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A&A: What Are the First Amendment Rights of Elected Officials to Publicly Voice Opinion ?

Q: I am an elected official in the town where I reside. Recently, at the beginning of a Council meeting, after the meeting had been called to order but before any agenda item was undertaken, I made a statement about gun violence and my belief that stricter gun laws are in order. I made clear that the views were my own and not those of the City. A local second amendment rights advocate viewed the internet stream and has begun an effort to have me removed from office. The public had an opportunity to respond during Public Comment and, in fact, one attendee spoke to my comments.

A simple question; is this protected speech?

A: It would seem that as an elected official, and one who has opinions on issues that might differ from some of his constituents’ viewpoints, you are entitled to state your opinions as you see fit.  If this constituent is intent on recalling you, he will have to follow specific procedures per the Secretary of State’s requirements for recalling elected officials, as described on the SOS website here: http://www.sos.ca.gov/elections/recalls/procedure-recalling-state-and-local-officials/.

Unfortunately, we do not have the resources here at the FAC to provide an analysis of whether a recall where the stated reason was that you voiced your support for gun control would pass First Amendment muster if challenged in court.  That said, you certainly have a First Amendment right, as an elected official, to state your opinion at council meetings and in other public forums.  In any event, my guess is that any recall effort by this constituent will be an uphill battle, given the specific procedures he must follow.

Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

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