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Constitution of North Carolina

ARTICLE I Declaration of Rights

Sec. 14. Freedom of speech and press.

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).

For comment, "Constitutional Protection for Nonmedia Defendants: Should There be a Distinction Between You and Larry King?," see 33 Campbell L. Rev. 173 (2010).

For article, "North Carolina's Declaration of Rights: Fertile Ground in a Federal Climate," see 36 N.C. Cent. L. Rev. 145 (2014).

For article, "A Reckless Disregard for the Truth? The Constitutional Right to Lie in Politics," see 38 Campbell L. Rev. 41 (2016).

For comment, "Find Out Who Your Friends Are: A Framework for Determining Whether Employees' Social Media Followers Follow Them to a New Job," see 39 Campbell L. Rev. 493 (2017).

For note, "A Picture is Worth a Thousand Material Connection Disclosures: Endorsers, Instagram, and the Federal Trade Commission's Endorsement Guides," see 66 Duke L.J. 1371 (2017).

For article, "The Structure of Modern Free Speech Doctrine: Strict Scrutiny, Intermediate Review, and 'Reasonableness' Balancing," see 8 Elon L. Rev. 291 (2016).

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).

Wrongful Discharge Claim Sufficiently Alleged. - Plaintiffs sufficiently alleged a wrongful discharge claim where they alleged that they were fired: (1) for photographing and complaining about unsafe working conditions in violation of G.S. § 95-241(a)(1)b. and G.S. § 95-126(2); (2) for engaging in union activities in violation of G.S. § 95-81; (3) in retaliation for filing discrimination grievances under G.S. § 95-151; (4) in violation of their N.C. Const., Art. I, §§ 14 and 19 rights; and (5) based in part on race. Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316 (2013), review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013).

Trial court erred in granting an employer's motion to dismiss on the theory that an employee did not adequately plead the causation element of her constitutional claims because the complaint included allegations sufficient to satisfy the pleading requirements regarding the causation elements of her constitutional claims; the employee alleged she was terminated for speaking out against unlawful practices and that the adverse action was in retaliation for her exercise of her constitutional rights. Feltman v. City of Wilson, 238 N.C. App. 246, 767 S.E.2d 615 (2014).

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); Craven v. SEIU COPE, 188 N.C. App. 814, 656 S.E.2d 729 (2008); Petroleum Traders Corp. v. State, 190 N.C. App. 542, 660 S.E.2d 662 (2008); Adkins v. Stanly County Bd. of Educ., 203 N.C. App. 642, 692 S.E.2d 470 (2010); Cox v. Roach, 218 N.C. App. 311, 723 S.E.2d 340 (2012), review denied 366 N.C. 423, 736 S.E.2d 497, 2013 N.C. LEXIS 113 (2013); Desmond v. News & Observer Publ. Co., 241 N.C. App. 10, 772 S.E.2d 128 (2015); Mitchell v. Pruden, - N.C. App. - , 796 S.E.2d 77 (2017).

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 (1980).

Announcement of Sweepstakes Results. - G.S. § 14-306.4 was not overbroad and did not violate the First Amendment, U.S. Const., amend. I, and N.C. Const., Art. I, § 14 since it was concerned only with the attachment of the announcement of a sweepstakes result to a game, which created the functional equivalent of a gambling environment and encouraged the ills the North Carolina legislature sought to remedy; the announcement of the winner was not protected speech as it was an incidental part of the non-communicative activity of conducting the sweepstakes. Hest Techs., Inc. v. State Ex Rel. Perdue, 366 N.C. 289, 749 S.E.2d 429 (Dec. 14, 2012), cert. denied, 134 S. Ct. 99, 187 L. Ed. 2d 34, 2013 U.S. LEXIS 5319 (U.S. 2013).

G.S. § 14-306.4 is not overbroad and does not violate the First Amendment, U.S. Const., amend. I, and N.C. Const., Art. I, § 14 since it is concerned only with the attachment of the announcement of a sweepstakes result to a game, which creates the functional equivalent of a gambling environment and encourages the ills the North Carolina legislature has sought to remedy; the announcement of the winner is not protected speech as it is an incidental part of the non-communicative activity of conducting a sweepstakes. Hest Techs., Inc. v. State Ex Rel. Perdue, 366 N.C. 289, 749 S.E.2d 429 (Dec. 14, 2012), cert. denied, 134 S. Ct. 99, 187 L. Ed. 2d 34, 2013 U.S. LEXIS 5319 (U.S. 2013).

