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July 31, 1972


The opinion of the court was delivered by: GESELL


GESELL, District Judge:

The National Association of Letter Carriers and six federal employees have brought this class action on behalf of all federal employees seeking a declaratory judgment that 5 U.S.C. § 7324 (a)(2), the provision of the so-called Hatch Act which prohibits certain federal employees from taking "an active part in political management or in political campaigns," is unconstitutional. *fn1" In urging that enforcement of the challenged provisions be enjoined, plaintiffs assert that the Act is vague, overly broad, and in conflict with the First Amendment to the Constitution of the United States. Defendants are the Civil Service Commission, its three members, and the Secretary of Health, Education and Welfare. Finding the question substantial in the light of current constitutional doctrine, this three-judge court was convened pursuant to 28 U.S.C. §§ 2282 and 2284. A voluminous record was developed by stipulation, some testimony was taken, and the issues have been fully briefed and argued.

 There is an obvious, well-established governmental interest in restricting political activities by federal employees which was asserted long before enactment of the Hatch Act. Many federal employees have been prevented from running for political office and engaging in the more obvious forms of partisan political activity since the passage of the Civil Service Act in 1883. *fn2"

 The Hatch Act provides in pertinent part that any employee of an Executive agency or an employee of the District of Columbia may not take an active part in political management or political campaigns of a partisan nature and is subject to removal or suspension without pay for violation. The appropriateness of this governmental objective was recognized by the Supreme Court of the United States when it endorsed the objectives of the Hatch Act. United Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754 (1947); cf. Oklahoma v. United States Civil Service Commission, 330 U.S. 127, 67 S. Ct. 544, 91 L. Ed. 794 (1947).

 A narrower issue, however, is presented here which was specifically left unresolved by Mitchell.3 This litigation focuses not on the merits of the objective of the Hatch Act but on the manner in which Congress defined the conduct it purported to prohibit in the name of "political management or political campaigns." The meaning and effect of the prohibitions measured against First Amendment standards is now properly raised by qualified plaintiffs having a direct interest as a class in the matter, and this admittedly troublesome constitutional issue can no longer be avoided.

 Section 15 of the Act here challenged provides:


. . . the phrase "an active part in political management or in political campaigns" means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under rules prescribed by the President. § 7324(a).

 This definition is ambiguous and unsatisfactory. It incorporates by reference over 3,000 rulings made by the Commission between 1886 and 1940. These rulings, which were not before the Congress when the Act was passed, have now been assembled and are in the record of this case. *fn4" When examined they have a sweep and indefiniteness that no one would even attempt in these days to defend if analyzed against the strictures of the First Amendment. A few examples suffice to make this apparent. Disciplinary action was taken against federal employees in situations where the employee engaged to some extent in the following:


(1) made a wager on an election;


(2) offensively discussed a "political question";


(3) disparaged the President;


(4) denounced a political party while in a jovial mood due to alcohol;


(5) publicly engaged in a political discussion;


(6) wrote a political letter;


(7) publicly expressed a political opinion;


(8) published a political article;


(9) wore a political button while on duty;


(10) stated unsubstantiated facts about ancestry of a candidate;


(11) made offensive political remarks;


(12) failed to discourage a spouse's political activity;


(13) stated disapproval of treatment of veterans while acting as a Legion officer in a closed Legion meeting;


(14) was partisan in political views;


(15) allowed one's name to be associated with an objectionable political affair;


(16) authored an anonymous political communication. *fn5"

 As if conscious of the latent overbreadth and vagueness of the rulings which were never disclosed in hearings, committee reports or debates, the Act contains a significant qualifying provision which states, "An employee . . . retains the right to vote as he chooses and to express his opinion on political subjects and candidates." 5 U.S.C. § 7324(b). It is immediately unclear how the incorporation by reference and this qualifying provision were intended to operate together. At first glance they appear mutually contradictory. One fixes the definition and the other makes the definition fluid.

 The incorporation of prior rulings seems to have been intended in part to serve as a brake on any possible expansion of the meaning of the phrase "an active part in political management or in political campaigns" beyond what was generally understood by that phrase under Commission interpretations as of 1940. *fn6" The incorporated rulings were to serve generally as an upper limit on future interpretations or expansions of previously prohibited political activity. The qualifying provision in section 7324(b) indicates that they were subject to being cut back or modified in some indefinite way more consistent with the First Amendment "rights" of expression.

