PAROW v. KINNON

300 F.Supp.2d 256 (2004) | Cited 2 times | D. Massachusetts | January 22, 2004

MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR DECLARATORY RELIEF AND SUMMARY JUDGMENT

This First Amendment case pits seven Maiden firefighters and theirUnion, Local 902 of the International Association of Fire Fighters(Union), against defendants Neil Kinnon, the Commissioner of the MaidenFire Department (Department), Richard Howard, the Mayor of Maiden, andplaintiffs' employer, the City of Maiden. Plaintiffs maintain that theirconstitutional right to free expression has been infringed by Departmentrules, regulations, and directives forbidding public comment ondepartmental matters. At the heart of the dispute is a struggle betweenthe Union and City officials over the appropriate number of Maidenfirefighters to be called for duty on each shift. In November of 2002,the court entered a preliminary injunction ordering the Commissioner towithdraw a directive banning all non-approved advocacy signs from firestation premises and enjoining the Department from imposing discipline onfirefighters who had displayed signs on their personal vehiclesPage 2protesting a reduction in the minimum staffing level. Plaintiffs now askthe court to declare four of the Department's Rules and Regulations andtwo directives issued by the Commissioner unconstitutional, and to entersummary judgment on their claims of personal injury. The defendantsoppose some, but not all, of the relief requested and seek a declarationthat the reinstatement of a policy banning all signs of an advocacynature from fire station premises is constitutionally permissible.

BACKGROUND

In early 2002, Commissioner Kinnon and Mayor Howard, faced withburgeoning overtime costs in the City of Maiden Fire Department,1announced plans to reduce the minimum manning level from twenty-twofirefighters on a shift to eighteen, and to effectively eliminate theposition of deputy aide.2 Plaintiff Brian Parow, speaking on behalfof the Union, vociferously criticized the proposed staffing reduction innewspaper articles, paid advertisements, and leaflets distributed toMaiden homeowners.

On a Saturday night in late August of 2002, the manning level fellbelow twenty-two firefighters. During the affected shift, a residentialfire resulted in a homeowner's death. In reporting the fire, the MaidenAdvocate published an article containing the following excerpts.

James Hattersley of Maiden was pronounced dead at Melrose-Wakefield Hospital after a 9:40 p.m. fire which he is reported to have battled in the last moments of his life. . . . It was the first fire death in the City in over three andPage 3 a half years. Hattersley's death comes in the midst of a debate over minimum manning and during a shift when the Department was operating at 21, a figure one shy of the minimum manning which fire officials stress is the lowest at which they can safely operate. Mayor Richard Howard has stated that mutual aide from other local fire departments ensures the quality of the Maiden Fire Department even when working below minimum manning.

On Saturday, the Department battled the fatal fire without the help of a deputy's aide whose duties include driving the deputy to the scene and operating a heat sensing camera capable of detecting fire extension as well as human bodies, according to Maiden fire union representative Brian Parow. "We're not going to play the game of could his death have been prevented, but there's some guy laying on a table right now," said Parow. "We're not going to say its because the aide wasn't there. But the aide has the camera. His job is to go in and find someone."

Within days of the article's appearance, Parow was given a writtenreprimand for violating a departmental policy banning public commentabout a fire under investigation. Parow was allegedly told that if heever "put an article in the Maiden Advocate again," additional "actionsmay be taken." Plaintiffs' Memorandum, at 5. Parow suffered no loss ofpay or benefits as a result of the reprimand.

Undaunted, Parow published an open letter in the Maiden Advocateaddressed to the residents of Maiden. In the letter, Parow explained theUnion's position on manning levels, outlined the Union's ongoing disputewith the City, and declared that the Union would not be intimidated frompressing matters further. Shortly thereafter, Parow was involuntarilytransferred from fire suppression duty to a fire prevention post. Severaldays later, he was returned to his original position.

On November 1, 2002, Commissioner Kinnon issued a formal directivebarring any payment of overtime so long as eighteen firefighters reportedfor work on a scheduled shift, and requiring the deputy aide to assumeline duties whenever the manning level fell belowPage 4twenty-one firefighters. The last full paragraph of the directivestated that: any new signs displayed on any station or its adjacent property regarding apparatus out of service, not previously authorized by the Commissioner, will result in the suspension of the Station Captain on duty and disciplinary action being taken against the working deputy depending on their knowledge of such signs.

On November 7, 2002, Union firefighters defied the directive by placingsigns protesting the Commissioner's directive on their personal vehicles.The signs contained pictures and statements such as:

September 11, 2001 — 22 Fire Fighters Minimum Now . . . 18 Fire Fighter Minimum! How safe do you feel? What if you had a fire and no one could come? It's 2:00 a.m., your house is on fire, do you know where your fire truck is? Ask your Mayor!

