WATTS v. SEWARD SCHOOL BOARD

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Argument of George Kaufmann

Chief Justice Earl Warren: Number 325; James A. Watts Et Al., Petitioners, versus Seward School Board, Et Al.

Mr. Kaufmann?

Mr. George Kaufmann: Mr. Chief Justice, May it please the Court.

This case is here on writ of certiorari to the Supreme Court of Alaska which have found the dismissal of petitioners as teachers in the public schools of Seward, Alaska.

Both petitioners were active and a group of teachers who opposed policy of the school board and of its superintendent Mr. Fibricious (ph).

In March 1960, the school board notified petitioners that their contracts would not be renewed and advised them of their rights under the Teacher Tenure Law to a hearing and of the charges against it.

After petitioners discharge was sustained within the state school system, they brought suit in the state courts to obtain judicial review of this determination.

After a lengthy litigation which included a summary reversal in this Court, the Supreme Court of Alaska on December 7, 1966 by 2:1 vote rendered the judgment now under review.

The Court held that both petitioners were properly discharged because in May 1959 they prepared and circulated to the public what was called an open letter to the Seward School Board.

This letter was signed by the Seward local of the American Federation of Teachers, of which petitioner Blue was President and petitioner Watts was Secretary.

The letter as reprinted is in appendix in the petitioner’s brief.

It starts up by saying that it was the union’s way of informing the school board and the public and I quote, “Of our stand in the current struggle for a good school.

We hold the incidents occurring during the last year have reached such proportions as to be definitely detrimental to morale of our teaching staff and the effectiveness of our educational system.”

The letter then recited some of these incidents, most of which cited around the school Superintendent.

Impairment of job security was the main theme of the letter.

The Superintendent had repeatedly threatened teachers with the loss of jobs and some teachers had already lost their jobs.

The letter objected also that the administration created tension and friction in the school, teachers had been subjected to undignified treatment, the Fire regulations had been disregarded and discussed some other matters of perhaps less important.

The union explained in its letter that the teachers had sought to resolve these problems privately, but that the school board had refused to meet with them.

The letter therefore requested an immediate public meeting with the school board at which the union would press for substantial improvements and administrative policies and set forth certain specific demands.

At the hearing on their dismissal both petitioners testified that they had prepared the open letter because all other avenues of recourse within the school system had been blocked.

They felt the need to inform and solicit the support of the electorate to which the school board and the teachers were ultimately responsible.

Now the discharge of petitioner Blue rests exclusively on his part in publishing this open letter to which I have referred.

But the Supreme Court of Alaska held against Watts for an additional reason.

The Court accepted a finding by the school board that Watts had met with two teachers Mr. and Mrs. (Inaudible) and now I quote the finding, “Ask them if they would go along with the group”, of which Watts was a representative whose purpose was to oust the Superintendent of Schools.

The statutory basis for the Court’s ruling that Watts was subject to discharge for this conversation, was that this was immorality within the meaning of the Alaskan tenure statute.

The Court construed immorality as including all conduct from the commission of the most highness felony down the scale of infamy to social misbehavior.

And to this definition the distribution of the open letter was also found to be immoral conduct.

But the Court ruled further that the distribution of the open letter also violated a school board regulation which described the procedure for processing grievances.

It is our position that it is authoritatively construed by the Supreme Court of Alaska, both the immorality provision of the statute and the regulation on which petitioner’s discharge is based were both hopelessly and unconstitutionally vague and that they were also unconstitutionally over broad.

We contend further that petitioner’s discharge violates the First Amendment.

A circular or open letter which discusses and criticizes the administration of the public schools contributes to debate on public issues.

Its publication is the exercise of Freedom of Speech guaranteed by the First Amendment.

An invitation to join a group was subjective as the oust of a public official is of the essence of the First Amendment Freedom of Association.

The central question presented by this case therefore is whether petitioners maybe discharged for the exercise of these First Amendment Rights because the public officials who were involved were their own superiors within the school system.

The decisions of this Court make it clear that these First Amendment Rights do not exist for the sole benefit of those who exercise it.

They are essential to the wellbeing of a democratic society.

The public schools are not the exclusive domain of the school boards and school superintendents, they affect the entire community and are properly a subject of continuing public concern.

We stress this point obvious though it is because the Court below and respondents in its brief have treated this case as it were simply a contest between these petitioners and the school board.

We think that even on this narrow view, petitioners would be entitled to prevail, because this Court has now discredited the document, that public employees maybe forced to abandon either their jobs or their constitutional rights.

But the decision below is erroneous for the more fundamental reason that it fails to take into account the strong public interest in the availability of information regarding the public schools.

In New York Times against Sullivan this Court sharply circumscribed the permissible scope of liable actions brought by public officials against their critics.