Deputy Sheriff's Political Conduct. - Plaintiff, a deputy sheriff, was not a county employee as defined in G.S. § 153A-99, and could be discharged based upon political conduct without violating her free speech rights under N.C. Const., Art. I, § 14. Young v. Bailey, 240 N.C. App. 595, 771 S.E.2d 628 (2015), dismissed and review granted 775 S.E.2d 832, 2015 N.C. LEXIS 689 (2015), aff'd 781 S.E.2d 277, 2016 N.C. LEXIS 32 (2016).

Deputy sheriff's free speech rights were not violated because mutual confidence and loyalty between a sheriff and a deputy were crucial in accomplishing the sheriff's policies and duties; thus, the deputy could be lawfully terminated for political reasons under the exception to prohibited political terminations; by standing in the elected sheriff's shoes, a deputy sheriff fills a role in which loyalty to the elected sheriff is necessary to ensure that the sheriff's policies are carried out. Young v. Bailey, 368 N.C. 665, 781 S.E.2d 277 (2016).

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).

Employee's wrongful-discharge claim based on the free-speech clause failed because even assuming that the employee's initial allegations of misconduct touched on a matter of public concern, once the alleged misconduct had been investigated and not substantiated, the disruptive effect of her continued conduct outweighed any continued interest in her speech. Iglesias v. Wolford, - F. Supp. 2d - (E.D.N.C. Sept. 28, 2009), aff'd 400 Fed. Appx., 2010 U.S. App. LEXIS 23057 (4th Cir. N.C. 2010).

III. RESTRICTIONS ON EXERCISE OF RIGHTS.

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G.S. § 14-202.5 Held Constitutional. - G.S. § 14-202.5 is constitutional on its face because it is narrowly tailored to serve a substantial governmental interest, and leaves available ample alternative channels of communication. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. § 14-202.5 was not an unreasonable regulation and was constitutional as applied to defendant because the incidental burden imposed upon defendant, who was barred from Facebook.com but not from many other sites, was not greater than necessary to further the governmental interest of protecting children from registered sex offenders. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. § 14-202.5 is drafted carefully to limit its reach by establishing four specific criteria that must be met before access to a commercial social networking Web site is prohibited to a registered sex offender, and these factors ensure that registered sex offenders are prohibited from accessing only those Web sites where they could actually gather information about minors to target, and outside these limits, registered sex offenders are free to use the Internet. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. § 14-202.5 is not overbroad because it does not sweep too broadly in preventing registered sex offenders from accessing carefully delineated Web sites where vulnerable youthful users may congregate; whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

Court of appeals erred in vacating defendant's conviction for accessing a social networking Web site as a registered sex offender on the ground that G.S. § 14-202.5 was unconstitutional because the statute was constitutional in all respects. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. § 14-202.5 is a regulation of conduct because the essential purpose of the statute is to limit conduct, specifically the ability of registered sex offenders to access certain carefully-defined Web sites; this limitation on conduct only incidentally burdens the ability of registered sex offenders to engage in speech after accessing those Web sites that fall within the statute's reach. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

G.S. § 14-202.5 is a content-neutral regulation because on its face, it imposes a ban on accessing defined commercial social networking Web sites without regard to any content or message conveyed on those sites; the limitations are based not upon speech contained in or posted on a site but focus on whether functions of a particular Web site are available for use by minors, and the statute involves a facially content-neutral ban on the use of commercial social networking Web sites. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

Promulgating restrictions such as those contained in G.S. § 14-202.5 on registered sex offenders is within the constitutional power of the General Assembly, and protecting children from sexual abuse is a substantial governmental interest; the interest reflected in the statute, which protects children from convicted sex offenders who could harvest information to facilitate contact with potential victims, is unrelated to the suppression of free speech. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

General Assembly has carefully tailored G.S. § 14-202.5 in such a way as to prohibit registered sex offenders from accessing only Web sites that allow them the opportunity to gather information about minors, thereby addressing the evil that the statute seeks to prevent, and the statute allows alternatives through specific exceptions for Web sites that provide discrete e-mail, chat room, photo-sharing, and instant messaging services; thus, the statute is sufficiently narrowly drawn. State v. Packingham, 368 N.C. 380, 777 S.E.2d 738 (2015).