Personal vehicles festooned with the signage were parked prominently onthe street in front of the Maiden fire station and in the adjoiningparking lot. Plaintiffs contend that in the past firefighters had beenpermitted to display signs on their vehicles opposing Proposition 21/2and supporting political candidates, including candidates for schoolcommittee and mayor.

On November 8, 2002, plaintiffs Galen Yoshizumi, Michael Buckley,Patrick Feran, and James Varzakis were ordered to remove the signs fromtheir vehicles. They refused and were given written reprimands togetherwith a warning that further defiance of the signage ban would lead tomore serious discipline. On November 10, 2002, Parow received a writtenreprimand and an order to remove a sign from his vehicle protesting themanning level reduction.

Chapter 5, Sections 6 and 7 of the Maiden Fire Department's Rules andRegulations provide as follows.Page 5

Section 6. Members shall not present a petition relative to the administration of the fire department to the mayor or any member of the city council without notifying the commissioner and chief. Section 7. Members or employees of the department shall not deliver addresses at public gatherings concerning the work of the department nor shall they under any circumstances make statements for publication concerning the plans, policies, or affairs of the administration of the fire department unless authorized to do so by the commissioner and chief.

Chapter 5, Section 25, states in pertinent part that a member of theDepartment shall not

[g]ive any information relative to fires except as otherwise provided in these Rules and Regulations [or] furnish information relative to the business or affairs of the department to persons not connected therewith, except as authorized by the chief. In addition, Chapter 5, Section 37 provides that [w]henever summoned or called before any court, board, or commission, outside of the department, for the purpose of investigation or any other reason involving a matter in which the department is in any way concerned, [a firefighter must] immediately notify the commissioner or chief of department.

On November 14, 2002, plaintiffs sought injunctive relief barring thedefendants from enforcing the ban on protest signage and revoking theCommissioner's disciplinary actions. On November 26, 2002, this courtordered the withdrawal of the "final paragraph of the Commissioner'sNovember 1, 2002 Memorandum prohibiting the display on fire stationproperty of any non-approved sign protesting municipal staffing levelsand budgetary decisions." The court further held that the order was"without prejudice to the City's right to ban all signage of an advocacynature from fire station property without discrimination as to itscontents."3Page 6

The City complied immediately with the court's order. In response tothe court's observation that a content-neutral ban on all advocacysignage on fire department property might be constitutionallypermissible, the City announced its intention to reinstate an April 26,2002 directive issued by the Commissioner stating that "[n]o signs are tobe displayed on Fire Department or City Property which are not officialin nature. All future signs must now be approved by the Chief andCommissioner."4

Plaintiffs now ask that the court enter declaratory and summaryjudgment "on those aspects of defendants' conduct that the court enjoinedin its November 26, 2002 Order." Specifically, plaintiffs request rulingsthat:

(1) Defendants' promulgation of the final paragraph of the November 1, 2002 Memorandum was unconstitutional because it prohibited the display on fire station property of any non-preapproved sign protesting municipal staffing levels and budgetary decisions; (2) that Defendants' discipline of PlaintiffsPage 7 based on an alleged violation of the unauthorized signage provision of the November 1, 2002 Memorandum was unconstitutional; and (3) that Defendants' discipline of Plaintiff Parow for his exercise of his First Amendment right to free expression on issues of public concern, including fire department staffing levels and budgetary decisions, was unconstitutional.

Plaintiffs' Memorandum, at 13. Plaintiffs, as additional relief, askthat the court declare sections 6, 7, 25, and 37 of Chapter 5 of theDepartment's Rules and Regulations unconstitutional.

DISCUSSION

First Amendment Standing

Standing determines the power of a federal court to adjudicate themerits of a dispute. Warth v. Seldin, 422 U.S. 490, 498 (1975). There arethree fundamental requisites of standing

that every litigant invoking the jurisdiction of the federal courts must possess: (1) injury-in-fact — an invasion of a legally protected interest that is both concrete and particularized, and actual or imminent; (2) causation; and (3) redressability. . . . Several prudential considerations also infuse standing determinations. These considerations, which militate against standing, principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches.Benjamin v. Aroostook Medical Center. Inc., 57 F.3d 101, 104 (1st Cir.1995).

While a fundamental constitutional concept, the contours of thestanding doctrine have been characterized as "a morass of imprecision."New Hampshire Right to Life Political Action Committee v. Gardner,99 F.3d 8, 12 (1st Cir. 1996). This is especially true in the FirstAmendment area where the high value placed on free public discourse hasled courts to relax the normally stringent requirement that a litigantshow an injury-in-fact asPage 8a prerequisite of suit.

