UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: April 16, 1974.
BRENDA ALDERMAN, FLOYD SIMITH, JERRI WILLIAMS, AND KAY DEMING APPELLANTS
THE PHILADELPHIA HOUSING AUTHORITY, GILBERT STEIN AND THOMAS J. KELLY, INDIVIDUALLY AND IN THEIR CAPACITY AS PAST AND PRESENT EXECUTIVE DIRECTORS OF THE PHILADELPHIA HOUSING AUTHORITY; THOMAS MCINTOSH, JAMES KNOWLAND, CARMELITA LERNER, FROSTEENA KEE, AND WILLIAM RAFSKY, INDIVIDUALLY, AND IN THEIR CAPACITY AS TRUSTEES OF THE PHILADELPHIA HOUSING AUTHORITY, APPELLEES
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.
Opinion OF THE COURT
ADAMS, Circuit 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 RAB.*fn4 His reaction was to issue the memorandum set forth above.
Subsequent to the issuance of the Stein memorandum, but before the plebiscite scheduled for December of 1972 could be held, RAB brought a suit in the district court to enjoin the election.*fn5 As a result, the vote was postponed until May of 1973. On December 11, 1972, PHA and RAB entered into a stipulation in that lawsuit, approved by the district court, which provided in part that:
"The Philadelphia Housing Authority agrees that it will not take a position on the election provided for above. This shall not prevent PHA from answering any criticisms of its personnel or policies."*fn6
All but 65 of the PHA's employees agreed to, and did, sign the Stein memorandum.*fn7 Four of the non-signers, the appellants in this case, were discharged for their failure to sign. Some explanation of the circumstances surrounding the refusal to sign by each of the four appellants may be helpful here.
Appellant Deming, a social worker, stated in a letter to the PHA that "I find it impossible to sign the attached memo because I view it to be a waiver of my First Amendment rights of free speech . . . ."*fn8 She also indicated that some discussion of the upcoming PHA-RAB election with her clients might prove to be a necessary aspect of her professional duties, and that, in any event, she wished to express her views during off-duty hours. At least by her own understanding, she did have some "responsibility of not expressing my ideas while at the same time representing myself as an employee of PHA." Deming was dismissed from PHA employment on December 19, 1972, for the express reason that she had refused to sign the Stein memorandum.*fn9
Appellant Smith, in a letter to PHA dated December 29, 1972, indicated an initial willingness to sign the Stein memorandum, provided Smith received assurance that the memorandum reflected only an attempt by PHA to comply with the Stipulation that had been entered on December 11, 1972 in the RAB-PHA lawsuit.*fn10 Smith never received a response to his letter. For his failure to sign, he was dismissed by PHA on December 29.
Appellant Alderman attempted, unsuccessfully, to discuss the memorandum with Mr. Stein. On January 5, 1973, she was dismissed by PHA for her failure to sign. Appellant Williams was likewise dismissed, on December 29, for failure to sign the memorandum. Both Ms. Alderman and Ms. Williams were public housing tenants while they were employed by PHA. All four appellants, upon beginning to work for PHA, had signed a Hatch Act pledge, prohibiting them from active partisan participation in political campaigns.
Although they refused to sign the memorandum, it is uncontested that none of the appellants ever interfered in the RAB election, and that none of them ever discussed RAB politics with public housing tenants prior to their dismissal.*fn11
As previously noted, Mr. Stein ceased serving as Executive Director of PHA on February 20, 1973. However, on March 2, 1973, the PHA house organ "The Good Neighbor" published a "report" by Mr. Stein that commented extensively on PHA-RAB relations and on the upcoming plebiscite.*fn12 On May 9, 1973, the district court in the PHA-RAB litigation, issued an order enjoining PHA from, inter alia, "making known" its position on the upcoming plebiscite.
In April of 1973, Alderman, Williams, Smith and Deming brought suit in the district court, under 42 U.S.C. § 1983, against Mr. Stein and PHA, contending that the appellants' discharges from employment trenched on certain of their civil rights.*fn13 The complaint was framed in three counts: Count I alleged that the memorandum as implemented by the discharges amounted to an unconstitutional prior restraint on speech, Count II sought to have the Stein memorandum declared unconstitutionally "vague" or "overbroad," and Count III challenged the dismissals on grounds of procedural due process. The appellants sought declaratory and mandatory injunctive relief -- that is to say, reinstatement with back pay, interest, and accrued seniority.*fn14
The district court, by two separate orders, ruled against the discharged employees on all three counts of the complaint. On May 15, 1973, the district court granted appellees' motion to dismiss Counts II and III of the complaint. On September 24, 1973, that court, after a hearing, entered an order granting judgment to appellees on Count I. Both are contested on this appeal.