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).

Newspaper companies were entitled to summary judgment on their action challenging an airport operator's ban on newspaper racks because the ban on the installation of news racks within the terminals substantially burdened the newspaper companies' expressive conduct within that public place, and the operator failed to advance sufficiently powerful interests to justify the burden on protected expression. News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 588 F. Supp. 2d 653 (E.D.N.C. 2008), aff'd, 597 F.3d 570, 2010 U.S. App. LEXIS 5216 (4th Cir. N.C. 2010).

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), aff'd and rev'd in part, 355 Fed. Appx. 717, 2009 U.S. App. LEXIS 26668, (4th Cir. N.C. 2009).

Employee's copying and distribution of the salary information was not speech or activity protected under the First Amendment or N.C. Const., Art. I, § 14 because the activity did not involve a matter of public concern; the employee's argument that G.S. § 115D-28 conferred a per se public concern status on the distribution of salary information because any person who was denied access to the information could compel compliance by obtaining judicial relief was rejected. Even if the employee's activity deserved constitutional protection, qualified immunity would still protect the community college president and the vice-president. Munn-Goins v. Bd. of Trs. of Bladen Cmty. College, 658 F. Supp. 2d 713 (E.D.N.C. 2009), aff'd, 2010 U.S. App. LEXIS 17941 (4th Cir. N.C. 2010).

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).

Discharge of County Sheriff's Deputy And Employee. - Deputy sheriff was discharged based upon political conduct without violating free speech rights. Dismissal of another employee's claim for violation of the employee's rights to free speech was appropriate because the sheriff produced evidence that the employee was discharged for failure to comply with the sheriff's department rules and policies, and the employee failed to produce specific evidence that the employee's discharge was politically motivated. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570 (2015), dismissed 368 N.C. 284, 775 S.E.2d 835, 2015 N.C. LEXIS 713 (2015), aff'd 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

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).

Ballot Access Rules Held Constitutional. - While North Carolina's ballot access scheme inevitably burdened the associational rights of members of small parties as well as the informational interests of all voters regardless of their party affiliation, it also found that associational rights were not absolute and were necessarily subject to qualification if elections were to be run fairly and effectively. Because a legislative enactment had to be upheld unless its unconstitutionality clearly and unmistakably appeared beyond a reasonable doubt or it could not be upheld on any reasonable ground, the appellate court held that G.S. § 163-96(a)(2) was not violative of N.C. Const., Art. I, §§ 12 or 14, or of the "law of the land" clause of N.C. Const., Art. I, § 19. Libertarian Party of N.C. v. State, 200 N.C. App. 323, 688 S.E.2d 700 (2009), aff'd in part and modified in part, 365 N.C. 41, 707 S.E.2d 199, 2011 N.C. LEXIS 142 (2011).

Requirements of G.S. § 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political party was not subject to strict scrutiny, when challenged as being contrary to the due process, freedom of speech and association, and equal protection provisions of N.C. Const., Art. I, §§ 12, 14, and 19 because the requirements did not severely burden associational rights, as: (1) minority parties seeking recognition had over three and one-half years to obtain the required signatures; (2) statute put few restrictions on signatories, since signatories did not have to register with or promise to vote for candidates of the party seeking recognition, and could vote in a major party's primary; (3) handful of supporters could obtain the required signatures; and (4) requirements were readily achievable. Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011).

Requirements of G.S. § 163-96(a)(2) that a political party obtain at least two percent of the votes for governor in the last election or that number of signatures on a petition to be considered a political party did not violate the due process, freedom of speech and association, and equal protection provisions of N.C. Const., Art. I, §§ 12, 14, and 19 because the requirements: (1) were not subject to strict scrutiny; (2) imposed a reasonable hurdle to ballot access, as signatories were not disqualified for voting in another party's primary, the requirements were more permissive than requirements upheld by the U.S. Supreme Court; and (3) did not discriminate against minor parties or operate to freeze the political status quo of a two-party system. Libertarian Party v. State, 365 N.C. 41, 707 S.E.2d 199 (2011).

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