"fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 103 S. Ct. at 1689. This is determined "by the content, form, and context of a given statement, as revealed by the whole record." Id. at 1690.
Gordon's published column, including the statement about the Crane letter, clearly constitutes speech on a matter of public concern, and the Court so holds. The column concerns not only strategies for increasing union membership, itself protected by statute, but also touches on the much-discussed issue of how unions should respond to the right-to-work movement.
The right-to-work issue is particularly relevant for postal workers because postal employees are protected by statute from having to join any union. See 39 U.S.C. § 1209(c).
The labor movement orientation of Gordon's column is set at the outset in the column's title, borrowed from Karl Marx, and is developed most clearly in the discussion of the Crane letter. In this context, the statement about finding and reading the Crane letter while sorting third-class mail clearly represents an attempt to underscore the column's theme that non-union workers should be persuaded that their common interest lies with their fellow workers and not the right-to-work movement.
The column carries on a long tradition of union writers appealing for worker solidarity.
Gordon's column is in sharp contrast to the speech that the Court in Connick found unprotected in most respects because it basically concerned internal office politics. See Connick, 103 S. Ct. at 1691. The Court there expressly did not hold that all speech concerning labor matters was not of public concern. See id. at 1691 n.8. Rather, it simply properly rejected the effort to attach a broader meaning to statements of purely personal interest. See, e.g., Murray v. Gardner, 239 U.S. App. D.C. 212, 741 F.2d 434, 438 (D.C. Cir. 1984); Foster v. Ripley, 207 U.S. App. D.C. 217, 645 F.2d 1142, 1148 (D.C. Cir. 1981). In this case, Gordon's personal interest in his statement, if any, is remote and does not detract from the statement's presentation of matters of public concerns.
In asserting that Gordon's speech deserves little if any constitutional protection, the Postal Service focuses on Gordon's assertion that he never opened the mail but only said he did to dramatize his theme about the right-to-work movement. The Postal Service thus repeatedly characterizes Gordon's speech as a "knowing lie" or a "knowingly false statement of fact." The defendant then emphasizes that libel law does not protect knowingly or recklessly false statements,
and asserts the same lack of protection should be found here.
The Court must reject this invitation to read the reference to the Crane letter, wrested from context, as a mere statement that a postal employee has read a piece of mail on duty. As noted above, the Court's duty in considering the constitutional issue is to judge the statement in its entire context based on the full record.
It would be pernicious to withhold constitutional protection for public employee speech whenever the statement can be found to be knowingly false. This would allow a speaker to be punished for a statement that amounted to no more than a harmless fiction or an apocryphal story that illustrated his theme but was not literally true.
Such fictions are stock-in-trade for politicians and others speaking on issues of public concern. Absent harm in a real sense, such parables can hardly even be called lies or knowing falsehoods. Obviously the injurious nature of the statement to the employer must also be considered.
In Pickering, the Supreme Court indicated that an employee could be fired for injurious false statements that were knowingly or recklessly made. 391 U.S. at 574. But the Court expressly left open the question "whether a statement that was knowingly or recklessly false would, if it were neither shown nor could reasonably be presumed to have had any harmful effects, still be protected by the First Amendment." Id. at 574 n.6. The present case requires the Court to confront that question. Otherwise protected speech cannot lose its constitutional protection solely by virtue of containing a knowingly or recklessly false statement, absent a showing of the harmful nature of the speech.
B. The Government's Interest
Accordingly, the Court must consider whether there has been such a showing of harm in this instance that "the government's interest in the effective and efficient fulfillment of its responsibilities to the public," Connick, 103 S. Ct. at 1692, outweighs the employee's interest in free speech and thus justifies Gordon's discharge.
This balancing of the employee's interest in speech and the employer's interest in its responsibilities to the public will vary depending on a number of factors, including the nature of the employee's expression and how substantially it involves matters of public concern. Connick, 103 S. Ct. at 1692-93. Other factors include whether the speech occurred on an employee's own time and in non-work areas of the workplace, id. at 1693 n.13, whether the nature of the work requires close working relationships easily upset by defiant employee speech, id. at 1692, whether the speech concerned the employee's own employment, id. at 1693, and whether the speech violated announced office policy, id. at 1693.
The government argues that even if there is some protection for what it characterizes as "knowingly false" speech, it needs to make "only the most minimal showing of injury" to defeat the constitutional protection. It relies on the same argument made and rejected above. The extent of harm caused by an employee's speech is a separate objective inquiry that does not turn on the speaker's subjective state of mind.
A showing of state of mind cannot substitute for the showing of injury.