We reverse the judgment of the district court, and adjudge the appellants entitled to relief based on their prior restraint argument. The justification proffered by PHA and Mr. Stein for the attempt, by way of their memorandum and the appellants' discharges, to throttle all discussion by PHA employees of the RAB referendum, is, stated broadly, that the PHA had a legitimate and compelling interest in preserving intact the image of PHA's impartiality. Important as this interest may have been, we conclude that it did not outbalance the weighty values sheltered by the First Amendment.
Freedom of speech and expression occupies an exalted niche in the empyrean of personal liberties guaranteed by the Constitution.*fn15 This special position may be a function of democratic theory. The right is viewed as one of "those liberties of the individual which history has attested as the indispensible conditions of an open as against a closed society . . . ."*fn16 To an extent, the favored status proceeds from the dynamics of free speech itself, inasmuch as it benefits and protects not only the speaker but, mutatis mutandis, the receptor of the speech as well.*fn17 Whatever the explanation for the ascendancy of the First Amendment protection, courts have remained particularly sensitive to governmental regulation that tends to impinge on expressive freedom.
This heightened sensitivity is manifest in, among other things, judicial distaste for the "prior restraint." Simply put, a prior restraint is an official restriction imposed upon speech or other forms of expression in advance of actual publication.*fn18 The concept does not treat the question of what subsequent punitive sanctions, if any, may properly be imposed for engaging in speech.*fn19
It is by now axiomatic that "any system or prior restraints of expression comes to [a court] bearing a heavy presumption against its constitutional validity."*fn20 A fuller understanding of the historical and theoretical underpinnings of this judicial attitude should help to clarify our decision in this case.
The use of a prior restraint as an implement of official control of expression can be traced back at least as far as a papal decree of 1501.*fn21 In England, where printing franchises were controlled by the Crown, there developed a complex system of governmental restraints on publication, typified by the Licensing Acts.*fn22 The Licensing Act of 1662 was enacted with the clear intention of imposing a prior restraint on, and not merely a post facto punishment for, "seditious, treasonable and unlicensed books and pamphlets [sic]. . . ."*fn23 No person was permitted to print any material without prior approval by the appropriate state functionary. The Act, as administered by the zealot licensor L'Estrange, "gagged the London Press then, as it has never been gagged before or since."*fn24
In the latter part of the Seventeenth Century public sentiment mounted against the Act and it lapsed, never to be revived.*fn25 When the First Amendment was drafted and adopted in 1791, the repugnance felt toward the old English system of censorship remained undimmed. Indeed, some have maintained that the Amendment was aimed primarily at prior restraints, and was not intended to proscribe subsequent punishments for various sorts of expression.*fn26 In any event, public antipathy toward prior restraints was transmitted to our law through the First Amendment. Judicial treatment of prior restraints has, at least in this century, reflected these historical developments.
The landmark decision of Near v. Minnesota*fn27 signals the Supreme Court's first extended disquisition on the doctrine of prior restraint. There the so-called Minnesota Gag Law was challenged on First Amendment grounds. The law provided for suits by the state to enjoin publication or circulation of any periodical found to be "obscene, lewd and lascivious" or "malicious, scandalous and defamatory." Chief Justice Hughes first discussed the doctrine's genealogy. Then, after adding the caveat that "the protection even as to previous restraint is not absolutely unlimited,"*fn28 the Chief Justice left little doubt that the First Amendment tolerates few, if any, prior restraints on speech and press:
"The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.
"The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint. . . ."*fn29
There thus was embedded in modern constitutional jurisprudence the concept that any system of prior restraints comes to a court bearing a heavy presumption against its validity.*fn30 The viability of this proposition remains unabated today.*fn31 Professor Emerson has cataloged the functional justifications for the disfavor in which prior restraints are held.*fn32 Particularly noteworthy is his observation that a system of prior restraint "subjects to government scrutiny and approval all expression in the area controlled -- the innocent and borderline as well as the offensive. . . ."*fn33 In addition, whereas subsequent punishment does not prevent the dissemination of the words in question, a prior restraint, by its very nature, seeks absolutely to exclude the speech from the "market place of ideas."*fn34 These considerations, together with others, provide firm ground for judicial insistence that, before it may be deemed justified, the government must offer compelling proof that a prior restraint is essential to a vital government interest. In light of this standard, we shall proceed to analyze the justification offered by the appellees, and the district court's evaluation of it.
