the Resident Advisory Board's contention that the Philadelphia Housing Authority would use its position with the tenants to influence them to vote against the Resident Advisory Board.
Finally, it should be noted that the restrictions under the Hatch Act were upheld although they applied to millions of federal and state employees, and to any and all partisan causes and candidates, and for an indefinite length of time. The restriction which the plaintiffs herein attack applies only to one controversy, to one election campaign, to the employees of only one government agency, and to last only a matter of months.
This Court must conclude that if the restrictions imposed by the Hatch Act are constitutional, the much narrower restrictions imposed by "the memorandum" are also constitutional and lawful on their face.
The Hatch Act is a clear prior restraint on free speech in that it affects an employee's freedom of expression starting at the moment they enter government service, well in advance of any actual speech or misconduct. The Hatch Act, according to Professor Emerson, "operates as a broad prior control, cutting off beforehand political conduct of almost every description except voting, without regard to the specific impact in any particular case." Emerson, The System of Freedom of Expression, 583 (1970) (Emphasis Supplied). Therefore, just as the Hatch Act has been held to be constitutional, i.e. not violative of the First Amendment right of freedom of speech, so must this memorandum be held to be constitutional and non violative of the First Amendment.
Although the plaintiffs admit that the Philadelphia Housing Authority has the right to proscribe the conduct to which the memorandum was aimed, they assert that "[there] can be no prior restraint on the individuals right to speak. . . [There] has, to date, been no decision of any Court which has ultimately affirmed a prior restraint on free speech." (Plaintiffs' memorandum of law in support of their motion for summary judgment, p. 3).
This is not the case. "It has never been held that liberty of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid." Times Film Corporation v. Chicago, 365 U.S. 43, 47, 81 S. Ct. 391, 393, 5 L. Ed. 2d 403 (1961). "The phrase 'prior restraint ' is not a self-wielding sword. Nor can it serve as a talismanic test." Kingsley Books v. Brown, 354 U.S. 436, 441, 77 S. Ct. 1325, 1328, 1 L. Ed. 2d 1469 (1957).
There are many leading decisions of the United States Supreme Court which have upheld prior restraints on freedom of speech. See for example Times Film Corporation v. Chicago, supra, where the Supreme Court upheld a system of censorship of motion pictures; Kingsley Books v. Brown, supra, where the Supreme Court upheld a system of injunctions against the sale and distribution of allegedly obscene books; Giboney v. Empire Storage and Ice Company, 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949) and Hughes v. Superior Court, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1949) where the Court upheld injunctions against peaceful picketing; Ferris v. Frohman, 223 U.S. 424, 32 S. Ct. 263, 56 L. Ed. 492 (1912), where the Court upheld an injunction against the performance of a play which violated the common law of copyright; and International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211 (1918) where the Supreme Court upheld an injunction against the distribution of pirated news releases, even though this pirating was not prohibited by the copyright laws. The Supreme Court has also upheld injunctions against speech in Gompers v. Bucks Stove & Range Company, 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797 (1911) and in E. I. DuPont d' Nemours Powder Company v. Masland, 244 U.S. 100, 37 S. Ct. 575, 61 L. Ed. 1016 (1917), and an injunction against the distribution of confidential price quotations in Board of Trade v. Christie Grain & Stock Company, 198 U.S. 236, 25 S. Ct. 637, 49 L. Ed. 1031 (1905).
The prior restraint cases cited by the plaintiffs deal with the narrow problem of governmental restrictions on the means of mass communication. For example, the plaintiffs rely heavily on New York Times, Inc. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971). That case did not condemn all prior restraints, nor even all governmental injunctions against newspapers. The Supreme Court in a short per curiam opinion simply concluded that the government had not demonstrated that it was entitled to an injunction in that particular case. In their separate opinions, only two of the nine Justices, i.e. Justice Black and Justice Douglas, even took the position that injunctions against newspapers, let alone all prior restraints, were prohibited. Justices Stewart, White, and Marshall denied the injunction on the facts of that case and relied heavily on the deliberate refusal of Congress to authorize injunctions against the publication of classified information. 403 U.S. at 730, 91 S. Ct. at 2149 (Stewart, J. concurring), id. at 731-732, 91 S. Ct. at 2150-2151 (White, J. concurring), id. at 741-743, 91 S. Ct. at 2155-2156 (Marshall, J. concurring). Three of the Justices, of course, would have allowed the injunction even in the New York Times case. Not one of the Justices stated that all prior restraints on any form of expression were invalid.
The doctrine of freedom from prior restraint, in its original formulation by Blackstone, applied only to the press. The doctrine was in a sense a call to freedom of the press in the wake of a statutory printers' monopoly in sixteenth century England which required that any work be licensed before it could be printed. Emerson, "The Doctrine of Prior Restraint," 20 Law and Contemporary Problems, 648 (1955) at 650-51.
"Apart from occasional routine statements of principle the Court did not invoke the doctrine until, in 1931, it decided the case of Near v. Minnesota," 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 Emerson, "The Doctrine of Prior Restraint", at 652. This leading case on the doctrine of prior restraint relied on the role of the press in exposing the malfeasance of public officials. 283 U.S. at 718-719, 51 S. Ct. 625.
