Judge upholds First Amendment rights of Dewey resident

A no-contact order against Jeffrey Smith was modified by a Court of Common Pleas judge Aug. 23, allowing Smith to attend meetings and contact city officials.

Dewey Beach Police obtained a no-contact order against Smith Aug. 10 that prohibited Smith from contacting Dewey town commissioners and audit committee members. Smith was also charged with theft and disorderly conduct after an Aug. 3 audit committee meeting.

Smith’s attorney, Tim Willard, requested modification of the no-contact order to permit contact with commissioners and audit committee members, except audit committee Chair Larry Silver.

“My motion speaks for itself,” Willard said. “Smith’s coalition has been investigating the police department, and with the election coming up, he needs to attend council meetings and a debate coming up this weekend.”

Willard said Smith, 56, has no criminal history and is not a threat to any Dewey commissioner or audit committee member.

“He needs to be allowed to exercise his free speech,” Willard said. “It’s unusual to have the victim be a town which is also the subject of Smith’s coalition’s concern.”

Judge Rosemary Betts Beauregard said the no-contact order was vague because it failed to specify who Smith was not to contact.

“I don’t understand who is the complaining witness,” she said.

Beauregard asked prosecutor Caroline Brittingham to name Dewey town commissioners and audit committee members, or to at least state how many members are on the council or committee.

Brittingham was unable to provide names or numbers. No members of Dewey’s town council, audit committee or police department were present at the hearing.

Brittingham said Dewey Town Manager Scott Koenig said Smith could contact council or audit committee members by email or phone, but not face-to-face.

Beauregard overruled Koenig’s position.

“The motion is granted,” Beauregard said.  “He may have contact at meetings and through email as long as it is lawful.”

Smith pleaded not guilty to the theft and disorderly conduct charges, and requested a jury trial, set for Wednesday, Oct. 10.

First Amendment experts weigh in

Rebecca Snyder is executive director of the MDDC Press Association that represents news media organizations in Delaware, Maryland and the District of Columbia.

“Jeff Smith is not a criminal,” she said. “The MDDC Press Association condemns the actions of the Dewey Beach audit committee which charged Mr. Smith with disorderly conduct and theft of a draft audit report.”

Snyder said citizens have the right to know how government transacts business on their behalf, and that government should provide open access to documents to encourage citizens’ knowledge and oversight.  

“The arrest of Mr. Smith sends a chill down the spine of open government advocates everywhere,” she said. “This is bold intimidation of the public and a clear message by the audit committee that the members do not see themselves as accountable to the public.”

First Amendment attorney Charles D. Tobin of the Washington, D.C. law firm Ballard Spahr agreed.

“The bill of rights protects people from their government, not the government from the people,” he said. “Watchdog citizens like Mr. Smith deserve all protections under the First Amendment.  In prosecuting him for walking out of a public meeting with a document the committee freely handed out – and then ordering him to stay away from further council meetings – the Dewey government has provided him with no protection at all.”