facts and issues are clear and a potential chilling effect exists.
On their face, the provisions here in issue appear to be in violation of the First Amendment. To the ordinary citizen, the word "assert" evokes the image of advocacy or reasoned argument. It is defined by Webster's Seventh New Intercollegiate Dictionary (1967) to mean, "to state or declare positively." Synonyms are " declare, affirm, protest, avow." The Postmaster states, however, that his and the Government's interpretation is that "asserts" refers only to "overt conduct to incite others" to strike and that "asserts" has never been thought to forbid advocacy of "a change in the law to legalize strikes by government employees." Thus the scope of the provisions would be narrowed to cover only activity which Congress may legitimately proscribe. The Government reaches this conclusion by a two-step process. First, it argues that an ambiguity is created by the "idiomatic structure of the statute." The use of the phrase "asserts the right" rather than "asserts that there is (or ought to be) a right" is said to be adequate to call attention to a special use of "assert" in the statute and oath.* The Government then suggests that the ambiguity is removed by a colloquy in the House debate on the statute, in which its sponsor indicated that the wording had been changed from "believe" to "assert" in order to narrow the scope of prohibition to incitement only.
It is absurd to think that the ordinary employee will carefully parse the oath, grasp the suggested semantic subtlety, and conclude that he may argue for the right to strike with impunity. It is more ridiculous still to imagine that he will resort to this scrap of legislative history to resolve any ambiguity if perceived. Nor can the Postmaster's interpretation, never publicized or embodied in regulations and not binding on his successors, be relied upon to any extent to remove the ambiguity.
The short of the matter is that the language of the statute, reinforced by the identical phrasing of the oath, is not ambiguous. There is consequently no occasion to examine the legislative history. Even if there were an ambiguity, the isolated colloquy the Government cites would not satisfactorily eliminate it. One would be left with words so incurably vague that men would have to guess at their meaning. In the First Amendment area, this defect is as fatal as outright prohibition of free speech.
The Government's argument is ingenious but unacceptable. Its showing is simply not enough to avoid the thrust of recent decisions striking down employment oaths and legislation which compel, or, by vagueness, may well result in abandonment of constitutionally guaranteed rights. See, e.g., United States v. Robel, 389 U.S. 258, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967); Keyishian v. Board of Regents, et al., 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967); Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969).
For the reasons stated above, the Court declares that the challenged statutory provisions and the implementing employment oath violate the First Amendment. The Court further finds that the provisions of the statute are severable. Accordingly, the Court strikes from 5 U.S.C. § 7311(3) the words, "or asserts the right to strike," and the entire text of 5 U.S.C. § 7311(4). The Court enjoins the Postmaster General from exacting, directly or indirectly, the oath contained in Clause C of POD Form 61 in connection with employment or otherwise and declares that all existing executed oaths are of no force and effect.
Counsel to submit appropriate order within one week.
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