The general rules governing First Amendment standing are easy enough tostate, but depending upon the factual context, are often difficult toapply. Two types of actual injury give rise to First Amendment standing.The first is the injury caused by the threat that the speaker will beprosecuted or otherwise punished for his or her speech. In thiscircumstance, plaintiffs "may have standing even if they have never beenprosecuted or threatened with prosecution." Manqual v. Rotger-Sabat,317 F.3d 45, 56-57 (1st Cir. 2003). It is the possibility of a punishmentas the price of one's speech, whether or not the threat of beingsanctioned is realized, that causes harm to the speaker. New HampshireRight to Life, 99 F.3d at 13. While this type of injury is most oftenasserted by plaintiffs challenging the threat of criminal prosecution,See Diamond v. Charles, 476 U.S. 54, 65 (1986), it also applies when thethreatened sanction takes the form of a regulatory or financial penalty.See American Civil Liberties Union v. The Florida Bar, 999 F.2d 1486,1492 (11th Cir. 1993) (standing recognized where plaintiff, a candidatefor a judicial position, faced possible bar discipline for speechcritical of his opponent). A second injury-in-fact occurs when aplaintiff forgoes expression in order to avoid a sanction or penalty. "Insuch situations, the vice of the [challenged] statute is its pull towardself-censorship." New Hampshire Right to Life, 99 F.3d at 14.

Of course, these two types of injury are interrelated. Both hinge on the existence of a credible threat that the challenged law will be enforced. If such a threat exists, then it poses a classic dilemma for an affected party: either to engage in the expressive activity, then courting prosecution, or to succumb to the threat, thus forgoing free expression. Either injury is justiciable.Id.Page 9

Whichever type of injury is asserted, the plaintiff must show more thana subjective or irrational fear that his or her speech will besanctioned. Laird v. Tatum, 408 U.S. 1, 13-14 (1972) ("Allegations of asubjective `chill' are not an adequate substitute for a claim of specificpresent objective harm or a threat of specific future harm; `the federalcourts established pursuant to Article III of the Constitution do notrender advisory opinions.'"). Nonetheless, "the evidentiary bar that mustbe met is extremely low." Mangual, 317 F.3d at 57.5

Injury-in-fact is presumed when government imposes a prior restraint onexpressive activity, although the prior restraint doctrine is appliedonly in cases involving government censorship schemes and judicial ordersprospectively banning speech.

The doctrine of prior restraint has its roots in the 16th and 17th century English system of censorship. Under that system, all printing presses and printers were licensed by the government, and nothing could lawfully be published without the prior approval of a government or church censor. See generally T. Emerson, System of Freedom of Expression 504 (1970). Beginning with Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), we expanded this doctrine to include not only licensing schemes requiring speech to be submitted to an administrative censor for prepublication review, but also injunctions against future speech issued by judges. See Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 389-390, 93 S.Ct. 2553, 2560-2561, 37 L.Ed.2d 669 (1973) ("[T]he protection against prior restraint at common law barred only a system of administrative censorship. . . . [T]he Court boldly stepped beyond this narrow doctrine in Near"). Quite obviously, however, we have never before countenanced the essentially limitless expansion of the term. . . .Alexander v. United States, 509 U.S. 544, 553 n.2 (1993).6Page 10

Finally, a fourth category of speech restriction triggers automaticstanding regardless of any showing by a plaintiff of a personal injury."It is well established that in the area of freedom of expression anoverbroad regulation may be subjected to facial review and invalidation,even though its application in the case under consideration may beconstitutionally unobjectionable." Forsyth County v. NationalistMovement, 505 U.S. 123, 129 (1992). "`[L]itigants . . . are permitted tochallenge [an overbroad] statute not because their own rights of freeexpression are violated, but because of a judicial prediction orassumption that the statute's very existence may cause others not beforethe court to refrain from constitutionally protected speech orexpression.'" Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383,392-393 (1988). See New England Regional Council of Carpenters v.Kinton, 284 F.3d 9, 18-19(1 st Cir. 2002) ("Under [this] rule,leafletters may facially challenge permit schemes despite the fact thatthey have neither applied for a permit to distribute handbills on aparticular street nor made definitive plans to do so.").