In the New York Times case, supra, the Supreme Court was careful to note that it was dealing with the unique role of the press. Thus Justice Black stated: "In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined." 403 U.S. at 715, 91 S. Ct. at 2142. (Emphasis supplied). Justice Douglas stated: The First Amendment "leaves, in my view, no room for governmental restraint on the press." 403 U.S. at 720, 91 S. Ct. at 2144. (Emphasis supplied). Justice Brennan stated: "But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result." 403 U.S. at 725-726, 91 S. Ct. at 2147. (Emphasis supplied). Justice Stewart stated: "For without an informed and free press there cannot be an enlightened people." 403 U.S. at 728, 91 S. Ct. at 2148. (Emphasis supplied). Justice White stated: "I concur in today's judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system ". 403 U.S. at 730-731, 91 S. Ct. at 2150. (Emphasis supplied). Justice Marshall believed that the ultimate issue was "whether this Court or the Congress has the power to make law," and discussed that problem rather than the First Amendment. 403 U.S. at 741, 91 S. Ct. at 2155. The three dissenting Justices, of course, would have allowed an injunction even where the press is concerned.
The four other cases relied upon by the plaintiffs likewise deal with mass communications: Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971), (public distribution of leaflets); Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968), (an ex parte injunction against a public rally); Bantam Books v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963), (censorship of books); and Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931), (a newspaper). None of these cases involve public employees whose right to freedom of expression, the Supreme Court has repeatedly held, may be restricted to a greater extent than that of independent citizens.
Lest any impression remain that New York Times, supra, outlawed all prior restraints even on mass communications, the United States Supreme Court on June 21st of this year in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), upheld an ex parte injunction against an obscene film. In this decision, the Court greatly expanded the definition of obscenity and the amount of material constitutionally subject to prior restraint.
Therefore, the plaintiffs' position that all prior restraints are unconstitutional is untenable.
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, supra, and Letter Carriers, supra, this interest alone is sufficient to justify substantial restrictions on the employees' freedom of expression.
In the case at bar, there are even more compelling reasons for maintaining the appearance, as well as the fact of "non-interference" than in the Hatch Act cases. Here, as Gilbert Stein testified, the tenants were long under the impression that the Philadelphia Housing Authority and the Resident Advisory Board had been conspiring to defraud and take advantage of them (N.T. pp. 124-126). If that impression were to be rectified, and confidence restored in the Philadelphia Housing Authority, and in a tenant's right to choose freely whom he wanted to represent him, it was imperative that the election appear, as well as in fact be, free of influence by the Philadelphia Housing Authority and by Philadelphia Housing Authority employees.
Moreover, Stein issued the memorandum not only because he was convinced that the interest of the Philadelphia Housing Authority required that its employees not interfere with the election, but also because he was convinced that compliance with the memorandum was necessary to protect the Philadelphia Housing Authority's tenants' rights of freedom of speech and due process. Many tenants of the Philadelphia Housing Authority are dependent upon the Philadelphia Housing Authority for their social welfare services. These services are administered by Philadelphia Housing Authority employees. To have permitted those employees to campaign, either for or against the Resident Advisory Board, might have caused the tenant to believe that if he did not vote the way his social worker directed him to vote, his welfare services would be terminated, thereby creating an impermissible "chilling effect" upon the tenant's constitutional rights. (N.T. pp. 131-132).
For similar reasons, Congress has imposed, and the Supreme Court has repeatedly upheld, broad restraints on the rights of employers to politic in union representation elections under the National Labor Relations Act. Employers and their agents are even prohibited from making some statements which are, on their face, merely disinterested expressions of opinion: 29 U.S.C.A. § 158(b) (1). See NLRB v. Gissel Packing Co., 395 U.S. 575, 617-618, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969).
Furthermore, it had been the Resident Advisory Board's contention that the Philadelphia Housing Authority would attempt to interfere with the election. As a result, the Philadelphia Housing Authority and the Resident Advisory Board entered into a stipulation, approved by Judge Weiner, that the Philadelphia Housing Authority would not interfere with the election (N.T. pp. 134-137). The Philadelphia Housing Authority could only adhere to its commitment to the Court and to the Resident Advisory Board if its employees agreed not to interfere with the election.
In "the RAB case" Judge Weiner entered an injunction preventing the Philadelphia Housing Authority or its employees from expressing any opinion to the tenants or others regarding the election involving the Resident Advisory Board. This injunction is of great significance to the instant case. It not only establishes that a Judge of this Court believed there may be a valid restraint on speech, and indeed Judge Weiner's Order is a restraint on speech, but also, that Order establishes that the Philadelphia Housing Authority had a significant, compelling, and valid governmental interest in preventing its employees from interfering with the election or discussing Resident Advisory Board politics, pro or con. In this connection, it should be noted and emphasized that this Court has held that the memorandum to the Philadelphia Housing Authority employees was neither vague nor overbroad.
