting words" tending to incite an immediate breach of the peace which are not protected by either the Constitution of the United States or the Constitution of North Carolina. In re Spivey, 345 N.C. 404, 480 S.E.2d 693 (1997).
G.S. 163-274(7), prohibiting anonymous, derogatory charges against candidates for primary or general elections, does not violate the free speech guarantees of the U.S. Const., Amend. I, or this section. State v. Petersilie, 334 N.C. 169, 432 S.E.2d 832 (1993).
Commercial Speech Subject to Reasonable Time, Place and Manner Restrictions. - While it is true that commercial speech is protected under U.S. Const., Amend. I and under this section, it is nonetheless true that commercial speech, like other varieties of speech, is subject to reasonable time, place, and manner restrictions. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672.
Balancing of Freedom of Speech and Press and Right to Fair Trial. - The framers of the federal and State Constitutions gave no priorities to the fundamental guarantees of freedom of speech and of the press and the guarantee that every criminal defendant shall receive a fair trial, but left to the courts the delicate task of balancing the defendant's constitutionally guaranteed right to a fair trial against the constitutional guarantees of freedom of speech and freedom of the press. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).
Communication which constitutes harassment of jurors is not protected speech. Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d 4 (2001).
Burden of Justifying "Gag" Rule. - Even pervasive, adverse publicity does not inevitably lead to an unfair trial, and any prior restraint on expression comes to the courts with a heavy presumption against its constitutional validity; thus, one seeking to impose a "gag" rule carries a heavy burden of showing justification for the imposition of such a rule. State v. Williams, 304 N.C. 394, 284 S.E.2d 437 (1981).
Plaintiff's free speech claim failed where her communication focused on her personal trials and tribulations and relief sought therefor and, thus, essentially addressed a private grievance rather than a public concern, and where plaintiff failed to adduce evidence that she suffered any tangible job detriment in retaliation for her complaints. DeWitt v. Mecklenburg County, 73 F. Supp. 2d 589 (W.D.N.C. 1999).
III. RESTRICTIONS ON EXERCISE OF RIGHTS.
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Right to Comment on Matters of Public Interest. - Everyone has a right to comment on matters of public interest and concern, provided he does so fairly and with an honest purpose. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
Such Comments Not Libelous Unless Written Maliciously. - Such comments or criticisms are not libelous, however severe in their terms, unless they are written maliciously. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
North Carolina's standard of fault for speech regarding a matter of public concern, where the plaintiff is a private individual, is negligence, as such a standard strikes the sensitive balance between First Amendment tension regarding speech of public concern, and maintaining the reputation and livelihoods of private individuals who are somehow harmed by the dissemination of this information. Neill Grading & Constr. Co. v. Lingafelt, 168 N.C. App. 36, 606 S.E.2d 734 (2005).
Recovery for Defamation Not Allowed Where Public Interest Outweighs State's Interest. - Where the public interest is sufficient to outweigh the interest of the State in protecting the individual or corporate plaintiff from damage to his or its reputation or social or business relationships, the law does not allow recovery of damages, actual or punitive, occasioned by a defamatory speech or publication. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
When Qualified Privilege Is Applicable. - Qualified privilege will apply to a statement made or article written in good faith, without actual malice (as defined by the law of North Carolina), touching upon a topic in which the speaker or publisher has an interest, or in respect to which he has a duty, public, personal, or private, either legal, judicial, political, moral, or social. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
Whether a publication is privileged is a question of law to be determined by the court. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
Qualified Privilege Not Extended to Sports Reporting. - The North Carolina courts have not, as of yet, extended the doctrine of qualified privilege to the field of sports reporting, nor is there any indication that they will do so in the future. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
Broadcast of Execution. - Plaintiffs (prisoner and television show host) did not have a right under either the First or Fourteenth Amendments to the United States Constitution or under this section to audiotape or videotape prisoner/plaintiff's scheduled execution. Under G.S. 15-190 the execution was under the supervision and control of the warden and, as a matter of law, neither the Secretary of the North Carolina Department of Correction, nor the warden could be mandamused to permit the requested audiotaping or videotaping. Lawson v. Dixon, 336 N.C. 312, 446 S.E.2d 799 (1994).
Malice Necessary to Overcome Qualified Privilege Distinguished from "Actual Malice". - The malice necessary under North Carolina law to overcome the shield of qualified privilege should not be confused with the "actual malice" standard which has been developed from the freedom of the press decisions under U.S. Const., Amend. I. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
North Carolina equates actual malice with reckless or careless publication. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
Falsehood of Statement Not Sufficient to Establish Malice. - In cases of qualified privilege, the falsehood of the statement will not of itself be sufficient to establish malice, for there is a presumption that the publication was made bona fide. Johnston v. Time, Inc., 321 F. Supp. 837 (M.D.N.C. 1970), aff'd in part and vacated in part, 448 F.2d 378 (4th Cir. 1971).
