Alderman v. Philadelphia Housing Authority

• Citation: 496 F.2d 164
• Decision Date: 16 April 1974
• Docket Number: No. 73-1924.,73-1924.
• Parties: Brenda ALDERMAN et al., Appellants, v. The PHILADELPHIA HOUSING AUTHORITY et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

496 F.2d 164 (1974)

Brenda ALDERMAN et al., Appellants, v. The PHILADELPHIA HOUSING AUTHORITY et al., Appellees.

No. 73-1924.

United States Court of Appeals, Third Circuit.

Argued February 14, 1974.

Decided April 16, 1974.

Robert J. Reinstein, Philadelphia, Pa., for appellant Deming.

Harold I. Goodman, Bruce E. Endy, Community Legal Services, Inc., Philadelphia, Pa., for appellants Alderman, Smith and Williams.

Harold Cramer, Philadelphia, Pa., for appellees.

Before VAN DUSEN and 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.

I

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 statute¹ 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.² 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.

/s/ Gilbert Stein

. . . . . .

I have read the above and understand that as an employee of the Philadelphia Housing Authority, I must abide by this restriction.

__________________³ Employee's Signature

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.⁴ 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.⁵ 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."⁶

All but 65 of the PHA's employees agreed to, and did, sign the Stein memorandum.⁷ 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 . . . ."⁸ 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 retain the right 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.⁹

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.¹⁰ 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.¹¹

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.¹² 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.¹³ 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.¹⁴

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 actions 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.

II

Freedom of speech and expression occupies an exalted niche in the empyrean of personal liberties guaranteed by the Constitution.¹⁵ 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 indispensable conditions of an open as against a closed society . . . ."¹⁶ 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.¹⁷ 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.¹⁸ The concept does not treat the question of what subsequent punitive sanctions, if any, may properly be imposed for engaging in speech.¹⁹

It is by now axiomatic that "any system of prior restraints of expression comes to a court bearing a heavy presumption against its constitutional validity."²⁰ A fuller understanding of the historical and theoretical underpinnings of this judicial attitude should help to clarify our decision in this case.

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