The basis of this decisions, we understand was that the fear of damage of wards would cause even good faith critics to withhold their criticism and would thereby deafen the vigor of public debate, contrary to the central policy in the First Amendment.

And we submit self censorship by public employees because they feel the loss of their jobs is equally destructive of the values inherent in the First Amendment.

Mr. Blue had taught at the Public Schools of Alaska for 15 years before he was discharged.

Mr. Watts had taught for eight years.

With their example, before that no teachers would have the temerity to risk the same fate by voicing any public objection to the actions of the school.

To affirm the judgment below would not only penalize petitioners for the exercise of their First Amendment rights, it would cut off from the multitude of times a discussion of issues affecting the public schools, teachers who have a particular information, insight and training which can make -- which enables them to make a substantial and unique contribution to their discussion.

Now for these reasons, we submit that the laws, the discharge of these petitioners would substantially interfere with the objectives of First Amendment.

But we recognize also that this Court has refused to give dogmatic approval to every exercise of First Amendment rights regardless of its consequences.

And we therefore do not contend that public employee may never be disciplined where his exercise of First Amendment rights is directed against his own superior.

That is we can envision that some situation would arise in which the kind of activities which involve in this case might have such a serious impact on the morale and discipline of the public school system or with regard to other public employees, to the administration of government generally, that there would be the kind of an overriding public interest, which might justify the subordination of the First Amendment.

But the principle that this Court has established is that the First Amendment right is entitled to prevail, unless the state can show a subordinating interest which is compelling.

And the formulation that we think is particularly analogous to this case is that Wood against Georgia.

In Wood, it was decided that public criticism of the judge maybe punish this contemptuous only if the Court can show and I quote in Your Honor’s opinion, “A substantive evil actually designed to impede the courts of justice”.

Now we submit that where the claim is made, as it is by respondents in this case that the First Amendment right should be held before in the interest of the administration, some other branch of government than the administration of justice by the Courts the same formulation should be applied.

And we submit that the school board has not come close to showing that petitioners created a substantive evil actually designed to interfere with the operation of the schools, or has it demonstrated to injury to any other legitimate overriding interest?

I would invite Your Honor’s attention to page 66 of the Appendix, which is reprinted in the footnote of page 38 of our brief, where the Court below described what it considered to be the interest that would justify the discharge of petitioners for circulating the open letter, here is what the Court said.

The overall binding effect of the widespread circulation of the false statements and the highhanded method employed to seek redress and disregard of established procedures could only result in a loss of respect by the public for appellants and the teaching profession in general, when all of the facts became known and was immoral conduct within the meaning of that term as it was then defined by the statute.

Justice Potter Stewart: Mr. Kaufmann there's a copy of the open letter in the record somewhere.

Mr. George Kaufmann: Sir, the open letter is reprinted at Page 1A of our appendix.

It’s also -- it’s the appendix of our Blue Brief and it’s also reprinted in the court’s opinion in full.

Justice Potter Stewart: Right thank you.

Mr. George Kaufmann: Now, I say as if the Court -- as it was then defined by statute because after the Supreme Court of Alaska’s first step decision in this case, the Supreme Court of Alaska that the legislature of Alaska thought so ill of that interpretation that they changed the law and that was why the case was originally reversed by this Court to give the Supreme of Alaska a chance to decide whether to give retroactive effect to that new legislation, of course the Supreme Court of Alaska preferred not to give it retroactive effect when that argument was heard.

Justice Potter Stewart: Mr. Kaufmann what’s the reference to false Statement?

Mr. George Kaufmann: There is a finding by the school, in the findings which are appendix B to our brief, in which they make a finding that there was -- that six of the statements in the open letter were false.

It’s said in respondent’s brief that all but one of the statements was false, I think that was just an oversight.

We urge in an appendix to our reply brief, the green brief, that as a matter of fact these statements were not false, but some of them were mere expressions of opinion, that to some extent the Court had -- the school board simply misinterpreted the letter, but it’s our basic position that the principle of the New York Times -- of the New York Times case, that truth is not the test and the petitioner’s testified and it’s pages at 190 and 219 of the record and it’s reprinted in the footnote of page 31 of our brief and it is not challenged here, the petitioners testified that they believed in good faith that everything that was said in that open letter was true.

We believe that the same test that the New York Times case is applicable here because if under these conditions and I think the same thing is involved in the next case, the school board can make a determination that the statements are false, you are going to cut it off the debate the same way --

Justice Byron R. White: Well Mr. Kaufmann do you think the school board though is entitled to set up procedures so that accurate information is the information that will be circulated?

Mr. George Kaufmann: Yes.

