The Court's holding on this question is a narrow one. The Fire Department's Memorandum 38 must be struck down because it fails to provide "narrow, objective and definite standards" to guard against content-based determinations by the Public Affairs Officer. The Court is not indicating that the government may never regulate its employees access to the press. The government should be allowed to control the expressive activities of its employees in the workplace when its employees' expression may cause disruption. But where the government chooses to limit its employees speech by vesting in one official the power to determine in advance who shall have access and who shall not, that power must be bounded by precise and clear standards. Memorandum 38 fails to provide these standards, and for this reason, it cannot survive a constitutional challenge.
B. The Bumper Sticker Regulation and the Departmental Reputation Rule
The plaintiffs also raise facial challenges to the remaining Fire Department Regulations. The plaintiffs challenge the Department's Bumper Sticker Regulation and the Departmental Reputation Rule on grounds that they are both void for vagueness and impermissibly overbroad. They argue that neither regulation provides firefighters with fair notice of the proscribed conduct; also, that the terms of each regulation are incapable of objective definition. The plaintiffs contend that, as a result, the Department may proscribe a broad range of constitutionally permissible expression under these regulations.
The Court agrees with the plaintiffs' contention that the Department's Bumper Sticker Regulation is facially invalid. It finds that the regulation is both overbroad and viewpoint based. However, the Court finds that the Departmental Conduct Regulation is valid on its face.
1. The Bumper Sticker Regulation is Overbroad and Viewpoint Based.
Under the due process clause of the fourteenth amendment, a law must be drafted with sufficient clarity to "give fair notice of the offending conduct." Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. Ct. 839 (1972). Laws which by their terms are susceptible to widely ranging interpretations encourage arbitrary and discriminatory application. Id. Likewise, overbroad regulations lend themselves to discriminatory enforcement and can chill the exercise of protected first amendment rights. Thornhill v. Alabama, 310 U.S. 88, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). Thus, when a regulation lacks terms which can be defined objectively, a court will strike it down for vagueness. Keyishian v. Board of Regents, 385 U.S. 589, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967). And where the regulation touches on expression protected by the first amendment, Courts require an even greater degree of specificity to withstand a vagueness challenge. Smith v. Goguen, 415 U.S. 566, 573, 39 L. Ed. 2d 605, 94 S. Ct. 1242 (1974). Similarly, when a law or regulation prohibits a substantial amount of protected conduct in addition to the targeted, unprotected conduct, it is deemed overbroad in violation of the first amendment. See Grayned v. City of Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).
The Court finds that the Fire Department's Bumper Sticker Regulation is both impermissibly vague and overbroad. It prohibits firefighters while on Fire Department property from displaying bumper stickers or decals which may cause embarrassment or harassment of Department members. But these terms escape objective definition and consequently, sweep a substantial amount of protected speech under the regulation's prohibition. A firefighter seeking to comply with the regulation is not sure, for instance, whether a bumper sticker carrying the message "D.C. Firefighters for Gay Pride" would subject his fellow firefighters to embarrassment or harassment. Indeed, the Court can imagine many stickers which comment on controversial issues that might embarrass or cause harassment of Department members.
Even stickers which address issues important to the Department, as well as the public would fall under the regulation's broad sweep. (e.g. a sticker which reads "D.C. Fire Department Needs More Money" or "a New Fire Chief").
Furthermore, the regulation discriminates between the bumper stickers which firefighters seek to display based on the viewpoint expressed. Stickers and decals which support the Department's views are unlikely to be determined embarrassing or harassing to members. On the other hand, stickers which oppose the Department's views or make light of the Department, such as those displayed by the plaintiffs, are condemned by the regulation. As the Court previously indicated, regulations which are not viewpoint neutral cannot survive constitutional scrutiny, even when they purport to regulate a non-public forum, such as a government workplace. See text infra [slip op.] at 25-26.
Nor does the Court find any way to construe the challenged regulation so as to eliminate the offense to the first amendment.
Thus, the Department's Bumper Sticker Regulation must be struck down in whole.
