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CHALK APPEAL (01/07/71)

decided: January 7, 1971.

CHALK APPEAL


Appeal from order of the Pennsylvania State Civil Service Commission, No. 907, June T., 1968, in re Appeal of Ocania Chalk.

COUNSEL

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.

Author: Roberts

[ 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

[ 441 Pa. Page 379]

    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

[ 441 Pa. Page 380]

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 ...


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