We think Your Honor that there are situations in which a procedure could be established, which would make available to the public accurate information.

But that’s not involved in this case.

Justice Byron R. White: What about the suggestion that apparently the Alaska Supreme Court said one of the reasons for the discharge is the violation of the rule that you are supposed to -- if have any complaints or objections the ways the school is being run taking up administratively first?

Mr. George Kaufmann: Yes, sir, we think --

Justice Byron R. White: And if they had been here and if they had done here perhaps there wouldn’t been misinformation get out to the public.

Mr. George Kaufmann: No sir, it’s not true and in fact it is not true, because these are matters which the record shows are matters which actually had been discussed with the school board.

They are matters which had been to called to the superintendent --

Justice Byron R. White: Yes, but didn’t the Alaska Supreme Court base its ruling partly on the Fegard (ph).

Mr. George Kaufmann: Oh yes sir.

The Supreme Court of Alaska did base its decision on the regulation and let me address myself to that now.

It is our position first that the application of that regulation is itself in violation of the First Amendment because it creates in effect a prior censorship.

What it is, is a situation in which the public official who is being criticized is saying to the respective critic, we will decide when you can go to the public and we believe that the interest of the public in having the information is superior to allowing any public official in the normal situation unless there is a particular reason for giving this opportunity.

Now the only kind of case that we can envision in which there would be a justification for this kind of a regulation is that in order to allow these matters actually be discussed and to be worked out on an internal level before going to the public, we think that it maybe that this kind of a regulation would be justified.

Now the facts in this case are that in the first place there were no clear regulations.

We have reprinted as appendix C of our opening brief, two regulations both of which deal with the subject of the grievance procedure.

But we take the position that they are hopelessly inconsistent, the dissenting judge at pages 102 of the Appendix took the same position, the superintendent who testified as to their meaning was unable to explain.

Now we think the least that’s necessary if the purpose of this kind of a regulation is to be accomplished is that the people know, not only the school board and the teachers, everybody know that this is what you do and then we’ll talk about it and then after that you can go to the public. Now there is nothing of that in this case.

The facts are quite the contrary.

The whole history of this litigation and the whole history preceding the litigation was --

Justice Byron R. White: But we just have to offset -- you just want us to disagree with the Alaska Supreme Court.

Mr. George Kaufmann: Oh, we don’t -- we are not asking -- no sir we are not asking you to reverse the finding, we are not asking you --

Justice Byron R. White: But the Alaska Supreme Court says there was a violation of this rule, you say there wasn’t.

Mr. George Kaufmann: No sir, no sir it’s not our position.

Justice Byron R. White: Well, (Voice Overlap) you just decided.

Mr. George Kaufmann: No sir, it’s not our position.

Our position is that the application of the rule in this situation is unconstitutional because it does not override the First Amendment interest in having this information known to the public--

Justice Byron R. White: So it’s a clear cut regulation, it’s just an invalid one.

Mr. George Kaufmann: That is correct.

The second reason is that the regulation is invalid on its face because on grounds of vagueness and that is not only because of its comparison between -- with the other regulation but also because there’s nothing in that regulation that says anything about not going to the public.

There is nothing in that regulation that says anything about going to the public, it does not give notice to these people that before they can talk to the public, they must take certain steps.

Justice Potter Stewart: You mean this says only if you have anything you want to take up with the board this is the way you do it, that’s all it says.

Mr. George Kaufmann: We think this is like Republic Steel against Maddox.

Justice Potter Stewart: No, but that’s what you’re saying isn’t it?

That this regulation whether you take E7 or E9.

Mr. George Kaufmann: That’s right.

Justice Potter Stewart: Deals nothing with except if you want to go to the board this is the way you do it.

Mr. George Kaufmann: Exactly sir, that’s exactly right.

Justice Potter Stewart: If you don’t want to go to the board, this regulation has nothing whatever to do with it.

Mr. George Kaufmann: That’s right and furthermore, but there’s another aspect of this and that is that this regulation was never applied in practice.

Because the record in this case shows that as a matter of fact there had been some discussions, there had been letters directly from the union to the school board exactly under the same circumstances as this open letter except for the fact that the open letter was to the public. So that simply was the objective of the --

Justice Potter Stewart: Was it to the public or was it addressed to the board?

Mr. George Kaufmann: It was addressed to the public and it was called --

Justice Potter Stewart: Well the way it reads.

Mr. George Kaufmann: It was -- I mean, excuse me, I misspoke.

Justice Potter Stewart: Just a minute, I can read it here.

It says an open letter to the school board.

Mr. George Kaufmann: That’s right, I’m misspoke.

Justice Potter Stewart: Are you saying that’s not addressed to the board?

Is that right?

