decided: January 7, 1971.
Appeal from order of the Pennsylvania State Civil Service Commission, No. 907, June T., 1968, in re Appeal of Ocania Chalk.
Daniel H. Shertzer, for appellant.
Sidney V. Blecker, Assistant Attorney General, with him Edward Friedman, Counsel General, and William C. Sennett, Attorney General, for Pennsylvania State Civil Service Commission, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy concurs in the result. Mr. Justice Eagen dissents. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Bell.
[ 441 Pa. Page 378]
This is an appeal from a decision of the State Civil Service Commission, suspending appellant, who is a public assistance caseworker, for ten days without pay. The Commission, by a two-to-one vote, found that certain remarks made by appellant at a public meeting of a group called the "Public Assistance Committee" violated
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two sections of the Department of Public Assistance Bulletin 659. These sections provide that employees of the Department should "conduct themselves in a manner that will bring credit to the Commonwealth," and should "never . . . engage in any activity which would cause embarrassment or merit unfavorable publicity to the Department or the Commonwealth". The remarks made by appellant, the Commission found, "were critical of personnel and policies of the public assistance administration of the York County Board". The dissenting Commissioner noted that "appellant urged public assistance recipients to get on caseworkers' backs and demand their rights; he stated some caseworkers failed to accord recipients dignity and inform them of their rights of appeal and . . . he exhorted recipients, quoting Frederick Douglass, to 'agitate, agitate, agitate.'"*fn1
Following the Commission's decision, appellant prosecuted this appeal. He urges that his speech was constitutionally protected by virtue of the First and Fourteenth Amendments to the United States Constitution, and Article I, Section 7, of the Pennsylvania Constitution, and hence that his suspension was improper. We agree.*fn2
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There can be no doubt of "[t]he general proposition that freedom of expression upon public questions is secured by the First Amendment . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S. Ct. 710, 720 (1964). It has long been recognized that "[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means . . . is a fundamental principle of our constitutional system". Stromberg v. California, 283 U.S. 359, 369, 51 S. Ct. 532, 536 (1931). The importance of the First Amendment was perhaps most eloquently stated by Mr. Justice Brandeis: "Those who won our independence believed that . . . the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . [T]hey knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641, 648 (1927) (concurring opinion) (footnote omitted).
In the face of this authority the Commission places a famous statement of Mr. Justice Holmes: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."
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Applying this test to the instant case, we cannot say that the Commission has weighed the balance properly.
While the Commission found that "the remarks of appellant were detrimental to the public assistance administration in York County", the Commission has given us no indication of how this finding was arrived at. Nor does our independent review of the record*fn5 disclose any. The appointing authority, as the dissenting Commissioner noted, did not produce any evidence of the harmful effects of the speech, compare Pickering, 391 U.S. at 570, 88 S. Ct. at 1736. Indeed, as the Commission stated, six witnesses testified that appellant's remarks "were beneficial to those present". Nor has the appointing authority shown, for example, that appellant's remarks were defamatory, see Meehan v. Macy, 392 F. 2d 822 (D.C. Cir. 1968); cf. New York Times v. Sullivan, supra; or that his conduct in his job was
[ 441 Pa. Page 384]
so antagonistic as to amount to borderline insubordination, see Lefcourt v. Legal Aid Society, 312 F. Supp. 1105 (S.D.N.Y. 1970).
In sum, the York County Board has not shown that its interest in limiting appellant's opportunity "to contribute to public debate" is "significantly greater than its interest in limiting a similar contribution by any member of the general public". Pickering, 391 U.S. at 573, 88 S. Ct. at 1737. Appellant's remarks were a criticism of how a governmental institution was functioning. Indeed, as a member of that institution, he had a unique, and valuable, perspective from which to view it. Whether his statements were true, or false, need not concern us, for this is a question which could not meaningfully be answered by either the York County Board, or the Civil Service Commission.*fn6 Appellant was addressing himself to matters of public policy, where "the best test of truth is the power of the thought to get itself accepted in the competition of the market". Abrams v. United States, 250 U.S. 616, 630, 40 S. Ct. 17, 22 (1919) (Holmes, J., dissenting). His statements may have been upsetting,*fn7 but the Commission could
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not, without more, suspend him from his job for uttering them.
The order of the Civil Service Commission is reversed.
Dissenting Opinion by Mr. Chief Justice Bell:
I vigorously dissent. The Majority stretch the Constitutional right of "freedom of speech" to a point where a Governmental employee, by his public attacks, may hold his Department up to such public ridicule and contempt as to jeopardize its efficient administration, and indeed its very existence. Both our Court and the Supreme Court of the United States have often said that "freedom of speech" is not absolute or unlimited. Gitlow v. New York, 268 U.S. 652; Brandenburg v. Ohio, 395 U.S. 444; Andress v. Zoning Board of Adjust, 410 Pa. 77, 188 A.2d 709; Taylor and Selby Appeals, 412 Pa. 32, 193 A.2d 181, and a dozen cases cited therein.
[ 441 Pa. Page 386]
The public exhortations of this Public Assistance Department employee urging public assistance recipients "to get on caseworkers' backs and demand their rights", and further exhorting them to "agitate, agitate, agitate", passes far beyond the protection of the First Amendment. If the Majority's "near-absolute freedom-of-speech approach" be carried to its logical conclusion, it could conceivably create such lack of public confidence in one or more Departments and such bitter resentments and divisions as to not only (I repeat) greatly impair the efficiency and existence of that Department (or Departments), but also could jeopardize the effective operation and functioning of our entire Government. An employee of the Commonwealth, working in a sensitive area of the business of his Governmental Department, is -- and quite properly should be -- subject to much greater restriction, in regard to (legislatively unsolicited) criticism of the Department which he purports to be serving, than a person who has no connection therewith. Cf. Pickering v. Board of Education, 391 U.S. 563. Indeed, even an ordinary business employee owes a certain amount of loyalty to his employer, and if the employee publicly attacks, ridicules or undermines his employer or his policies, he should be, and usually is, subject to dismissal or appropriate punishment.