With respect to the Department's Rules and Regulations, defendants byand large limit their opposition to the alleged lack of a "present caseor controversy" giving rise to standing on plaintiffs' part. This is so,according to the Commissioner, because during his tenure "no employee hasbeen disciplined, reprimanded, or in any way accused of misconduct forviolating these [regulations]." Kinnon Aff. ¶ 15. Nor, according todefendants, is there any "immediate threat" that a plaintiff will becited for such a violation. Defendants' Opposition, at 13. Finally,defendants argue that there is no evidence that the regulations (or theCommissioner's directives) have had any chilling effect on plaintiffs'speech. If anything, defendants postulate that the regulations haveserved only to incite plaintiffs to speak louder.Page 11

That plaintiffs have standing to challenge the Department'sregulations, either because they have suffered an injury-in-fact, orbecause the regulations are in some aspects facially overbroad, wouldseem apparent. The harm to plaintiffs is not speculative or conjectural— they received written reprimands from the Commissioner forengaging in expressive conduct that was specifically banned by theregulations. While defendants make the technical point that plaintiffswere disciplined for violating the Commissioner's November 1, 2002directive (the invalidity of which defendants concede), and not theregulations per se, it is clear that the authority for the Commissioner'sdirective (requiring prior approval for the posting of political signs)was derived from the substance of sections 6, 7, and 25 of theregulations (requiring prior approval to engage in petitioning activityor to comment publicly on fires or the administration of theDepartment). It is true that plaintiffs suffered no loss of pay,benefits, or position as a result of the Commissioner's reprimands, butit can be fairly assumed that the reprimands (had they not beensuccessfully challenged), would have impacted on the plaintiffs' futureprospects for promotion or transfer to more desirable assignments.Moreover, while the Commissioner abjures any intention of enforcing theregulations in the future, it is always open to him (or his successor) tochange his mind. See Chamber of Commerce v. Fed. Elections Com'n.,69 F.3d 600, 603 (D.C. Cir. 1995).7

Even absent an injury, plaintiffs would have standing to mount achallenge to the regulations under the established rule that "in the areaof freedom of expression anPage 12overbroad regulation may be subject to facial review." Forsyth County,505 U.S. at 129. This is especially true where government seeks topromote discipline in the workplace not by taking action in response to anemployee's actual speech, but by banning all speech by all employeesbefore it happens. United States v. National Treasury Employees Union,513 U.S. 454, 468 (1995) (striking down an Ethics in Government Actprovision prohibiting federal employees from accepting compensation formaking speeches or writing articles).

The Regulations

Because defendants, other than contesting standing, have chosen not topresent a developed defense of the legality of the disputed regulations, abrief statement of settled law will suffice. That the right of publicemployees to petition political authorities over job-related grievancesis protected First Amendment activity is not open to dispute. United MineWorkers of America. Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217,222 (1967) ("We start with the premise that the rights to assemblepeaceably and to petition for a redress of grievances are among the mostprecious of the liberties safeguarded by the Bill of Rights."). Aregulation conditioning that right on obtaining the prior permission ofthe public employer is presumptively invalid. Consequently, I concludethat section 6 of the Department's Rules and Regulations does not complywith the First Amendment.

A person who undertakes government employment does not relinquish theFirst Amendment right that he or she would enjoy as a citizen to commenton matters of public interest. Pickering v. Board of Ed. of TownshipHigh School. Dist. 205. Will Cty., 391 U.S. 563, 568 (1968). Courts,while protective of an employee's right to free expression, alsorecognize that a government employer has a countervailing interest ininsuring the efficient delivery of government services and may imposerestrictions on employee speech thatPage 13interferes with that mission. Guilloty Perez v. Pierluisi, 339 F.3d 43,52-53 (1st Cir. 2003). When employee speech touches on matters of publicconcern, Pickering establishes a test intended to balance the competinginterests at stake.

First, the court must determine whether [the plaintiff] made her statements as a citizen upon matters of public concern. . . . Second, the court must weigh the strength of the employee's and the public's First Amendment interests against the government's interest in the efficient performance of the workplace. Third, if the employee's and the public's First Amendment interests outweigh a legitimate governmental interest in curbing the employee's speech, [the plaintiff] must show that the protected expression was a substantial or motivating factor in an adverse employment action.Tang v. State of R.I., Dept. of Elderly Affairs, 163 F.3d 7, 12 (1stCir. 1998) (citations omitted). The public interest qualification isimportant. The Pickering test is triggered only when the employee speaks"as a citizen upon matters of public concern," rather than "as anemployee upon matters only of personal interest." Connick v. Myers,461 U.S. 138, 147 (1983). Thus, speech that is limited to complaintsabout one's status in the workplace or the habits and practices of asupervisor "may give rise to discipline without imposing any specialburden of justification on the government employer." National Treasury,513 U.S. at 466.8Page 14