Mr. George Kaufmann: No, no, I’m not suggesting, I'm suggesting -- it was all -- it also went to the -- it also went to the public.

Justice Potter Stewart: Of course it went there but not in the public.

Mr. George Kaufmann: I’m saying -- no what I was saying sir, is that there were previous letters from this union, from the teachers, which were actual letters to the school board in which it was never suggested that -- which the denied power for the superintendent and which it was never suggested that these were violations of the regulation, and that the only difference between those letters and this letter is that this one was also distributed to the public.

And if you read the record in this case this is what they’re complaining about.

At one point counsel for the response and you had the audacity to take this to the public.

Justice Byron R. White: So you think it’s been waived then the regulation? Perfectly clear regulation but it has been waived --

Mr. George Kaufmann: What?

Justice Byron R. White: Perfectly clear regulation, but it has been waived.

Mr. George Kaufmann: No sir, I think it’s not -- I think it’s a regulation that is vague on it’s face that if it’s not vague that there was an entrapment by the whole practice and further more that there is simply not a right under the First Amendment for one group of public officials to say you can’t go to the public and criticize us without checking with us.

Justice Potter Stewart: Tell me Mr. Kauffman did the Alaska Supreme Court say whether they believe this was a letter to the school board or letter to public, what did they say?

Mr. George Kaufmann: Well, I think they said it was letter to the school board, I misspoke it -- I was not suggesting that this was not a letter, but it’s just a terminology.

Justice Potter Stewart: Your argument that the regulation doesn’t apply.

Mr. George Kaufmann: Yes sir.

Justice Potter Stewart: Is that you can’t read this as a letter of the school board, that is a communication to which the regulation would apply, you’ve got to read this as a communication to the general public even though it says local and school.

Mr. George Kaufmann: Sir, my suggestion is that the gravamen of the offenses this case was tried was that this people distributed it to the public, that that was really what they were being tried for and that also this is the interests that’s involved here and that therefore the regulation was not applicable.

Justice Potter Stewart: Well why isn’t that saying then, you say and we should read this as an open letter, even though it says open letter to the school board, it’s really a letter to the public that’s why you said open, is that right?

Mr. George Kaufmann: It certainly was a communication to the public.

Justice Abe Fortas: Well, in effect this was request to the school board or demand for a hearing or an open hearing.

Mr. George Kaufmann: Oh it was distributed all the time --

Justice Abe Fortas: And copies according to the note of the end of it on 5 A of your brief says copies, statements in the school, so in effect it was a complaint filed with the school board and a request or a demand for a public hearing and the public was invited and sent copies of the letter --

Mr. George Kaufmann: Well no, no sir that’s not right.

That isn't always quite clear is quite clear that its objective was that after everything had failed internally was to get the support of the public and to call the attention of the electorate.

Chief Justice Earl Warren: Mr. Hayes?

Argument of George N. Hayes

Mr. George N. Hayes: Mr. Chief Justice, may it please the Court.

I would like to start by point one, point I think on which Mr. Kaufmann and I agreed and that is that we agree that the Alaska Supreme Court has defined immorality under its non retention statute as so called catch-all for conduct or as a broad form statute.

Now, perhaps the terminology of this statute is little unfortunate, but it reads as follows. These are the grounds for the non-retention.

The second cause immorality which is defined as conduct of the person tending to bring the individual concerned or the teaching profession into public disgrace or disrespect.

Now, the Supreme Court has held that that’s a catch-all type statute such as the statute which the Pennsylvania Supreme Court interpreted in Bylund, they interpreted incompetency to cover the whole range of conduct which is grounds for barring a teacher from service.

It’s like the good of the service test or the good moral character which applies in --

Justice Abe Fortas: But suppose they had called it murder.

Mr. George N. Hayes: Well, I think if they had so defined it Your Honor that wouldn’t be the question, but I think my point my here is that Mr. Kaufmann agrees that they have done this and this is binding on all parties.

Now he uses it in his over breadth argument, now we feel that it supports us because it upholds -- it’s the basis for the Supreme Court’s holding.

Justice Thurgood Marshall: Well Mr. Hayes does it conclude traffic violation?

Mr. George N. Hayes: It might Mr. Justice.

Justice Thurgood Marshall: Spitting on the side wall?

Mr. George N. Hayes: It would depend, no particular act --

Justice Thurgood Marshall: Spitting on the school sidewall. [Laughter]

Mr. George N. Hayes: It might or it might not but the point is Mr. Justice Marshall that in this type of statute where there’s a broad or it gives a broad standard, it leaves to the determination of the administration or the Court that’s administering and applying this the determination, they hold a hearing --

Justice Thurgood Marshall: They leave it up to the school board to determine as to whether or not somebody said something unfair about them, it does doesn’t it?