While there are cases where the harmful nature of speech is so apparent that no evidentiary inquiry need be made into actual disruption of the employer's "responsibilities to the public," there are other cases of less obvious harm where the employer must show actual, not merely presumed, disruption of its ability effectively and efficiently to fulfill its responsibilities. Compare McGehee v. Casey, 231 U.S. App. D.C. 99, 718 F.2d 1137, 1148-49 (D.C. Cir. 1983) (CIA need not show actual harm from publication of classified documents but still must "justify censorship with reasonable specificity" to court) with Tygrett v. Barry, 201 U.S. App. D.C. 293, 627 F.2d 1279, 1285 (D.C. Cir. 1980) (government must show actual harm from employee speech, not just "reasonable inference"). See also Hanson v. Hoffman, 202 U.S. App. D.C. 42, 628 F.2d 42, 49-50 (D.C. Cir. 1980) (discussing employee speech cases where summary judgment found inappropriate due to inadequately developed facts relating to harm to government's interests). In Connick v. Myers, the Supreme Court deferred to the judgment of the employee's supervisors that the speech at issue had disrupted an office where close working relationships were essential to the office's smooth functioning. 103 S. Ct. at 1692 & n.11. In that case, the speech focused only minimally on matters of public concern. Accordingly the Court stated, "We caution that a stronger showing may be necessary if the employee's speech more substantially involved matters of public concern." Id. at 1692-933.
This is a case where the Court has concluded that a stronger showing, involving more than just a presumption of harm, is necessary. The speech did concern a matter of substantial public concern. It was written off-duty and off-premises and publicized through a limited-distribution newspaper. Other factors deemed relevant by the Court in Connick are present here. This was not a workplace like that in Connick where a close working relationship between supervisors and employees was essential to proper functioning. Nor was the objectionable portion of Gordon's speech, once retracted and explained, substantially likely to impair Gordon's long-standing satisfactory relationship with his supervisors.
The evidence that the Postal Service has chosen to present on the harm caused by Gordon's speech is contained in an affidavit by its chief postal inspector, Kenneth H. Fletcher.
That affidavit shows no awareness of the particular facts of this case.
It emphasizes that "the Postal Service places the highest priority on maintaining the public's confidence in the integrity of the mails," Affidavit at para. 12, and that "it is crucial that the public have confidence that the Postal Service will deliver all types of communications . . . without bias or favoritism for or against any person, group, political party or organization or its members," id. at para. 17. The Court fully accepts the dedication of the Postal Service to these propositions and the importance of maintaining the security of all classes of mail. But the affidavit contains no evidence that Gordon's speech harmed public confidence in the Postal Service. There is no evidence that Gordon's speech was publicized outside a small segment of the Postal Service and its union, and there is no evidence that any member of the public complained or otherwise brought the matter to the Service's attention.
Even if the Postal Service were required to show only presumed, not actual, harm to its public image, the Court would hesitate to find that such harm reasonably could be presumed on these facts. If Gordon had discussed opening and reading a piece of first-class mail, whose privacy is sacrosanct, harm to the public perception of mail privacy might be more easily presumed. Third-class mail, which is generally meant for the widest possible public dissemination of advertising and other "junk" mail, should not be subject to such an automatic presumption.
The case also might be different if Gordon's statement had been broadcast outside the Postal Service and the union membership.
The Postal Service affidavit identifies a second type of harm, stating that "any action on the part of a postal employee -- especially an employee with influence among his co-workers -- which would tend to lessen the resolve of his fellow employees to safeguard the mails seriously detracts from this effort." Id. at para. 7. This generalized conclusion, however, is again not brought home to this case. No facts are presented as to whether Gordon's co-workers even knew that the conduct described in his original column violated a regulation until he told them so himself in his retraction, much less that it tended to lessen their resolve to safeguard the mails.
Besides harm to public confidence and to the work of fellow employees, the affidavit asserts a third and final type of harm justifying Gordon's discharge, that "such statements, whether true or not, demonstrate the unsuitability of the individual for employment in the Postal Service because such statements are a repudiation of an essential function of the employee's job." Id. at para. 21. But this is again a conclusion, not a fact. There is no basis given for doubting the sincerity of Gordon's claim that any "repudiation" was unintended.
The Postal Service has failed to meet its burden of showing any actual harm from the speech, much less harm substantial enough to outweigh the interest in free speech. On the other hand, plaintiffs have shown a strong First Amendment interest in the protection of Gordon's speech.
Moreover, where the likelihood of harm is not apparent on the face of the employee's statement, the agency should have to show at least that the employee was negligent in not knowing of the extrinsic facts making the statement harmful to the agency's reputation. No such showing has been made here. Although it has had opportunity to do so, the government has presented no evidence of Gordon's awareness of any third-class mail regulations or of his duty to be aware of them. Plaintiffs have introduced evidence that the regulations are not published in the Postal Service's employee manual and are not posted or otherwise readily accessible to employees.
Accordingly, the defendant's motion for summary judgment is denied, and plaintiffs' cross-motion for summary judgment is granted. The case will proceed to trial on the only remaining issue: whether the protected speech was a substantial or motivating factor in the discharge. An appropriate Order is filed herewith. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 598 F. Supp.]
Upon consideration of defendant's second motion for summary judgment, plaintiffs' cross-motion for partial summary judgment, and the entire record herein, for reasons stated in an accompanying Memorandum, it is hereby
ORDERED that defendant's second motion for summary judgment is denied, and it is further
ORDERED that plaintiffs' cross-motion for partial summary judgment is granted, and it is further
ORDERED that a scheduling conference will be held in Courtroom No. 6 at 9:00 a.m. on November 27, 1984, to set pretrial and trial dates on the remaining issue herein of whether the protected speech was a substantial or motivating factor in the discharge.