County Sign Ordinance Upheld. - Provisions of a county sign ordinance did not infringe upon defendants' rights of free speech where the ordinance did not attempt to censor the content of signs or to impose any prior restraints on expressions of any kind. County of Cumberland v. Eastern Fed. Corp., 48 N.C. App. 518, 269 S.E.2d 672, cert. denied, 301 N.C. 527, 273 S.E.2d 453 (1980).
City Parade Ordinance Constitutional. - Where a city's parade ordinance was codified under the general heading of traffic, its language was directed to the time, place and manner of parades, and it neither imposed restraint upon speech concerning political matters or matters of public concern nor contained any inkling of discrimination against defendant, who was arrested for participating in a parade without a permit, the ordinance was constitutionally valid. State v. Frinks, 284 N.C. 472, 201 S.E.2d 858 (1974).
Accosting of customers in a private parking lot at a privately owned and operated mall to sign a petition, which was a type of solicitation prohibited by the owners of the mall, was not an exercise of free speech protected by U.S. Const., Amend. I or by N.C. Const., Art. I. State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981).
Editorial Comment. - Editor of a city paper who commented in a sarcastic manner concerning action of city council "with the verbal backing of the mayor" in voting for purchase of a lot by the city did not abuse privilege granted by this section. Yancey v. Gillespie, 242 N.C. 227, 87 S.E.2d 210 (1955).
A contract entered into upon the sale of a newspaper, providing that the seller would not, for a period of ten years, be connected with any newspaper in the State without obtaining the consent of the purchaser, was not void under this section. Cowan v. Fairbrother, 118 N.C. 406, 24 S.E. 212 (1896).
Employee's Right to Free Speech. - The test of whether speech that allegedly leads to the discharge of an employee involves a matter of public concern is whether the employee was speaking as a citizen about matters of public concern, or as an employee on matters of personal interest. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).
Administrator's claims under 42 U.S.C.S. § 1983 against the school board for violation of the administrator's free speech rights under the North Carolina Constitution failed as (1) the administrator's speech involved not only disciplinary practices and the use of a time-out room, but also the administrator's disputes with a supervisor so that the speech was more in the capacity as a public school administrator than as a private citizen; and (2) the school board's interest in maintaining effective functioning of the school by removing the administrative, a disruptive and dividing influence, far outweighed the administrator's interest in First Amendment expression. Love-Lane v. Martin, 201 F. Supp. 2d 566 (M.D.N.C. 2002).
Former at-will employee's claims that alleged that the employee was fired for opposing the employer's unlawful activities, insisting on proper reporting, and demanding the payment of past wages due to employees were dismissed because North Carolina rejected free speech abridgment claims against private sector employers under the North Carolina constitution, which did not recognize a remedy for private sector employees against their employers. Hardin v. Belmont Textile Mach., Co., - F. Supp. 2d - (W.D.N.C. Aug. 3, 2006).
No Right to Recover Against Employer in Individual Capacity. - A public employee who suffers retaliation for his protected speech has a cause of action against his employer directly under this section, and even though sovereign immunity does not bar such a suit, the state constitution does not create a right to recovery against a public employer in his individual capacity. Myers v. Town of Landis, 957 F. Supp. 762 (M.D.N.C. 1996).
Establishing Claim of Retaliatory Discharge. - To properly advance a claim that an employee was discharged in retaliation for exercising her free speech rights under the State Constitution, the speech at issue first must involve a matter of public concern, and, second, such protected speech or activity must have been the motivating or "but for" cause for the employee's discharge. Evans v. Cowan, 132 N.C. App. 1, 510 S.E.2d 170 (1999).
Private Employment. - Plaintiff's refusal to remove a sticker of the Confederate flag from his tool box, which was carried out in private employment, was not constitutionally protected activity. Johnson v. Mayo Yarns, Inc., 126 N.C. App. 292, 484 S.E.2d 840 (1997), cert. denied, 346 N.C. 547, 488 S.E.2d 802 (1997).
Waiver of Right to Freedom of Speech. - Parents offered no evidence to show that their First Amendment right to freedom of speech was not knowingly, voluntarily, and intelligently waived. The parents and their attorney agreed to and executed the mediated settlement agreement, and specifically agreed to the paragraphs which limited their speech regarding the deputy. Estate of Barber v. Guilford County Sheriff's Dep't, 161 N.C. App. 658, 589 S.E.2d 433 (2003).