Mr. George N. Hayes: They might do this and this would be subject to review.

Justice Thurgood Marshall: Well, that’s what was done here, wasn’t it?

Mr. George N. Hayes: No, there was much more than that done.

Justice Thurgood Marshall: Well, who made the original findings?

Mr. George N. Hayes: The Seward School Board.

Justice Thurgood Marshall: And what was the open letter addressed to?

Mr. George N. Hayes: To the Seward School Board.

Justice Thurgood Marshall: And who did it complain about?

Mr. George N. Hayes: It complained about the superintendent and the school board.

Justice Thurgood Marshall: And the school board.

But the school board decided that if you complain publicly about us then you are immoral.

Mr. George N. Hayes: They decided this -- this was perhaps -- you cut a lot out, but this perhaps one finding. [Laughter]

But I would like to point out that this is not the only cause and this is the least of the grounds that we rely on.

For instance, they also found and the Supreme Court in effect independently found, our Supreme Court, independently found that Mr. Watts during school hours solicited another teacher, two other teachers to join him in a movement to oust the superintendent.

Now, this is --

Justice Thurgood Marshall: Is that immoral?

Mr. George N. Hayes: It’s under this broad catch-all definition, its conduct that is not compatible with the position of Mr. Watts as a teacher, as an employee.

We submit Your Honor, this is basic to the employer-employee relationship and when you have state as employer, you have to apply a slightly different standard, it’s basic to this that the employee give his loyalty to his employer.

Now, this doesn't mean that he can’t criticize employer, he can in certain circumstances, but it's -- I don't think anyone would hold that an employee during working time solicits his fellow employees to get rid of the employer, is a competent or moral employee or that he is entitled to further service, it's as if a (Inaudible).

Justice Thurgood Marshall: Well he was perfectly moral for 15 years, wasn't he?

Mr. George N. Hayes: Well, we don't know. We don't know, I mean nothing had come up.

Justice Thurgood Marshall: He was retained for 15 years.

Mr. George N. Hayes: He was retained for 15 years.

Justice Thurgood Marshall: He didn't become immoral until he talked to somebody about superintendent.

Mr. George N. Hayes: Well, actually that's the unfortunate aspect of this word immoral but as it's been defined by statute and defined by the Alaska Supreme Court it doesn't -- it has a much broader meaning and I think it has a very acceptable meaning, it's in the same line with good cause or the good of service this kind of thing.

Justice Potter Stewart: Do you say we should consider this case as though the statute said or the regulation said that employees maybe fired if they criticize the Superintendent.

Mr. George N. Hayes: No, that's not the way it should be applied.

Justice Potter Stewart: Well how should it be then?

Mr. George N. Hayes: Well it's applied as if it--

Justice Potter Stewart: Sometimes they may and sometimes they may not.

Mr. George N. Hayes: That's right sometimes they may and sometimes may not and it depends on the circumstances of the case.

Justice Thurgood Marshall: In whose judgment?

Mr. George N. Hayes: In whose judgment, initially the school board subject to review by State Board of Education, subject to view Superior Court and the Supreme Court.

It's a situation such as in -- well let's say a bar of lawyers admission case like Schware or (Inaudible).

Now here you have a standard, the person has got to be of good moral conduct, a good moral character and in some cases this Court finds that -- well in many states it's the bar association that conducts initial investigation and hearing and if they -- and on the facts as presented to them, they find whether certain facts would constitute good character, now this is subject to review, all the way to this Court in appropriate cases.

And this court may find as it did in Schware that the conduct of the applicant for admission to the New Mexico bar which had been found to be immoral, in effect, it was a poor character could not stand.

Justice Byron R. White: What on these facts that made it improper for the teachers to criticize the Superintendent to the public?

Mr. George N. Hayes: Well I think we got to separate out three distinct things here Mr. Justice White.

They were -- one issue and this is the one that Mr. Kaufmann has stressed is the circulation of a false -- of a letter to the School Board and the public which contained false statement.

Justice Byron R. White: Well let's assume all the statements have been true in this case, you would still be taking the same position won't you?

Mr. George N. Hayes: Well but that ground would then be dropped, then we'll be back to just the other two --

Justice Byron R. White: What are they?

Mr. George N. Hayes: One is that it violates a reasonable legitimate regulation of the School Board which is in fact a grievance procedure which says you got to submit your complaints first to the Superintendent and then to the School Board.

And incidentally on that point--

Justice Byron R. White: And what's the other one?

Mr. George N. Hayes: And the other one is the –- it applies just to Mr. Watts and that was his solicitation of other teachers during school hours to join him in a plot or to get rid of the Superintendent.

