Court Outlines Free Speech Rights of Political Candidates

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By Hassan Kanu

July 8 — A deputy court clerk in South Carolina who was fired after she ran against her boss when he sought re-election had her political discrimination case revived by the U.S. Court of Appeals for the Fourth Circuit ( Lawson v. Union Cty. Clerk of Court , 2016 BL 218178, 4th Cir., No. 14-2360, 7/7/16 ).

The First Amendment protects public employees from punishment for their political speech or the act of running for office. But officials and governments can fire or otherwise discipline a worker in a high-level “confidential or policymaking” position.

Importantly, the July 7 decision in Melanie Lawson's case against Union County outlines the Fourth Circuit's standards for determining whether a government worker falls under that exception to the U.S. Constitution's protections against political bias.

“The government in this case said ‘it's OK for us to fire her because she's a relatively high-level employee, and the government can demand political loyalty and fire those who don't show it,' ” UCLA law professor Eugene Volokh told Bloomberg BNA July 8.

“The Fourth Circuit has now given lower courts an extra data point to consider: Where the employee might be one level down from a policy-maker, if their responsibilities are fundamentally administrative, then you can't grant summary judgment based on the exception for high-level, policy-making employees,” he said.

Volokh wrote an amicus brief in support of Lawson in conjunction with the Brennan Center for Justice, the Pennsylvania Center for the First Amendment and Common Cause. Attorneys for the county couldn't be reached for comment.

Inquiry Concerns Practical Duties, Not Titles

Practically, Lawson was responsible for administrative duties like collecting receipts and record keeping.

Her boss, William Gault, said he fired Lawson because she indicated during her campaign that a co-worker Gault had personally hired was connected to alleged accounting irregularities. Gault said the statements could undermine his authority, and the county argued they would have disrupted the office's operations.

Union County argued essentially that her position required political loyalty, or was a confidential or policy-making role, because deputy clerks are authorized by state law to perform all the functions of the county clerk once they're sworn in. The county also “emphasized Lawson's supervisory title,” alleging that this indicates the high-level, policy-making nature of her job. The district court agreed.

The Fourth Circuit said the lower court was incorrect to focus on the position's statutory authority or “Lawson's supervisory title” because those factors don't indicate conclusively that Lawson was a policy-making employee.

The “ultimate inquiry is not whether the label ‘policymaker' or ‘confidential' fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved,” Judge Allyson Duncan wrote.

It was therefore improper to grant summary judgment to the county because “there is no evidence before us that a deputy clerk's political ideology would affect the manner in which she performed her role,” the court held. It told the lower court to either allow additional discovery, consider renewed summary judgment motions or order a trial.

Volokh Looks Forward

On remand, the county could offer additional evidence to show Lawson's role is a policy-making one and file for summary judgment again.

It could also proceed to another manner of defending itself: showing that its interests in preventing disruption in the workplace outweigh Lawson's and the public's interest in her campaign and political speech.

“On one hand, they could say ‘look she alleged misconduct by another clerk and those people won't be able to work with or trust her, so we had to let her go,' ” Volokh said. “She would respond by saying, ‘It's only speculation. People should have been professional enough to continue working with me, and they would have been.' ”

Volokh said Lawson could also argue that her political speech outweighed the county's interests by showing that “it's actually good for the efficiency of the government for elected officials to know they have serious challengers. By allowing this kind of speech, we're promoting democratic accountability and the ability to criticize those in office, which promotes government efficiency.”

‘Hyperbolic' Dissent?

Judge Andre Davis penned a lengthy dissent that his colleagues called “gratuitous” and “hyperbolic.”

Davis argued that summary judgment should be granted to Lawson because the county's evidence, taken together, doesn't establish that Lawson was in a policy-making position. Moving forward in the inquiry, Davis said the county also failed to show its interests in efficient operations outweighed Lawson's political candidacy and speech.

There is therefore no material dispute remaining to be settled, the judge said.

Munger, Tolles & Olson and John Reckenbeil represented Lawson.

To contact the reporter on this story: Hassan Kanu in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

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