Defendants, to be fair, do not entirely concede the point. Observingthat the dispute over staffing has its roots in an acrimonious collectivebargaining relationship between the Union and the City, defendants makethe passing argument that a dispute of fact exists as to whetherplaintiffs "expressed themselves as employees, in support of their laborunion's position, and not as citizens, addressing a matter of publicconcern." Defendants' Opposition, at 12. This argument, which hasplausibility, is directed at the plaintiffs' motive for speaking. While itwould be naive to assume that concern over overtime pay and jobs playedno role in shaping plaintiffs' position on the staffing issue, theirspeech was directed to the impact of the reduction in manning levels onpublic safety. The threat of terrorism aside, one would be hard pressed toimagine a topic of greater public concern than fire safety and thecapacity of a municipal fire department to respond to emergencies.Indeed, the First Circuit has held that "commentary on the available fireprotection within the [community] and [local government] actions indealing with related problems is a prototypical matter of publicconcern." Brasslett v. Cota, 761 F.2d 827, 844 n.14 (1st Cir. 1985).Whether the plaintiffs' motive in raising the staffing issue wasaltruistic, as they contend, or selfish, as the defendants maintain, issomewhat beside the point. The First Amendment is concerned with speech,not the motivation of the speaker.9Page 15

Defendants make a second argument, that "given the paramilitary natureof a [f]ire [d]epartment, the Maiden Fire Department has a greaterinterest than other public employers in regulating speech." Defendants'Opposition, at 12. As a general proposition this is true. Courts havetraditionally given greater deference to police agencies and firedepartments in scrutinizing restrictions on speech than to othergovernment employers.

The importance of discipline, maintenance of harmony among co-workers, and close working relationships requiring personal loyalty and confidence is greater in the context of a law enforcement agency . . . than it might be in another type of government agency. See Conaway, 853 F.2d at 798 (comparing a police department to a building inspection agency); See also Oladeinde v. City of Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000) (recognizing the "heightened need for order, loyalty, morale and harmony" in a police department); Moore, 57 F.3d at 934 (same). Therefore, courts must be sensitive to the needs of law enforcement agencies in disciplining an employee whose expressive conduct interferes with these interests.Guilotty Perez, 339 F.3d at 53-54. These concerns, however, are morerelevant to discipline in the workplace than they are to plaintiffs'expressive activities when off the job. Defendants have offered noevidence that plaintiffs' public speech has had a detrimental effect ondepartmental morale or discipline. Mayor Howard, Commissioner Kinnon, andformer Fire Chief LaFrenier testified candidly at their depositions thatthey have no concrete evidence that plaintiffs' conduct (to date) has hada deleterious effect on the operations of the Department.10

Thus, I conclude that section 7 of the Department's Rules andRegulations (requiring prior approval of any public comment regarding theplans, policies, or administration of the Department) and section 25(forbidding unauthorized comment on fires or DepartmentPage 16business generally), as written, cannot pass constitutional muster.11I have a different view of section 37, which requires a firefightersummoned to testify before a court or investigating agency to notify theDepartment of the subpoena. Department officials have a legitimateinterest in monitoring public scrutiny of departmental affairs. Theregulation does not require the permission of fire authorities totestify, nor does it require that a firefighter disclose the nature ofthe official inquiry or the substance of any proposed testimony. Section37 consequently does not smack of a prior restraint or a restriction onspeech. It therefore does not offend the First Amendment.12

The Ban on Political Signage at the Fire Station

Plaintiffs characterize the Commissioner's April 26, 2002 directivebanning all unofficial signage from the fire station and adjacent parkinglot as an unlawful "prior restraint."13 It is settled law "that as ageneral matter peaceful picketing and leafletting arePage 17expressive activities involving `speech' protected by the FirstAmendment." United States v. Grace. 461 U.S. 171, 176 (1983). See alsoSpence v. Washington. 418 U.S. 405. 409 (1974). Extrapolating from thisproposition, plaintiffs assert an unfettered right to use the fire stationand its parking lot as a platform for their campaign against theDepartment's staffing policy and as a billboard for the Union'sgrievances against departmental policies. There is a fundamental flaw toplaintiffs' argument. Simply because speech is protected does not meanthat it is immune from regulation in whatever venue it occurs. Quite thecontrary, government may regulate expressive conduct that is incompatiblewith the uses to which public property is dedicated. In appropriatecircumstances, such regulation may include a total ban on expression.See United States v. Kokinda. 497 U.S. 720, 725 (1990) (upholding ablanket ban on solicitation by advocacy groups on post office grounds).In Kokinda, a plurality of the Court reaffirmed the tripartite "forumanalysis" set out in Perry Education Ass'n v. Perry Local Educator'sAss'n, 460 U.S. 37, 45-47 (1983). Under Perry, regulations affectingspeech on government property that has been traditionally devoted toexpressive activity, or on property, which although not traditionallyopen for assembly and debate has been designated for these purposes bygovernment, is subject to the strictest of scrutiny. Id., at 45.However,

[p]ublic property which is not by tradition or designation a forum for public communication is governed by different standards. We have recognized that the "First Amendment does not guarantee access to property simply because it is owned or controlled by the government." United States Postal Service v. Greenburgh Civic Ass'n., supra, 453 U.S., at 129. In addition to time,Page 18 place, and manner regulations, the State may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view. Id., 453 U.S., at 131, n. 7. As we have stated on several occasions, "`"[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated."'" Id., at 129-130, quoting Greer v. Spock, 424 U.S. 828, 836 (1976), in turn quoting Adderley v. Florida, 385 U.S. 39, 48(1966).