Justice Byron R. White: Now was that one of the grounds the Alaska Supreme Court --

Mr. George N. Hayes: That was one of the grounds in which the Alaska Supreme Court upheld as grounds for firing Mr. Watts, said it didn't apply to Mr. Blue, just Mr. Watts that one.

Justice Byron R. White: Just Mr. Watts that's all.

Mr. George N. Hayes: Just Mr. Watts yes.

Now on this regulation the --

Justice Byron R. White: And your only claim is on Blue, is that if the statements had been true, his only violation would have been the Seventh Violation.

Mr. George N. Hayes: Correct, correct.

Justice Byron R. White: And that he was -- and that once he took his complaint to Superintendent, and the Superintendent did nothing about it.

He went to the Superintendent and says, “Here are the grievances I have against you, I think you are doing a terrible job and this is not --” that he would then have been perfectly free to go the public with an open letter as long as the statements were true.

Mr. George N. Hayes: Yes I think so, I think so.

Justice Byron R. White: And why would he have been free to go the public, because of the First Amendment?

Mr. George N. Hayes: Yes, yes.

Justice Byron R. White: And wouldn't you think in that circumstance though that New York Times would apply?

Mr. George N. Hayes: Well it would apply to the E7 regulation.

Justice Byron R. White: Let's assume that he satisfied the E7 regulation, he went to Superintendent nothing happened and he satisfied the regulation and then he went to the public, now the only thing is that some of his statements were actually false although he believed them to be true.

Mr. George N. Hayes: Well I think the standard might or it might not, it would just be a question of whether --

Justice Byron R. White: Well that's rather critical here isn't it?

Whether --.

Mr. George N. Hayes: Well on that --

Justice Byron R. White: -- New York Times applies or it doesn't.

Mr. George N. Hayes: If you are just talking about the letter Mr. Justice White, if you are just talking about the letter, but if you are talking the E7 regulation then I don't think it applies at all.

Justice Byron R. White: Well I am not -- let's put the E7 regulation aside for the moment.

Mr. George N. Hayes: Well, I think that there maybe a difference and I think you have to consider the interest of the state involved and I think that the interest of the State as an employer is higher and more important than the interest of the State --

Justice Byron R. White: Because they are merely saying --

Mr. George N. Hayes: Merely calling it liable.

Justice Byron R. White: If you say that New York Times would apply to this case why this –- the falsity issues goes out, because there has been no finding whatsoever that there was any knowing or reckless disregard of the truth.

Because then we are brought back wholly to the E7.

Mr. George N. Hayes: Yes, I understand and I --

Justice Byron R. White: This is the only issue that remains in the case then.

Mr. George N. Hayes: With respect to Mr. Blue, not with respect to Mr. Watts.

Justice Byron R. White: That's right.

Mr. George N. Hayes: I think that, you know, I'd only this on that point, is I feel these are the points that are stronger and I prefer to argue them.

But I can say only this that where you have an employer, the State as an employer I think is a higher interest and more important interest than the State regulating liable or regulating conduct on election day such as in Mills v. Alabama where they held that editorial could not be proscribed on election day.

Justice Byron R. White: Okay --

Mr. George N. Hayes: But with respect to this regulation --

Justice Thurgood Marshall: Is your position that when you accept public employment you give up some of your constitutional rights?

Mr. George N. Hayes: No Your Honor that's no longer permissible.

Justice Thurgood Marshall: But you do give up your First Amendment rights.

Mr. George N. Hayes: No you'd not give them but you do --

Justice Thurgood Marshall: Well is the requirement that you first apply to the school board before you apply to the public not a conditioning of your First Amendment rights?

Mr. George N. Hayes: Yes, it is.

Justice Thurgood Marshall: And does that not violate the First Amendment?

Mr. George N. Hayes: No I do not think so because I believe its reasonable and its reasonable because one of the most important things about an employment relationship, perhaps the next most important thing to having an employee who doesn't try to knife you while he is at work, is to have a grievance procedure.

Justice Thurgood Marshall: We are not talking about his work, we're talking about this letter.

Mr. George N. Hayes: Yes.

Justice Thurgood Marshall: That was not done at work.

Mr. George N. Hayes: No, but I am saying the second most important thing is to have a grievance procedure that permits the employer to find out what the grievances are and to work them out with the employees before they are made public or taken higher up.

Justice Thurgood Marshall: And does that not interfere with the employee's right to speak whenever and wherever he pleases?

Mr. George N. Hayes: I suppose it does.

Justice Thurgood Marshall: And you don't believe that it's wrong for the State to limit it?

Mr. George N. Hayes: Not, not to that extent.

It's only a delaying, at the most it's only a delaying of the Right to Speak and its saying, first you have got to let us know what the problem is.