 The difficulty, however, is that no constitutionally acceptable mechanism was provided for accomplishing this result. Grave ambiguities remain. The defect lies not in the basic underlying purpose to limit certain partisan political activities by federal employees but rather in its drafting. Prohibitions are worded in generalities that lack precision. There is no standard. No one can read the Act and ascertain what it prohibits. *fn7" Neither the Commission nor any other agency was given rulemaking power. Indeed even those most intimately concerned with its enforcement are in doubt and have sought legislative clarification. *fn8"

 The Commission recently sponsored a three-volume work called the Political Activities Reporter (P.A.R.) which catalogues in commendable detail the rulings made under the Act since 1940. Analysis of these rulings shows that the Commission has generally ignored many of its pre-1940 rulings where questioned conduct appears to involve only opinion. Expressions of political opinion have been permitted except when the circumstances shown in a particular disciplinary action support a finding that an opinion on a political question was expressed by the employee with the intent of influencing others. *fn9" However, putting aside the fact that enforcement of any pre-1940 rulings still remains a threat, the administrative actions of the Civil Service Commission, even if unqualifiedly accepted as the administrative gloss on the Act, still place any federal employee at hazard if he ventures to speak on a political matter since he will not know when his words or acts relating to political subjects will offend.

 If he writes a letter to a newspaper seeking support for a program endorsed by a political party, such as pollution control, does he intend to influence? How many people can see or hear what he writes or says before an intent to influence by his opinion will be found? Can he respond to a pollster? Can he attend a political rally and sit on the platform where his presence will be noted? If he is a member of a Union, a P-TA, or a fraternal lodge, can he urge the organization to pass a resolution on a political issue? Can he appear on a television panel to discuss a question that for many may have political import? What issues are, after all, political in a campaign year -- China, crime in the streets, inflation, foreign aid, national debt? Does intent to influence appear more likely depending on his pay grade, on his title, or on to whom he talks?

 Confusion and uncertainty persist under this intent-to-influence formula. Any conscientious public servant concerned for the security of his job and conscious of the latent power in his supervisor to discipline him if he transgresses into areas of questioned conduct must feel continuously in doubt as to what he can do or say politically. The result is unacceptable when measured by the need to eliminate vagueness and overbreadth in the sensitive area of free expression.

 The Civil Service Commission has acted responsibly in attempting the impossible task of applying the uncertain and conflicting provisions of the Act. Its efforts, however, were thwarted by the fact that it was given no authority under the Act to accommodate rigidly incorporated prior rulings to the rapidly evolving court interpretations of the First Amendment and the basic inconsistency between prior rulings and, interpretations of the constitutional right to state opinion still persists. Congress not only gave insufficient standards but also withheld the authority essential to enable the Commission to create essential clarity out of the general, imprecise prohibition enacted.

 The Act is capable of sweeping and uneven application. It is of no consequence that particular prior rulings may be partly ignored by those presently charged with enforcement. Conscientious public servants may still lean over backwards to abide by these dormant rulings, and, in any event, no one can say to what extent interpretations of the Constitution have changed them. *fn10" Nor is it an answer, as the defendants feebly suggest, that people of common intelligence know what is comprehended by active and partisan political activity. Uncertainties abound and they will produce excessive caution and stifle words and acts not explicitly prohibited. Small wonder that even those concerned with enforcement share the sense of uncertainty and confusion, as the record before us attests. *fn11" Thus do generalized, vague prohibitions become misunderstood and misapplied and serve to limit expression by millions of Federal Government employees, and even their families, in a society where political speech and uninhibited, robust, wide-open debate on public issues are at the essence of self-government.

 Ours is not a form of government that will prosper if citizens, particularly Federal Government servants, must live by the mottoes "better be safe than sorry" and "don't stick your neck out." Government employment should, of course, carry some well-defined limitations upon participation in partisan political matters, but Congress may not by reason of this desirable objective neutralize such a large segment of the populace from expressing any opinion on any "political" issue with the intent of somehow influencing someone else. In the end everything may appear political, all speech may intend to influence, and conformity is imposed in the fashion of more regimented, less democratic governments.

