ON APPEAL FROM THE JUDGMENT AND ORDERS OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-766
Van Dusen, Adams, Circuit Judges, and Nealon, District Judge.
This case presents a novel question of First Amendment jurisprudence; namely, whether the imposition of a "prior restraint" by a public agency upon the speech of its employees was justified by the agency's interest in curtailing certain political activity by such employees. We hold that, in the circumstances presented here, the restraint constituted an impermissible infringement of the employees' rights of free expression.
An understanding of the case requires a rather extensive exposition of the factual backdrop.
The appellants, plaintiffs in the district court, are four former employees of the Philadelphia Housing Authority ("PHA"). They were summarily discharged from their jobs for refusing to sign a "Memorandum" directing that they refrain from making any statements regarding an election among PHA tenants. The PHA is a public agency created by state statute*fn1 for the purpose, inter alia, of providing "low-income" housing. It administers and maintains upwards of 20,000 housing units, where more than 100,000 persons reside.*fn2 Appellee Gilbert Stein was the Executive Director of the PHA, serving in that capacity from August of 1972, until February of 1973.
The Resident Advisory Board, Inc. ("RAB") purports to be the formal representative of public housing tenants in Philadelphia. At the time Mr. Stein became Director of PHA, there existed a controversy between PHA and RAB over whether RAB's representation of tenants should continue and, indeed, whether RAB was in fact representative of the interests of Philadelphia public housing residents.
In October, 1972, PHA decided to hold a "plebiscite" or referendum to determine whether public housing tenants, in their dealings with the PHA, desired representation by RAB. The vote was initially scheduled for December, 1972. In November, 1972, prior to the date set for the election, Mr. Stein caused to be issued to all PHA employees the following "Memorandum:"
"No PHA employee shall engage in any form of interference during the upcoming tenant plebiscite to determine whether residents of the PHA-managed properties want to be represented by the RAB Corporation
It is the policy of this authority to encourage all tenants to exercise their right of choice . . . but there should be no attempt by PHA employees to discuss RAB politics with tenants, either pro or con.
Any employee who engages in such activity will be subject to immediate dismissal (emphasis added)
I have read the above and understand that as an employee of the Philadelphia Housing Authority, I must abide by this restriction.
Mr. Stein was apparently of the opinion that, if permitted to do so, many PHA employees would campaign actively against the RAB, that violent confrontations might result, and that PHA tenants might be influenced by PHA employees to vote against the ...