The Stein memorandum was construed by the district court as prohibiting "all Philadelphia Housing Authority Employees from discussing Resident Advisory Board politics with tenants, either pro or con." Neither the PHA nor Mr. Stein dispute that, as so construed -- and in light of the discharge of the appellants for their refusal to sign -- the memorandum operated as an effective prior restraint, imposed by a governmental body, on the speech of the PHA employees.*fn35 Rather, Mr. Stein and PHA seek to justify the restraint by invocation of the "significant and vital interest" of the PHA in preserving the plebiscite free of "interference" by PHA employees, in "prevent[ing] violent confrontations," and in "protect[ing] the tenants' rights of . . . freedom of choice in representation with regard to the election."*fn36
The district court concluded that the Stein memorandum, and the mechanism for its implementation, was necessary to accomplish the PHA's stated goals, and that the resulting prior restraint was justifiable under the Supreme Court's recent "Hatch Act" decisions.*fn37 It stated:
"The Philadelphia Housing Authority, like all governmental agencies, has a continuing interest in maintaining the appearance, as well as the fact, of impartiality, and in preventing its employees from engaging in politicking rather than doing their jobs. In view of the Supreme Court's recent decisions in Broadrick . . . and Letter Carriers . . . this interest alone is sufficient to justify substantial restrictions on the employees' freedom of expression."*fn38
In our judgment, neither Broadrick nor Letter Carriers, the "Hatch Act" cases, nor any other case warrants the interdiction, embodied in the terms and enforcement mechanism of the Stein memorandum, against any and all discussion by PHA employees of the RAB plebiscite. Accordingly, we think that the "heavy burden" cast by the prior restraint cases upon PHA and Stein has not been met, and that the appellants' discharges violated their First Amendment and Fourteenth Amendment rights. Close analysis of the "Hatch Act" cases should serve to explain and illuminate this conclusion.
It is important to make clear at this juncture what we are not deciding. We are not deciding whether, under any set of circumstances, some sort of prior restraint on political activity by PHA employees might be justified, nor whether the "Hatch Act" cases can have any application in the context of a more-or-less ad hoc administrative measure, such as the Stein memorandum. Rather, the question before use is a less heroic one, namely, whether the prior restraint that absolutely forbade all "discussion" of the RAB plebiscite was justified by the PHA's interest in preventing political "interference" in the referendum. Letter Carriers and Broadrick, while less than pellucid in all of their implications,*fn39 make it clear that a restraint such as that in this case may not be countenanced by an analogy to the Hatch Act or to its state counterparts.
The Hatch Act prohibits federal employees from taking "an active part in political management or in political campaigns." In 1947, in United Public Workers v. Mitchell,*fn40 this provision was first upheld against First Amendment attack. The Supreme Court reasoned that Congress' conclusion "that an actively partisan governmental personnel threatens good administration"*fn41 justified the Act's restriction on political activity. The Court took care to note, however, that it was "only partisan political activity that is interdicted. . . . [Only] active participation in political management and political campaigns [is proscribed]. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted . . . ."*fn42
In Letter Carriers the validity of the "active part" provision was reaffirmed, and upheld in the face of "vagueness" and "overbreadth" challenges.*fn43 The Court stated as a foundation for its holding, based on extensive legislative findings, that "the judgment of history" was that "federal service should depend upon meritorious service, and that the political influence of federal employees on others and on the electoral process should be limited."*fn44 The interest of the government in protecting the civil service from undue political influence, manifested by a series of Congressional debates, was deemed to outweigh the employee's interest in the freedom to engage, unfettered, in partisan political activity.*fn45
In Broadrick, the Supreme Court sustained state legislation that, in its basic aim and method of implementation, mirrored the Hatch Act.*fn46 Though the challenged state act left state employees with some uncertainty concerning the sort of activities they might permissibly engage in,*fn47 the Court again rejected a First Amendment vagueness and overbreadth assault on the state statute. And once again, the Court was at pains to note emphatically that the proscription of the Act ran only to "partisan political activity."*fn48
The district court in this case perceived firm support in Broadrick and Letter Carriers for the constitutionality of the appellants' discharges. It stated, "just as the Hatch Act has been held to be constitutional, i.e., not violative of the First Amendment, so must this memorandum be held to be constitutional and non-violative of the First Amendment." We think, however, that Broadrick and Letter Carriers, properly viewed, carved out carefully circumscribed exceptions to the sweeping injunction of the First Amendment, exceptions allowing a legislature -- Congress or state lawmakers -- to inhibit only "partisan political activity" and not all political "discussion."
