A federal judge denied fired Stars and Stripes ombudsman Jacqueline Smith’s request to be swiftly reinstated to her job in an opinion released Tuesday — but did not outright dismiss her case, which claims her firing was a violation of her First Amendment rights.
The Pentagon fired Smith in April from her position as the military newspaper’s ombudsman, a role charged with safeguarding the paper’s independence.
Smith sued the Pentagon earlier this year in U.S. District Court in Washington, claiming retaliation for publishing an opinion piece that criticized Pentagon officials for axing comics from the paper. Another federal judge declined to block the department from firing three other staff members last month.
Judge Amit Mehta denied Smith’s petition for reinstatement, saying her speech as a public employee was only protected while speaking “as a citizen” and not as part of her ombudsman duties.
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Mehta declined to dismiss the case outright, questioning whether the same legal precedent that did not protect Smith’s speech while working for the paper would also mean that she “therefore enjoys no First Amendment protection from an adverse employment action.”
The Justice Department’s justification for dismissal relies on an argument that “would mean the First Amendment is but a hollow promise for Stars and Stripes journalists — and perhaps its Ombudsman,” Mehta, a Barack Obama appointee, wrote.
The judge gave the Department of Defense until Oct. 20 to renew its motion to dismiss or respond to Smith’s complaint.
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