On page 3 of their Reply Brief, the plaintiffs concede that "a prior restraint is not necessarily unconstitutional under all circumstances." (Emphasis in the original). With this basic and fundamental proposition established, the question becomes whether a significant and compelling governmental interest is sufficient to impose and justify a restraint on speech.
The plaintiffs argue that no matter what the reason, even if it is to prevent certain violence, intimidation, or severe encroachment on the constitutional rights of others, there can be no prior restraint on speech except when the nation is at war. In support of this extreme view, they cite Times Film Corp. v. Chicago, 365 U.S. 43, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961) and Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).
In Times Film, the Supreme Court held that prior restraints are constitutionally permissible and that the dissemination of a movie could be restrained prior to even its first showing. See 365 U.S. at 46, 81 S. Ct. 391. The Court held that the plaintiff movie exhibitor could not unleash a general and broadside attack on a system of prior restraints by withholding his film from inspection by state administrative agencies (365 U.S. at 50, 81 S. Ct. 391), but rather he had to submit the film to state inspection, and then bring suit only if his film was wrongly rejected.
The plaintiffs herein have testified that they did not refuse to sign the memorandum in question because they intended to interfere in the Resident Advisory Board election, but rather because they did not know what behavior it proscribed. This Court held that the memorandum was not vague or overbroad. The plaintiffs, therefore, knew, or should have known, what restraints it imposed on their behavior.
If plaintiffs' testimony is true, and they did not intend to interfere with the election, their only purpose in not signing the memorandum must have been to make a "broadside attack" on the constitutionality of the restraint. Such an attack was held to be impermissible under Times Film.
In Freedman v. Maryland, the Supreme Court was careful not to disturb its holding in Times Film Corp. See 380 U.S. at 53-54, 85 S. Ct. 734. The Court in Freedman held that even a broad statewide system of censorship of mass communication should not be automatically struck down without careful inquiry into its purpose and specific operations.
Although the plaintiffs admit that a prior restraint may be valid, they assert that the cases cited by the defendants do not deal with prior restraints on speech. The plaintiffs cite as examples Kingsley Books v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957); Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 69 S. Ct. 684, 93 L. Ed. 834 (1949); and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).
In Kingsley Books the Supreme Court specifically used the term "prior restraint" and stated:
The judicial angle of vision in testing the validity of a statute like [the New York obscenity statute] is "the operation and effect of the statute in substance." [ Near v. Minnesota, 283 U.S. 697, 713, 51 S. Ct. 625, 630, 75 L. Ed. 1357.] The phrase "prior restraint" is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: "What is needed," writes Professor Paul A. Freund, "is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis." The Supreme Court and Civil Liberties, 4 Vand. L. Rev. 533, 539 [ 354 U.S. at 441-442, 77 S. Ct. at 1328].
In Giboney the Supreme Court upheld an injunction preventing the dissemination of truthful information by means of peaceful picketing. See 336 U.S. at 497-498, 69 S. Ct. 684. In Hughes v. Superior Court, 339 U.S. 460, 70 S. Ct. 718, 94 L. Ed. 985 (1949) the Court upheld an injunction against peaceful picketing which did not violate any specific statute, though it violated public policy. Intimidation of voters by government employees, similar to speech inducing or promoting a restraint on trade, has never been considered constitutionally protected speech and has always been contrary to public policy. Recently, the Supreme Court has indicated that a wide range of political conduct by government employees, on or off duty, is not "protected speech," but is "manifestly subject to state regulation." Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830, 842 (1973) Accord, United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973).
The Giboney holding was not limited to picketing, but to any course of conduct which has both speech and nonspeech components. 336 U.S. at 502. The trial court in Giboney did not simply enjoin the carrying of specific signs or the mouthing of specific epithets which were placed before the Court, but banned picketing entirely. 336 U.S. at 494, 69 S. Ct. 684.
In Paris Adult Theatre I, the trial court first imposed an ex parte injunction against taking the allegedly obscene film out of the jurisdiction (413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446) thus restraining the distributors' freedom to disseminate it before any adversary hearing. In that case, as well as its companion case, Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court greatly broadened and expanded the category of obscenity and opened a wider range of speech and expression to state sanction. The Court in Paris Adult Theatre I reaffirmed its earlier line of cases in holding that this sanction can be applied by means of prior restraint as well as by subsequent sanction, 413 U.S. 49, 93 S. Ct. 2628, 2634, 37 L. Ed. 2d 446, 455-456.
The plaintiffs have made no response to the defendants' argument that the doctrine of prior restraint was developed and applied to prevent governmental interference with the means of public mass communication, a consideration not present in the instant case.
Nor do the plaintiffs deal with or mention the crucial issues raised in the defendants' citation of the Letter Carriers' case, 413 U.S. 548, 93 S. Ct. 2880, 2890, 37 L. Ed. 2d 796, 808:
The government has an interest in regulating the conduct and "the speech of its employees that [differs] significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interest of the [employee], as citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees." [ Pickering v. Board of Education, 391 U.S. 563, 568, 88 S. Ct. 1731, 1734, 20 L. Ed. 2d 811 (1968).] Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.