The vagueness attack mounted in Letter Carriers was predicated upon the assertion by the appellants there that, even were the basic goal of the Hatch Act to be deemed valid, the Act was "incapable of yielding any meaningful rules to govern present or future conduct."*fn49 The Supreme Court demurred to this contention, ruling that the Civil Service Commission Rules sufficiently "fleshed out" the statute.*fn50 Reference to those rules indicates that the Hatch Act is in no sense directed at the mere expression of political opinions, or at political discussion simpliciter. Indeed, Senator Hatch's explication of the rules makes clear that, under the Act, "employees may express their opinions on all subjects, but they may not make political speeches."*fn51 Moreover, as the Supreme Court emphasized, section 7324(b) of the Act "privileges an employee to . . . express his opinion on political subjects and candidates . . ."*fn52 Thus, in upholding the Act's constitutionality, the Supreme Court did no more than sustain a curb upon political activity by governmental employees. To read Letter Carriers, as the district court apparently did, to authorize governmental restriction upon all forms of political discussion or expression would be to inflate the Supreme Court's edict far beyond its actual scope.
This conclusion -- that neither Letter Carriers nor Broadrick signals approbation of the sort of blanket prohibition on employee speech embodied in the Stein memorandum -- is buttressed by the repeated mention, in those cases, of the sort of employee activity that might legitimately be curtailed. The Hatch Act, the Supreme Court noted, prohibits "active participation in political management of political campaigns;"*fn53 Congress felt it "essential that federal employees not . . . take formal positions in political parties, nor undertake to play substantial roles in partisan political campaigns;"*fn54 so, too, may a state forbid any employee to "solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization. . . ."*fn55
The excerpted instances set forth above make manifest that Letter Carriers and Broadrick herald only narrow, carefully drawn exceptions to the First Amendment's protections, not an authorization to restrain politically oriented speech and expressions by governmental employees. In addition, the statutes challenged in Letter Carriers and Broadrick represent a "considered legislative judgment," not the relatively spontaneous decision of a local government administrator.*fn56
Thus, we think there is scant support in Letter Carriers or Broadrick for the district court's conclusion that the appellants' discharges were constitutionally valid. There being little warrant in those cases for any sort of inhibition of, or punishment for, politically oriented speech, it can hardly be said that the "heavy burden" imposed on the appellees in their attempt to justify a prior restraint has been adequately shouldered.
We need not decide, of course, whether a more narrowly drawn memorandum might have passed First Amendment muster -- for example, a provision carefully limited so as to proscribe "partisan political activity" by PHA employees. Accordingly, our opinion in this case should not be interpreted as resting upon "overbreadth," "vagueness," or like doctrines,*fn57 Rather, our decision has been limited to the precise facts in question. An absolute prohibition on "discussion" of PHA-RAB politics has not, to us, seemed justified by the governmental interest asserted.*fn58
This is not to suggest that a prior restraint on the speech of governmental employees may never be justified by any considerations.*fn59 It may well be too, that had the appellants been discharged by PHA subsequent to having uttered words that "interferred" with the PHA-RAB plebiscite, or cast doubt on PHA's impartiality,*fn60 resolution of the ensuing controversy might have been somewhat different. But, on the record here, there was no permissible basis for restraining the appellants in advance from any and all "discussion" of PHA or RAB politics.*fn61
The "balancing" task imposed upon us in this case by the prior restraint doctrine is a somewhat sensitive one. We recognize, and sympathize with, the PHA's desire to preserve intact a public image of political impartiality. We acknowledge, too, that a governmental agency may have a significantly more weighty interest in regulating the speech of its employees than in regulating that of the populace at large.*fn62 There are, however, two factors in particular which have led us to hold in favor of the appellants. First, precious little in the case law supports the imposition of a restraint on all the speech of public employees, even concerning a particularized topic.*fn63 Second, we think that when a prior restraint is sought to be imposed, it should be as narrowly drawn as possible, consonant with the purpose in question. Thus, assuming arguendo the validity of PHA's desire to prevent only partisan political activity in connection with the RAB plebiscite, the failure of the Stein memorandum to reflect such specificity tends, in our judgment, to detract significantly from any attempt to shoulder the "heavy burden" imposed by First Amendment doctrine.
First Amendment theory has appeared, to some, to be in a "chaotic state."*fn64 Perhaps that is the fate of any constitutional guarantee that stands as a keystone of our political, social and economic freedom. Nonetheless, two aspects of the First Amendment stand out in fairly sharp relief. One, the distaste for prior restraint, is firmly rooted in Anglo-American history, public sentiment, and legality. The other, a straitened channel of permissible restriction on the political activities of government employees, works a delicate balance between personal freedom of expression and governmental necessity. Nothing in this case has persuaded us that the sweeping prohibition embodied in the Stein memorandum fell within the narrow compass of the "Hatch Act" cases. Still less are we convinced that the prior restraining effects of the discharges for failure to sign the memorandum were justified.
Accordingly, the judgment of the district court will be reversed and the case remanded for treatment consistent with this opinion. The district court should be accorded the primary opportunity, as well as responsibility, for framing an appropriate decree of relief.