dissenting.
I respectfully dissent.
Stripped of the protective verbiage surrounding it, the plain truth is that the plaintiff was fired because he testified before a grand jury in violation of an ultimatum from the Chief of Police that he not do so.
That ultimatum is as follows:
*285“This is to advise you that you shall not proceed with any evidence to the next Grand Jury or any other court, news media, or any other persons concerning this case unless you have prior clearance from either me or the city manager.” 1
In my view this attempt by the Chief of Police of the City of Columbia to shut the mouth of officer Watts is totally invalid on its face. Such a gross, sweeping attempt to deprive the plaintiff of his right to speak clearly violates his rights under the freedom of speech guaranties of both the State and Federal Constitutions. See the Perry, Garrity, Pickering and Givhan cases cited in the majority opinion.
This attempted “gag order” is invalid, however, for a different reason, i. e., every citizen has access to testify before the grand jury in this state. Any attempt to cut off that access is against public policy. The grand jury may act by presentment as well as by indictment. It is absolutely intolerable in a free society that any public employee may be forbidden to go before a grand jury and give testimony of facts within his knowledge respecting criminal offenses. Police officers sometimes become aware of criminal offenses committed by other police officers or their superiors, or their civilian cronies. When this occurs, is the officer to run the risk of losing his employment if he testified before the grand jury with respect to such offenses in spite of a “gag order” such as the one here? Let us hope not.
I would hold that the “gag order” attempted here was invalid and, thus, that its violation is insufficient ground to discharge officer Watts.
Although it is clear to me that the charge of conduct unbecoming an officer was not really the basis, or part of the basis, for plaintiff’s discharge, if it were I would hold that there is no material evidence upon which to make this finding here. The conversation between the plaintiff and the District Attorney General was private. Moreover, there was provocation for such display of temper on the part of officer Watts as occurred.
I would reverse.
FONES, J., joins in this dissent.
. Letter from Chief of Police to plaintiff received February 21, 1977.