2. The Departmental Reputation Rule in Neither Vague nor Overbroad.
Several other courts have upheld facial challenges to "catch-all" provisions similar to the one found in Article VI, Section 4 of the Fire Department's Order Book. See Davis v. Williams, 617 F.2d 1100, 1101 (5th Cir. 1980) (upholding regulation permitting discharge for "conduct prejudicial to [the] good order" of the fire department), cert. denied 449 U.S. 937, 66 L. Ed. 2d 160, 101 S. Ct. 336; Bickel v. Burkhart, 632 F.2d 1251, 1254 (5th Cir 1980); Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 19 (2nd Cir. 1979) (upholding regulation prohibiting "unbecoming conduct detrimental to the welfare or good name of the department"); Kannisto v. City and County of San Francisco, 541 F.2d 841, 842 (9th Cir. 1976), (upholding regulation prohibiting "misconduct or any conduct . . . which tends to subvert the good order, efficiency and discipline . . . or which reflects discredit upon . . . or that is prejudicial to . . . efficiency and discipline"), cert. denied, 430 U.S. 931, 51 L. Ed. 2d 775, 97 S. Ct. 1552 (1977). Most notably, the Supreme Court in Arnett v. Kennedy, 416 U.S. 134, 158, 40 L. Ed. 2d 15, 94 S. Ct. 1633 (1974), upheld a provision authorizing the suspension or dismissal of a government employee "for such causes as will promote the efficiency of the service". The Court construed the statutory provision to exclude constitutionally protected speech. The Court then held that the provision was directed at employee conduct not speech, and in fact, was designed to limit the government's discretion in discharging federal employees. Id. at 158, 159. The Court found the provision, as limited, did not violate constitutional principles of vagueness and overbreadth. Id. at 159.
Arnett controls the Court's determination that the Departmental Reputation Rule is neither vague nor overbroad. The operative language in the rule is the provision which mandates: "Members [of the Department] shall refrain from conduct prejudicial to the Department's reputation, order, or discipline." Thus, the provision, like the one in Arnett, targets the conduct of Fire Department employees, not their speech. Moreover, the Court has reiterated throughout this opinion the government's substantial interest in the discipline and order of its Fire Department. We conclude, therefore, that, subject to the same narrowing construction applied in Arnett, the Departmental Reputation Rule survives the plaintiffs' facial challenges.
The efficient functioning of the city's Fire Department is of paramount importance. In order to maintain an effective fire fighting force, the government must be allowed leeway in the decision it makes as an employer to regulate its employees and the working environment. But the First Amendment of the Constitution draws a line where the government's discretion over its employees ends. When the governmental employer targets certain employees for disciplinary action because their speech challenges the Department's preferred viewpoint, it violates the rights guaranteed to all citizens, regardless of their employment status, under the first amendment. A court faced with such improper actions by the government must strike them down.
Therefore, the Court grants the plaintiffs' partial summary judgment motion as it concerns the disciplinary actions of the District of Columbia Fire Department taken against plaintiffs Dypsky, Darmstead, Dowey, Ricker and Lee. The Court does not decide the question of damages. Although the Court is skeptical that the plaintiffs will be able to show that the defendants owe them any material damages, both sides may submit papers on the issue no later than July 30, 1990.
Furthermore, the Court invalidates the Fire Department's Memorandum 38 and Bumper Sticker Regulation on grounds that they violate the first amendment. The defendants are enjoined from enforcing either regulation in the future. An appropriate order is attached.
Dated: July 13, 1990
ORDER - July 13, 1990, Filed
Upon consideration of Plaintiff's Motion for Partial Summary Judgment and Defendants' Cross-Motion for Summary Judgment, all memoranda in support thereof and opposition thereto, counsels' oral argument, the entire record, and for the reasons set forth in the accompanying opinion, it is by the Court this 13th day of July 1990
ORDERED that the plaintiffs' motion is granted; it is further
ORDERED that Memorandum No. 38 and Article VI, Section 3 of the Fire Department Order Book violate the First Amendment of United States Constitution; it is further
ORDERED that Memorandum No. 38, Article VI, Section 3 and Article VI, Section 4 were unconstitutionally applied to individual plaintiffs Dypsky, Darmstead, Dowey, Ricker and Lee in violation of their first amendment rights; therefore, it is
ORDERED that the defendants are hereby enjoined to:
1. rescind Fire Department Memorandum No. 38 and Article VI, Section 3 of the Fire Department Order Book and cease enforcement thereof;
2. terminate all pending disciplinary proceedings initiated against the individual plaintiffs in which the plaintiffs were charged with violations of either Fire Department Memorandum No. 38 or Article VI, Sections 3 or 4 of the Fire Department Order Book.
3. expunge from the individual plaintiffs' employment records all references to such disciplinary proceedings.
It is further ORDERED that the parties may submit papers on the question of material damages no later than July 30, 1990.