Justice Thurgood Marshall: Why, if it's just delaying why is it so essential?

Mr. George N. Hayes: Because it --

Justice Thurgood Marshall: If I understood you correctly you said that he could have filed this letter with the School Board yesterday and go out take it to the public today.

Is that not what you told Mr. Justice White?

Mr. George N. Hayes: No I don't think those are my words.

Justice Thurgood Marshall: Well didn't you say, regardless of what the School Board did he could still go to the public with it, if he first gave it to the School Board?

Mr. George N. Hayes: If he didn't get redressed, presumably if he got it redressed he wouldn't have any reason to go to the public.

Justice Thurgood Marshall: Well assuming he didn't get it redressed and he went to the public, do you say that's all right?

Mr. George N. Hayes: Well yes, after he's complied with the regulation.

Justice Thurgood Marshall: Well what is so holy about going to the School Board if eventually he can go to the public?

Mr. George N. Hayes: Because it permits them -- it permits the employer, the school system to know what the problems are that are brought to their attention and they can work them out.

Justice Thurgood Marshall: Well then -- well if it is brought to the whole public, it's brought to them too.

Mr. George N. Hayes: Well I think there is a distinction.

Justice Thurgood Marshall: What you really mean is that you expect the employee to keep it within the family.

Mr. George N. Hayes: Initially.

Otherwise it's too disruptive of the -- I mean look what the situation was here.

All of the open letters speaks about this disruption.

The witnesses speak about it, they say the whole town was in turmoil, now there maybe some disagreement about what caused this, but it did exist and it is more than likely that the reason for this was the manner in which Mr. Watts and Mr. Blue are going about this.

It's not true, well, first of all they knew that they had to submit these -- that they were supposed to under the regulation submit these to the Superintendent and the School Board.

They didn't claim that they didn't know this.

They know this, they read the regulations and they understood it.

They claimed they didn't do it because they couldn't get anywhere.

But the record shows that they had, had matter of two or three weeks before they had, had a grievance and this was that the Superintendent had said you got to get certain additional teaching credit hours.

And Mr. Watts felt he ought to have another year in which he could do it.

The Superintendent said “No,” and he said, “I'd like to take it to the School Board,” Superintendent said “Go ahead we've talk it over and you have failed.”

He took it to the school board and the school board granted him a year's extension.

The school board contrary to what's been said the school board just prior to this open letter had not refused to meet with him, they had only said that we want to defer this meeting until we have our lawyer present because at the previous meeting, the teachers had had a lawyer there and it was at that meeting that they had conceded that they were wrong and hired back four teachers and the finding here is Mr. Watts told the Frampton's fellow teachers that I am part of a group that's out to get the superintendent.

They didn't want to present grievances, they didn't want them processed, they wanted to get rid of the superintendent and I think that this is much more than just a case of a letter going to the public.

Justice Thurgood Marshall: What's wrong with the citizen wanting one to get rid of a superintendent through legal process and getting as many people as he can to join him to legally get rid of a public official?

What in the world is wrong or immoral about that?

Mr. George N. Hayes: The wrong part about it is using his employer's time to do it on.

Justice Thurgood Marshall: That's all.

Mr. George N. Hayes: That's the principle objection yes --

Justice Thurgood Marshall: No, is that all?

Mr. George N. Hayes: I am sorry.

Justice Byron R. White: Plus make a false statements.

Mr. George N. Hayes: Well, false statements yes, but he was just closing the -- he wasn't -- that wasn't included in Mr. Justice Marshall's hypothetical.

But this is -- I think this is proved in the Hatch Act case, in the -- this name escapes me now, United Public workers The Hatch Act applied only after our activities and it's assumed -- the opinion as I recall is a position in place of the courts as well, of course political activities on the job they are not tolerated anyway with or without a statute.

This just regulated conduct off the job, I think this is pretty axiomatic.

You don't engage in conduct which maybe detrimental to your employer on the job.

Justice Thurgood Marshall: Well, this is not necessarily detrimental I submit to the employer.

The employer is the city of Seward am I right?

Mr. George N. Hayes: The employer technically I think is the Seward School Board, that was the contract.

Justice Thurgood Marshall: Do you have taxes up there?

Mr. George N. Hayes: Yes rather heavy.

Justice Thurgood Marshall: Well, I mean, the superintendent is not the employer.

Mr. George N. Hayes: Well he -- it depends on how you define an employer, was that the man that pays the money or is it man that controls the work?

Now he is the employer in a sense that he controls the work and the operation of the school.

Justice Thurgood Marshall: The natural employer is the man who has the money.

Mr. George N. Hayes: Well, I think it's both.