Perry, 460 U.S. at 46.

Whether property has status as a "public forum" is defined by its"objective characteristics." International Soc. for KrishnaConsciousness. Inc. v. Lee, 505 U.S. 672, 698 (1992) (Kennedy, J.,concurring).

If the objective, physical characteristics of the property at issue and the actual public access and uses that have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses, the property is a public forum. The most important considerations in this analysis are whether the property shares physical similarities with more traditional public forums, whether the government has permitted or acquiesced in broad public access to the property, and whether expressive activity would tend to interfere in a significant way with the uses to which the government has as a factual matter dedicated the property.Id., at 698-699.

Traditional public fora include parks, public streets, most sidewalks,and public grounds. See Cox v. State of Louisiana, 379 U.S. 536, 549-550(1965) (street adjacent to courthouse); Edwards v. South Carolina,372 U.S. 229, 236-238 (1963) (state capitol grounds): United States v.Grace. 461 U.S. 171, 183-184 (sidewalks adjoining the Supreme Court);Loper v. New York City Police Department. 999 F.2d 699, 705-706 (2d Cir.1993) (city sidewalks). Non-public fora include military installations,post office grounds, the corridors of public office buildings, publicparking lots, airport terminals and other transit facilities. See Greerv. Spock, 424 U.S. 828, 838 (1976) (streets and sidewalks of a militaryPage 19base); Kokinda, 497 U.S. at 727 (sidewalk serving a post office);Markowitz v. United States, 598 A.2d 398, 404 (D.C. 1991) (corridors ofthe U.S. Capitol); Sentinel Communications Co. v. Watts, 936 F.2d 1189,1204-1205 (11th Cir. 1991) (interstate rest stops); KrishnaConsciousness, 505 U.S. at 683 (airport terminals); Young v. New YorkCity Transit Authority, 903 F.2d 146, 161-162 (2d Cir. 1990) (municipalsubway systems); Grattan v. Bd. of School Commissioners of BaltimoreCity, 805 F.2d 1160, 1162-1163 (4th Cir. 1986) (public school parkinglots).

It cannot seriously be disputed that a fire station falls into thecategory of a non-public forum. It shares none of the indicia defining atraditional public forum: it offers no historical right of public accessfor the conduct of expressive activity — indeed such activity wouldinterfere with the functions to which the station is dedicated and wouldthreaten the safety of not only those using the property for expressivepurposes, but also the safety of a public dependent on the undistractedresponse of fire personnel during an emergency. That being so, anyrestriction on expressive activity in and on the station's property, upto and including an absolute prohibition, "need only satisfy arequirement of reasonableness. We reiterate what we stated in Kokinda:The restriction `need only be reasonable; it need not be the mostreasonable or the only reasonable limitation.'" Krishna Consciousness.505 U.S. at 683.

Defendants' prohibition of expressive activity in the fire station andon its parking lot passes any reasonableness test. As defendantspersuasively frame the issue, "[t]he transformation of the workplace intoa [floating] billboard for the Union is not a reasonable `manner, timeand place' for employee speech." Defendants' Preliminary InjunctionOpposition, at 12. The display of provocative signs on station premisesquestioning thePage 20integrity of the policy determinations of the Department's leadership hasthe potential to undermine firefighters' loyalty, discipline, andmorale. See Greer, 424 U.S. at 840. While it is true that defendants havenot pointed to specific instances in which firefighting functions have asyet been impaired by plaintiffs' expressive conduct, the Department doesnot have "to allow events to unfold to the extent that the disruption ofthe office and the destruction of working relationships is manifestbefore taking action." Connick, 461 U.S. at 152. Because the ban onexpressive activity on fire department grounds is consistent with theDepartment's legitimate interest in "preserv[ing] the property . . . forthe use to which it is lawfully dedicated," Postal Service v. Council ofGreenburgh Civic Assns., 453 U.S. 114, 129-130 (1981), the ban islawful.14

The Disciplinary Actions

Where a government employee meets his burden of showing that his speechor expressive conduct outweighs any governmental interest in itssuppression, he must still show that the protected activity was asubstantial or motivating factor influencing an adverse employmentaction. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).Page 21