 This is a classic case of a statute which in its application has a "chilling effect" unacceptable under the First Amendment. The use of a shorthand expression such as this in legal terminology sometimes tends to obfuscate the significance of the underlying principle. Commencing around 1940 in a series of important First Amendment cases, the Supreme Court evolved the "chilling effect" doctrine to deal with the vice of overbreadth and attendant vagueness in legislation limiting speech such as that so obviously presented here. *fn12" It declared that men of common intelligence must not be made to guess at the meaning of a statute affecting these rights. Some activities involving speech and association may be regulated where a proper governmental purpose and definite need is demonstrated. This interference with privileged conduct must be carefully and narrowly drawn. Executive agency employees as citizens are entitled to be specifically informed as to what the Congress intends to forbid. *fn13" Restrictions may not be achieved by means which sweep unnecessarily broadly into the First Amendment areas. *fn14" The right and privilege of expression and association cannot be so unnecessarily invaded that the use is dampened and discouraged. To chill is to dispirit, and the First Amendment will not flourish but can be gradually suffocated in such an atmosphere.

 The Supreme Court of the United States has left no doubt on this score:


We emphasize once again that "[precision] of regulation must be the touchstone in an area so closely touching our most precious freedoms," . . . "[for] standards of permissible statutory vagueness are strict in the area of free expression. . . . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." . . . When one must guess what conduct or utterance may lose him his position, one necessarily will "steer far wider of the unlawful zone. . . ." . . . For "[the] threat of sanctions may deter . . . almost as potently as the actual application of sanctions." . . . The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed. . . . Keyishian v. Board of Regents of University of State of New York, 385 U.S. 589 at 603-604, 87 S. Ct. 675 at 684, 17 L. Ed. 2d 629 (1967).

 No less can be said of Federal Government employees.

 The record before this Court emphasizes the growing reach of this Hatch Act legislation which, with the expansion of federal grants to various state services, now encompasses millions of Federal Government employees and their families. It is now obvious that whatever may have been the validity of the Hatch Act in 1940, it cannot as presently interpreted withstand constitutional challenge under contemporary interpretations of the First Amendment.

 Two courts have already recognized the necessity of re-examining the Act in the light of controlling precedents. Hobbs v. Thompson, 448 F.2d 456 (5th Cir. 1971); Mancuso v. Taft, 341 F. Supp. 574 (D.R.I. 1972). *fn15"

 Defendants urge that Mitchell is binding. As indicated above, this does not appear to be the case since the Mitchell opinion explicitly left open the question of the constitutionality of the incorporation-by-reference section of the Act. However, even if Mitchell's holding is considered binding, as the defendants contend, it is inconsistent with subsequent decisions delineating First Amendment freedoms. These precedents, which developed the "least restrictive alternative test" for governmental incursions into the area of free speech, undercut the "rational basis" test upon which the Mitchell analysis of the Hatch Act was based. *fn16" The decisions, coupled with changes in the size and complexity of public service, place Mitchell among other decisions outmoded by passage of time.

 It is difficult to declare a statute long on the books and so well motivated unconstitutional. The arguments advanced by the dissent, however, are not persuasive. In the delicate, precious area of free speech, the obligation of the courts to seek all possible, even if somewhat tortured, means to uphold admittedly fuzzy congressional action must give way to other considerations.

 If the Congress undertakes to circumscribe speech, it cannot pass an act which, like this one, talks in riddles, prohibiting in one breath what it may be argued to have allowed in another, leaving the citizen unguided but at hazard for his job. Perhaps details could have been left to the administrative discretion, but in this instance the Commission was given no rulemaking power, and the Act itself does not state with any precision what evils it seeks to prevent. Where speech is to be limited, it is no answer, as the dissent suggests, to imply that a reading of the voluminous Political Activities Reporter and resort to advisory rulings by the Civil Service Commission will give one who wants to express himself adequate guidance. Speech must not be controlled and subject to censure so that one cannot respond without prior clearance to the demands of free expression in ordinary daily affairs. If there are impermissible areas of activity, the overriding governmental interest must be marked with utmost clarity by the Congress in a form that is obvious to the sophisticated and unsophisticated alike. *fn17"

 Accordingly, the Court declares 5 U.S.C. § 7324(a)(2) of the Hatch Act unconstitutional in that its provisions are impermissibly vague and overbroad when measured against the requirements of the First Amendment to the Constitution. The injunction against enforcement is granted and a stay of this Order is granted pending determination by the Supreme Court of the United States. So ordered.

 PARKER, J., concurs in this opinion and reserves the right to file a separate concurring opinion.

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