Adamian v. Jacobsen

• Citation: 523 F.2d 929
• Decision Date: 24 September 1975
• Docket Number: No. 73-2921,73-2921
• Parties: Paul S. ADAMIAN, Plaintiff-Appellee, v. Harold J. JACOBSEN et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 929

523 F.2d 929

Paul S. ADAMIAN, Plaintiff-Appellee, v. Harold J. JACOBSEN et al., Defendants-Appellants.

No. 73-2921.

United States Court of Appeals Ninth Circuit.

Sept. 24, 1975.

Jeffrey G. Greene (argued), Deputy Atty. Gen., Las Vegas, Nev., for defendants-appellants.

Charles E. Springer (argued), Reno, Nev., for plaintiff-appellee.

OPINION

Before MERRILL, CARTER and CHOY, Circuit Judges.

CHOY, Circuit Judge:

Paul S. Adamian, a tenured Assistant Professor of English at the University of Nevada at Reno, participated in a demonstration during Governor's Day ceremonies in the campus stadium in 1970, protesting the Cambodia invasion and the Kent State University killings. On prior application of the demonstrators, the Board of Regents (the Board) had given them permission to march three times around the stadium track. The protest went beyond the march, however. Adamian (yelling, "Let's stop this mother - - - .") and others tried to stop a motorcade bringing officials for the ceremonies into the stadium; led by Adamian the demonstrators then made loud noises to disrupt the ceremonies. Still later, Adamian left the stands, joined a group on the field and motioned other demonstrators onto the field, thus creating a danger of violent confrontation between two bodies of people.

The Board directed that charges be brought against Adamian. He was summoned before a Faculty Senate hearing committee which found that his conduct had violated chapter 4, section 2.3, of the University Code, and thus constituted "adequate cause" under the Code for his dismissal. Although the committee recommended that his employment not be terminated unless he indulged in similar conduct in the future, the Board rejected the recommendation and ordered Adamian's dismissal.

Adamian brought this civil rights action in district court, claiming that the University had deprived him of his first amendment rights of speech and assembly. On July 20, 1973, the district court held that section 2.3 was invalid because vague and overbroad. The court entered partial summary judgment for Adamian, and ordered the present members of the Board of Regents in their representative capacities to reinstate Adamian. It also ordered back pay for Adamian in an amount to be later determined. On August 30, 1973, the court certified its order of reinstatement as a final judgment, pursuant to Fed.R.Civ.P. 54(b). The members of the Board appeal from that order. We reverse and remand.

Jurisdiction on Appeal

The July 20 order granting an injunction was an appealable interlocutory order. 28 U.S.C. § 1292(a)(1). Because the regents did not file an appeal from this order within 30 days as required by 28 U.S.C. § 2107, Adamian argues that the regents' appeal is untimely. But an interlocutory appeal is permissive, not mandatory, and the regents were free to await the August 30 final judgment and to appeal under 28 U.S.C. § 1291. Caradelis v. Refineria Panama, S.A., 384 F.2d 589, 591 n.1 (5th Cir. 1967); Bingham Pump Co. v. Edwards, 118 F.2d 338, 339 (9th Cir.), Cert. denied,314 U.S. 656, 62 S.Ct. 107, 86 L.Ed. 525 (1941).

University Code, Section 2.3

The University Code of the University of Nevada requires that tenured professors be dismissed only for adequate cause, and the Board of Regents concluded that "adequate cause existing, (Adamian's) employment as a member of the Faculty of the University of Nevada Reno is terminated this date." The term "adequate cause" must be interpreted in the context of traditional standards of faculty behavior; its vagueness is a necessary result of the many forms of faculty conduct which might justify dismissal. The Supreme Court's discussion of "cause" for dismissal from the civil service applies equally to academic tenure:

We do not believe that Congress (here, the state) was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all.

Arnett v. Kennedy, 416 U.S. 134, 159, 94 S.Ct. 1633, 1647, 40 L.Ed.2d 15 (1974).

Nevertheless, when a statute or regulation by its vagueness or overbreadth threatens to deter the exercise of first amendment freedoms, we require of it greater precision and specificity than would be necessary to fulfill fifth or fourteenth amendment due process requirements. "Adequate cause" is certainly too imprecise a standard if expressive activity is understood to fall within its scope. If we were faced with a federal statute or regulation, we would cure this imprecision by construing it to exclude any application to constitutionally protected speech or conduct. Arnett, 416 U.S. at 162, 94 S.Ct. 1633; United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 571, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). We cannot so construe a state regulation, however; we are required to base our judgment of its facial validity only on its meaning as authoritatively construed by a state court or agency. Gooding v. Wilson,405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).

The University Code, chapter 4, section 2.3, clarifies the meaning to be given "adequate cause" when that term is applied to a professor's expressive activity:

The faculty member is a citizen, a member of a learned profession, and a representative of the University. When he speaks or writes as a citizen, he will be free from university censorship or discipline, but his special position in the community imposes special obligations. As a man of learning and as an educator, he knows that the public may judge his profession and this University by his utterances. At all times he strives to be accurate, to exercise appropriate restraint, to show respect for the opinion of others, and to make every effort to indicate that he is not a spokesman for this University.

Section 2.3, read in isolation, seems only to insure that a professor will be free of censorship when speaking as a citizen; the admonitions of the last sentence appear merely hortatory. The Board of Regents has construed the last sentence as stating adequate causes for dismissal, however, and we must give great deference to this construction of a regulation by the state agency which issued and enforces it. See Jablon v. Trustees of the California State Colleges, 482 F.2d 997, 999 (9th Cir. 1973), Cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974). The regents explicitly charged Professor Adamian with having violated this section, and we accept it as defining the university's construction of "adequate cause" for dismissal of a professor based on his non-academic speech or writing. ¹

Vagueness and Overbreadth

The closely related first amendment doctrines of vagueness and overbreadth permit a defendant to assert the invalidity of a statute because of its potential encroachment on first amendment freedoms, even in cases where the defendant's conduct itself is unprotected by the first amendment. We apply these doctrines quite rigorously when a statute is directed at "pure speech," especially to its expressive content. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). ² On the other hand, if the state has attempted to regulate conduct for reasons unrelated to any expressive content, and the regulation has an incidental inhibiting effect on expression, in determining its facial validity we must weight the legitimate interest of the state in regulating the conduct against the potential deterrence, or "chill," of the exercise of first amendment freedoms. Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Parker v. Levy, 417 U.S. 733, 760, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). ³ The balancing required of us in deciding whether to apply the vagueness and overbreadth doctrines resembles that required in determining whether a statute regulating conduct constitutes an impermissible abridgement of first amendment interests. See, e. g., Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968).

Section 2.3 requires that a professor strive for accuracy, restraint, and respect for the opinions of others. On its face, section 2.3 is directed at "pure speech," not at expressive conduct. The state cannot regulate any protected speech on the basis of content. Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Even in the case of "pure speech," however, the deference which must be accorded first amendment interests attenuates when the state attempts to regulate not the expressive content of the speech, but its external effects, such as noise. Grayned, supra; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 413 (1949); Contrast Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948).

Section 2.3 is neutral as to content; it regulates the manner in which that content is expressed, much as do statutes aimed at excessive noise. Therefore, in examining its facial validity, we find it appropriate to apply the more rigorous Broadrick test, I.e., whether any overbreadth perceived is " not only . . . real, but substantial as well, judged in relation to the statute'splainly legitimate sweep." Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

First amendment protections are not "shed . . . at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is true that we will strike the balance between the interests of the state and of the individual somewhat differently when the citizen is an employee of the state. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)...