UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia
Fahy, Senior Circuit Judge, Leventhal and Robb, Circuit Judges. Fahy, Senior Circuit Judge, concurring. Robb, Circuit Judge, dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
This appeal from the denial by the district court, Waters v. Stans, 341 F. Supp. 441 (D.D.C. 1972), of a prayer for declaratory and injunctive relief, claims that First and Fifth Amendment rights were violated by a five day suspension of appellants by the Bureau of the Census for violation of a regulation prohibiting "conduct which violates common decency or morality or use of improper or obscene language." *fn1
Appellants, Lillian B. Waters and Joseph R. Cooper, Jr., were leaders of a "Task Force" organized by certain black employees at the Bureau of the Census in Suitland, Maryland, to protest alleged racial discrimination in hiring and promotion practices at the Bureau. A main focus of the protest activity was the public cafeteria utilized by many Bureau employees in the basement of Federal Building #3, in a complex of federal buildings in Suitland. On several occasions, members of the "Task Force", including appellants, protested during lunch-time hours, either at the back of the cafeteria near the primary entrance, or by parading through the main aisles and cross aisles, holding signs lettered with slogans. One of these read "Pigs Off Census." These protests continued for several months, and during this time, prior to July 16, 1971, no Bureau official ever advised or warned any member of the Task Force against this cafeteria activity, or sought any reprisal.
On July 16, 1971, between 12:30 and 1:00 p.m., approximately six employees, including appellants, were holding signs near the entrance to the cafeteria. Among the reasons for the picketing was the alleged discriminatory discharge of Mrs. Denise Gray, attributed by the demonstrators to the actions of two white female supervisors in the Bureau, Mrs. Stockwell and Mrs. Gans.
While the peaceful picketing was in progress, these two supervisors entered the cafeteria, bought their lunches and sat down at a table. Some time later, appellants walked down the main aisle to that table, and stood in close physical proximity to the two supervisors. *fn2 They then held aloft a large sign (two feet by four feet) which read "PIGS OFF CENSUS." The sign was seen by a large number of the patrons of the cafeteria, and caused a stir. After five minutes, the supervisors stopped eating their lunch and left the cafeteria, visibly upset.
On July 26, 1971, appellants were informed by letter of their proposed suspension *fn3 for a period of five working days for "misconduct which violates common decency in employee relations." After preliminary proceedings in the Bureau, appellants were notified of their suspension. Their action, filed October 1, 1971, in the District Court sought a declaratory judgment and injunctive relief. Judge Gesell issued a temporary restraining order, directing that a hearing be held to review the administrative action taken. An appeals examiner was designated by the Bureau. He conducted a hearing on October 19, and on November 11 rendered his decision supporting the decision to suspend. On cross motions for summary judgment, the District Court, by memorandum and order of February 17, 1972, dismissed appellants' complaint. The Bureau agreed to stay the suspensions pending the appeal. I. CLAIM THAT ACTIVITY IS PROTECTED BY THE FIRST AMENDMENT.
Appellants first claim that their activity was protected speech under the First Amendment. For purposes of analysis, Street v. New York, 394 U.S. 576, 22 L. Ed. 2d 572, 89 S. Ct. 1354 (1969), we separate out two features of the activity involved: one, their use of the epithet "Pigs Off Census," and the other, the appellants' conduct, their standing close to the supervisors at the table during their demonstration.
Judge Gesell found that "what occurred in this instance was a pointed verbal assault on fellow employees. . . .",4 and we take this to be based on the use of "Pigs Off Census" as a slogan on the sign held up at the table of the two supervisors, since there was no other verbal activity by appellants during their demonstration.
The District Court's "verbal assault" concept has a reference point in Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942), which sustained a conviction for the use of offensive language to a person lawfully in the street, on the ground that the New Hampshire Supreme Court had sharply limited the statutory language "offensive, derisive, or annoying word" to "fighting" words. See Gooding v. Wilson, 405 U.S. 518, 522-23, 31 L. Ed. 2d 408, 92 S. Ct. 1103 (1972). So-called "fighting words" are "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California, 403 U.S. 15, 20, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971) (Harlan, J).
For purposes of First Amendment protection, we cannot equate the "Pigs Off Census" sign, as used in the circumstances of this case, with "fighting words". This slogan had been used previously in the lunchroom, without any indication that it might provoke a violent reaction on the part of other employees. The fact that words may offend the sensibility of some is not determinative. As Justice Harlan stated in Cohen (supra) at 21,
The ability of the government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.
In some cases, a different result can follow from directing the words at particular individuals as compared with a general audience, since the potential for provocation in the former event might be greater.5 But the words in this case had acquired a certain currency in lunchroom demonstrations and since the two supervisors were "embarrassed" rather than subject to violent reaction, this is not such a case. See Lewis v. City of New Orleans, supra note 5, vacating and remanding a conviction where a police officer, while in the performance of his duty, was called "g-- d--- m//--- f///--- police".6
A different issue altogether is raised in evaluating the "conduct" of appellants at the table of the supervisors. Those who communicate ideas by conduct, such as picketing, are not afforded the same kind of freedom as those engaged in pure speech. Cox v. Louisiana, 379 U.S. 536, 555, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965).7 Peaceful picketing in a location open generally to the public is protected by the First Amendment, absent other factors involving the purpose or manner of the picketing, Amalgamated Food Employees Local 590 v. Logan Valley Plaza, 391 U.S. 308, 313, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968). The picketing involved in the actions of appellants on July 16, 1971, however, carried with it a strong element of physical intimidation which brought it outside First Amendment protection. As Justice Marshall stated in Logan Valley Plaza (supra) at 321:
Thus it has been held that persons desiring to parade along city streets may be required to secure a permit in order that municipal authorities be able to limit the amount of interference with the use of the sidewalks by other members of the public by ...