The Mt. Healthy causation test is a burden-shifting test. If the plaintiff succeeds in establishing this causal relationship, the burden of persuasion shifts to the defendants to prove "by a preponderance of the evidence," id., that the adverse employment action would have been taken "even in the absence of the protected conduct," Mt. Healthy, 429 U.S. at 287.Guilloty Perez, 339 F.3d at 55-56. The disciplinary actions taken by theDepartment fall into three categories. Plaintiffs Yoshizumi, Buckley,Feran, Varzakis, and Parow received written reprimands for parking theirvehicles with posted signs protesting the staffing reduction in thestation parking lot or on nearby streets. The reprimands were issuedpursuant to the Commissioner's admittedly unconstitutional November 1,2002 directive. Plaintiff Yoshizumi alleges that in January of 2003 hewas subjected to a disciplinary transfer because of the sign-postingincident. Plaintiff Parow was reprimanded and briefly transferred inAugust of 2002 for making comments to a local newspaper regarding thestaffing issue and a recent fire. The reasons for these latter twodisciplinary actions are a matter of factual dispute that cannot beresolved on summary judgment.15 It is, however, undisputed that noplaintiff suffered a loss of pay, position, or with the possible exceptionof plaintiff Yoshizumi, incurred any financial penalty as a result of thedisciplinary actions taken by the Department. But see Carev v. Piphus,435 U.S. 247, 266-267 (1978).16

ORDERPage 22

For the forgoing reasons, it is ADJUDGED and DECLARED that: (1) section6 of the Department's Rules and Regulations violates the FirstAmendment; (2) sections 7 and 25 of the Rules and Regulations violate theFirst Amendment as written; (3) section 37 of the Rules and Regulationsdoes not violate the First Amendment; and (4) the April 26, 2002directive of the Commissioner banning all signs of an advocacy naturefrom fire station premises is a valid exercise of governmental authoritythat does not offend the First Amendment. The motion of plaintiffsYoshizumi, Buckley, Feran, Varzakis, and Parow for summary judgment ontheir First Amendment injury claims relating to the November 2002 writtenreprimands is ALLOWED. The motion of plaintiffs Yoshizumi and Parow forsummary judgment on their First Amendment injury claims regarding theJanuary 2003 transfer and the August 2002 reprimand and transfer isDENIED. These matters will be set for trial. The claims of plaintiffsSullivan and Carroll are DISMISSED. Plaintiffs' motion for summaryjudgment and a permanent injunction barring defendants from enforcing theCommissioner's November 1, 2002 directive is MOOT in light of thedefendants' concession that the directive is unconstitutional. Trial onall outstanding issues will be set by the Clerk to commence at 9:00 a.m.on March 15, 2004.

SO ORDERED.

1. According to City officials, overtime expenditures in the FireDepartment had risen from $225,000 in fiscal year 1997 to over $300,000during the first half of the 2002 fiscal year.

2. The deputy aide is responsible for operating infrared equipmentused at a fire scene to detect heat sources.

3. In its entirety, the court's November 26, 2002 Order reads asfollows: After a hearing held this day, the court grants the motion for a preliminary injunction in part. The City of Maiden and the defendant Commissioner and Mayor are hereby ORDERED to withdraw the final paragraph of the Commissioner's November 1, 2002 Memorandum prohibiting the display on fire station property of any non-preapproved sign protesting municipal staffing levels and budgetary decisions. This ORDER is entered without prejudice to the City's right to ban all signage of an advocacy nature from fire station property without discrimination as to its contents. Defendants are further ENJOINED from instituting any disciplinary action based on the alleged violation of the unauthorized signage provision of the November 1, 2002 Memorandum or instituting any disciplinary action based on a firefighter's off-duty exercise of his or her First Amendment right to free expression on issues of public concern, including fire department staffing levels and budgetary decisions. Defendants are further DIRECTED to rescind any disciplinary action taken to date based on the alleged violation of the unauthorized signage provision of the November 1, 2002 Memorandum. Upon the parties' completion of discovery, the court will hear argument as to the constitutionality of Chapter 5, §§ 6, 7, 25 and 37 of the Maiden Fire Department's Rules and Regulations.

4. The Department has abstained from enforcing this directive duringthe pendency of the litigation. Defendants' Opposition, at 14 n.3.

5. Professor Tribe notes that the standing barrier imposed by Laird's"subjective threat" rule has been since treated by the Supreme Court asnon-controlling dicta. 1 L.H. Tribe, American Constitutional Law, 413& n.89 (3d ed. 2000).

6. Not all government permitting schemes, it should be noted, fallunder the doctrine. See Thomas v. Chicago Park Dist., 534 U.S. 316,322-323 (2002).

7. The extent to which the plaintiffs were "chilled" in the exerciseof their right to free speech may be a matter of debate. There is,however, some suggestion in the record that other firefighters wereintimidated from giving vocal support to the Union's position on thechange in the staffing policy.

