argued as amended november 21 1977.: September 6, 1977.
Appeal from the United States District Court for the District of New Jersey.
Aldisert, Rosenn and Garth, Circuit Judges. Rosenn, Circuit Judge, concurring in part and dissenting in part.
On this appeal*fn1 (and cross-appeal*fn2 ), we are presented with a challenge to five different regulations of the Newark, New Jersey, Police Department. The district court determined that two of the regulations*fn3 were unconstitutional, and enjoined their enforcement. The remaining three regulations*fn4 were held to be constitutional.*fn5 Plaintiffs had attacked the regulations as facially overbroad and vague, and as violative of their first amendment rights (made applicable to the states by the fourteenth amendment), as applied to them. Because we do not entirely agree with the district court's disposition, we affirm in part and reverse in part.
This dispute arose out of a low income housing (Kawaida Towers) controversy*fn6 in Newark. The Tactical Force of the Patrol Division of the Newark Police Department, commanded by Inspector Thomas Critchley, was assigned to keep order at the building site. After the Kawaida dispute had largely run its course, Deputy Chief Thomas Henry, head of the Patrol Division, transferred six members of the Tactical Force to a less prestigious unit.
Plaintiff Ronald Gasparinetti is a police officer with the Newark Police Department. At the time of the incident described above, he was President of the Policemen's Benevolent Association (PBA),*fn7 the collective bargaining agent for the rank and file police officers. After Deputy Chief Henry transferred the six officers, Gasparinetti made several statements in the local press (Appendix at 1A, 3A), in the PBA Newsletter (Appendix at 3A), and in a PBA Union Notice (Appendix at 2A). It is these statements on which this case centers.
Gasparinetti*fn8 charged that the six officers had been transferred because of pressure on Inspector Critchley by one Leroi Jones (Imamu Amiri Baraka), a black activist leader of the pro-Kawaida forces. Gasparinetti criticized Critchley for succumbing to political pressure and threats, and for operating outside the Department rules and regulations. He stated that Critchley and Henry were out to "break the morale and spirit of the men," and had practiced "deceit and lies" in order to circumvent the collective bargaining agreement. He further asserted that there were "cowards in the superior officers ranks," and that the men hesitated to face criminals when led by leaders like Critchley.
Subsequent to these statements, Inspector George Graf ordered Gasparinetti to make an "Administrative Submission" and an "Administrative Report," in which he was to answer seven questions regarding the "Critchley incident." In response, Gasparinetti sent Graf two letters in which he claimed that he understood the "order" to be merely a request for cooperation, and that in any event his actions were taken in his capacity as union leader, and therefore not subject to investigation by the Department. Approximately five months later, on September 13, 1973, Gasparinetti was formally charged with violations of departmental regulations ch. 3:1.2-5 (Derogatory Reference),*fn9 ch. 3:1.2-8 (Censuring Official Transactions),*fn10 ch. 6:7 (Public Disparagement),*fn11 ch. 5:4.1 (Obedience to Orders),*fn12 and ch. 6:8 (Acts of Insubordination).*fn13
Gasparinetti then filed a complaint, subsequently amended to include the PBA as a plaintiff, against the Newark Police Director, asserting claims under 42 U.S.C. §§ 1983 and 1985, and sought damages and declaratory and injunctive relief. Subsequently he moved for a preliminary injunction. The district court entered its order and opinion on March 2, 1976. The court enjoined the enforcement of chs. 3:1.2-5 and 3:1.2-8, but refused to enjoin the enforcement of chs. 5:4.1, 6:7, and 6:8. (See note 5 supra.) It stayed pending appeal the enforcement of the latter three sections. This appeal and cross-appeal followed.
CHAPTERS 3:1.2-5 AND 3:1.2-8
The district court held that the regulations ch. 3:1.2-5 (Derogatory Reference) and ch. 3:1.2-8 (Censuring Official Transactions) were facially overbroad, resulted in a chilling of first amendment rights, and therefore were invalid under the fourteenth amendment. These regulations provide:
Chapter 3:1.2-5 DEROGATORY REFERENCE -
Police Officers and civilian employees shall not by manner, gesture, or speech criticize or make derogatory reference to Department orders or instructions either to the public or to the members of the Department.