8. Plaintiffs argue that National Treasury supplants Pickering with anewly defined "heightened burden" test that applies when a governmentalrestriction on speech takes the form of a prior restraint. I think thisreads too much into Justice Stevens' observation in National Treasurythat "the Government's burden is greater with respect to this statutoryrestriction on expression than with respect to an isolated disciplinaryaction." National Treasury, 513 U.S. at 468. Justice Steven's point wasthat where a statutory ban on speech affects a broad class of present andfuture employees, the usual presumption of validity accorded to acongressional judgment does not apply. Thus, the government's burden ofjustifying the congressional ban that figured in National Treasury washeavier than in the typical Pickering case where the prior speech of asingle employee is at issue. Justice O'Connor makes clear in herconcurring and dissenting opinion that "[t]he time-tested Pickeringbalance . . . provides the governing framework for analysis of all mannerof restrictions on speech by the government as employer." Id. at 480.(O'Connor, J., concurring in judgment, dissenting in part). Whileacknowledging the "meaningful distinction" drawn by Justice Stevensbetween ex ante prohibitions and ex post punishments of discreteinstances of misconduct, according to Justice O'Connor, "reliance on theex ante/ex post distinction is not a substitute for the case-by-caseapplication of Pickerinq." Id. at 481.

9. There is no contention that any of the plaintiffs were confidentialemployees whose speech on internal departmental matters might have beenpermissibly restricted as a result. See Flynn v. City of Boston,140 F.3d 42, 47 (1st Cir. 1998).

10. If anything, the public statements attributed to plaintiffsregarding the staffing dispute are on the mild end of the spectrum thatthe court has encountered in similar cases arising in a collectivebargaining context.

11. This is not to say that defendants are prohibited from imposingany restrictions whatsoever on firefighters' public speech. Asplaintiffs' counsel conceded at oral argument, regulations prohibiting afirefighter from disclosing confidential information relating to a fireinvestigation or litigation involving the Department, or requiringfirefighters exercising their right to public speech to make clear thatthey are speaking in their private capacities, would be lawful andappropriate.

12. I do not address the November 1, 2002 directive. Defendants haveconceded that the directive is unconstitutional and unenforceable and theissue is therefore moot. "[A] case is moot when the issues presented areno longer `live' or the parties lack a legally cognizable interest in theoutcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). This case doesnot fall within the mootness exception of City of Mesquite v. Aladdin'sCastle. Inc., 455 U.S. 283, 289 & n.10 (1982). The defendants havelitigated in good faith throughout and there is no "reasonableexpectation that the challenged conduct will be repeated followingdismissal of the case." D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 55(1st Cir. 1999).

13. On April 26, 2002, Commissioner Kinnon issued a memorandum tothen Fire Chief LaFrenier directing that no signs were to be displayed onFire Department or City property that were not official in nature. It isthis directive that the City now seeks permission to enforce. The banalso extends to the "red zone" in front of the station. The "red zone" isa restricted parking area intended to insure unhindered access to thestation by fire apparatus. I do not understand plaintiffs to object tothe ban on parking their personal vehicles at the entrance to the firestation.

14. Plaintiffs, relying principally on Goodman v. City of KansasCity, Missouri, 906 F. Supp. 537 (W.D. Mo. 1995), maintain that theDepartment cannot constitutionally extend the ban on advocacy signage tobumper stickers affixed to their personal vehicles parked in the stationlot. Cf. Silva v. Worden, 130 F.3d 26, 32 (1st Cir. 1997) (declining toreach the question of whether a flat ban on political signs and bumperstickers on vehicles parked in a municipal employees' parking lot wouldbe unconstitutional). The issue need not be decided as defendants statein their Opposition, at 8, that the Commissioner's directive does notapply to bumper stickers on vehicles so parked, or to signs carried onpersonal vehicles legally parked on streets adjacent to the fire station.This interpretation of the directive is binding on the defendants.Levinsky's, Inc. v. Wal-Mart Stores. Inc., 127 F.3d 122, 134 (1st Cir.1997) (a clear and unambiguous admission of counsel during summation isbinding on client).

15. No claim is made in the summary judgment pleadings that plaintiffsSullivan and Carroll suffered any adverse consequences as a result of thechallenged directive and regulations. (In the Amended Complaint it isalleged that they objected to imposing discipline on other of theplaintiffs for violating departmental policies). Consequently, they willbe dismissed from the case.

16. I strongly recommend that plaintiffs reconsider the demand forpunitive damages advanced in their Amended Complaint. See Newport v. FactConcerts. Inc., 453 U.S. 247, 271 (1981).Page 1

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