Chapter 3:1.2-8 CENSURING OFFICIAL TRANSACTION -
Unless in accord with official duties, police officers and civilian employees shall not, either in writing or discussion, censure other Department members concerning official transactions within the Department.
For substantially the same reasons as are expressed in the district court's opinion (Appendix at 38A), we agree with the district court that these two regulations are unconstitutional, and their enforcement must be permanently enjoined.
The district court also held that regulation ch. 6:7 (Public Disparagement) was not unconstitutionally overbroad and vague.*fn14 That section reads:
Chapter 6:7 PUBLIC DISPARAGEMENT -
Department members shall not publicly disparage or comment unfavorably or disrespectfully on the official action of a superior officer, nor on the Rules, Regulations, Procedures or Orders of the Police Department.
The district court was of the opinion that ch. 6:7 did not sweep "too broadly in effectuating the legitimate scope of governmental activity," viz. the maintenance of public confidence in the police department, since the regulations were directed only at a policeman's public speech. See District Court Opinion at 15, Appendix at 54A. We disagree.
"A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972). "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, 371 U.S. 415, 432-33, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Since there is a great danger that the exercise of first amendment rights will be chilled by penalties on speech, see Keyishian v. Board of Regents, 385 U.S. 589, 603, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967), the regulation must be in "terms susceptible of objective measurement," Cramp v. Board of Public Instruction, 368 U.S. 278, 286, 7 L. Ed. 2d 285, 82 S. Ct. 275 (1961). When faced with an overbreadth challenge a court must decide, first, if there is a legitimate and substantial state interest in regulating a class of speech, and, if so, whether that interest is being "pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488, 5 L. Ed. 2d 231, 81 S. Ct. 247 (1960). See Grayned v. City of Rockford, supra at 119; see also Keyeshian v. Board of Regents, supra at 601. The enactment regulating speech, therefore, may not be an impermissibly broad prophylactic; nor can it unnecessarily interfere with first amendment rights. See Grayned v. City of Rockford, supra at 119. The crucial question, then, is whether the regulation sweeps within its prohibitions that which is protected under the first and fourteenth amendments. See id. at 115.
The regulation at issue in this case is directed at comments by police officers. In Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), the Supreme Court recognized that the State has a greater interest in regulating the speech of public employees than in regulating the speech of citizens in general.*fn15 Id. at 568. In certain situations, a public employee may be discharged on the basis of speech, "without offending [the] guarantees of the First Amendment." Arnett v. Kennedy, 416 U.S. 134, 160, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974). See Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976). The area of unregulable speech available to public employees is accordingly narrower than that available to the public at large. In our determination of the overbreadth vel non of ch. 6:7, therefore, we must consider that the first amendment protections afforded to police officers, at least as those protections apply to regulations directed to speech made in their capacity as police officers (not to mention their capacity as PBA officials), are somewhat more circumscribed than those afforded to members of the public.*fn16 It is necessary that the regulation be narrowly tailored to effectuate the Department's legitimate interests, while not unduly encroaching upon the first amendment rights of those it regulates.
In this case we can recognize a significant government interest in regulating some speech of police officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution. To achieve these ends, regulations may be promulgated, but their restrictive effect may extend only as far as is necessary to accomplish a legitimate governmental interest. As the Supreme Court said in a related context, "policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights." Garrity v. New Jersey, 385 U.S. 493, 500, 17 L. Ed. 2d 562, 87 S. Ct. 616 (1967).*fn16a
The disputed "Public Disparagement" (ch. 6:7) regulation provides that a Department member shall not "publicly disparage or comment unfavorably or disrespectfully" on the official actions of superior officers or on the orders of the Department. It is the regulation's prohibition against unfavorable comment which we find to be the most troublesome, as it appears to sweep within its ambit, speech which is clearly protected under the first amendment.
For example, does criticism of the Department's work rules, voiced by a police officer at a public PBA meeting, constitute "unfavorable comment" which could lead to the imposition of sanctions? Has a policeman "comment[ed] unfavorably" when he, in a public setting, claims that a new departmental policy, which requires that patrol cars be manned by but one officer, is not in the public interest? Or is a member of the Department, who is also a PBA representative engaged in contract negotiations with the City, guilty of "unfavorable comment" within the meaning of ch. 6:7 if he charges that the Police Director is not negotiating in good faith? It seems to us that in all these situations ch. 6:7 would be violated, and that consequently any publicly voiced ...