Justice Thurgood Marshall: Well, the whole point as I understand it is and I repeat and if I am wrong you tell me, both of these people set out to find every lawful means possible to get rid of the superintendent and to correct what they considered to be inadequacies in the board and in order to do that they chose to exercise their freedom to speak and write and for doing that the board and the superintendent decided that their actions are wrong.

Is that right?

Mr. George N. Hayes: I would not so state it.

Justice Thurgood Marshall: Isn't it that due process that party involved should decide something?

Mr. George N. Hayes: No, that is not an issue in this case Mr. Justice Marshall.

I don't think --

Justice Thurgood Marshall: Was there anything in that letter that didn't apply to either the school board or the superintendent?

Mr. George N. Hayes: Well, I'd like to, if I might on this.

Justice Thurgood Marshall: Yeah, I don't I think understand.

Mr. George N. Hayes: Well on this other point you say that isn't -- not due process to have the same board decide -- have the employer in fact decide initially what the facts are, I submit that it's not, this is -- it may depend on the type of review you have, but here you have, in effect you have a de novo review by the Alaska Supreme Court, they ordered to hold record.

They made in effect revised findings, they completely and thoroughly went through the whole thing and I submit that that's -- if there was an issue and I say it is not, it hasn't been raised in this case, it hasn't in the following a case, (Inaudible) case, but if it had been that's not the case, there are adequate safeguards here and it's not in the case.

Chief Justice Earl Warren: Where do we find the regulations that prescribe grievance procedure?

Mr. George N. Hayes: The regulations are -- the pertinent portions are printed in the appendix to the petitioner's brief page 14 a and 15 a of the -- of his opening brief.

Chief Justice Earl Warren: Those are same ones that are on page 14 a and 15 a and now did they do that, do they say that there must be such a grievance procedure before one can go to the public?

They're very short, one says grievance complaints and communications from employees shall be submitted to the board through the superintendent.

Any employee or a group of employees may at any time appeal to the board.

Now suppose they don't care to do that, what is that they say they must?

Mr. George N. Hayes: I don't believe it does Your Honor, it says -- what it does say is that they must go to and through the superintendent and this is what they fail to do.

Chief Justice Earl Warren: If they want to make a grievance through the board, but it doesn't say that anything that a person wants to complain about, that they must go to the board before they can take it to the public.

Mr. George N. Hayes: But if they do go to the board and that's what they did here they preferred to go to the board, they've got to go to and through the superintendent.

Unknown Speaker: (Inaudible)

Mr. George N. Hayes: That's correct.

And this is what they didn't do here, they --

Chief Justice Earl Warren: No, but they have a right to petition the government don't they?

Mr. George N. Hayes: To petition the government?

Chief Justice Earl Warren: Yes, as a citizen don't they have a right to petition the government?

Mr. George N. Hayes: Yes, but they as teachers, they are in a position of being teachers and the only limitation here is and we submit it's a reasonable one, is that when they do petition for redress, a matter involving the superintendent which most of these things did, that they go to the -- they petition the board to and through the superintendent and I only submit that this is a reasonable regulation and it's the same kind of basic thing as the situation of Mr. Watts in -- during school time using school time and school premises to solicit others to get rid of the superintendent.

This is conduct that just can't be condoned.

Chief Justice Earl Warren: And is there special regulation on that?

Mr. George N. Hayes: On which on --?

Chief Justice Earl Warren: On school time.

Mr. George N. Hayes: No, there is no special regulation, this comes under this catch-all provision which the Supreme Court found that the conduct which was immoral under the statute or which under another statue might be called incompetence or whatever it is.

It was under that section, under that provision that one of the reasons for not retaining Mr. Watts.

Chief Justice Earl Warren: So if one teacher discusses with another any of the deficiencies of a schools on school time in the short time he would be guilty of immoral conduct.

Mr. George N. Hayes: No, I don't think so.

Chief Justice Earl Warren: Where is the dividing line?

Mr. George N. Hayes: The dividing line is where the teacher adopts the announced purpose of trying to get others to join a movement to get rid of the superintendent.

Chief Justice Earl Warren: Where does he have notice of that facts is distinguish from what I said --

Mr. George N. Hayes: Well, I think --

Chief Justice Earl Warren: As I put.

Mr. George N. Hayes: I think this is one of those things that, that he is bound to know that he is not permissible when you are dealing with the state and an employer situation.

Chief Justice Earl Warren: Anything under your law or your regulations or your decisions of Supreme Court from the past that declare that to be the rule?

Mr. George N. Hayes: Not that I am aware of, but this is the situation where you are applying a standard like good of the service or for good cause.

There isn't always -- it's not spelled out, but when the Court finds that something is good cause, it isn't necessarily warning of it, there is a -- it's a finding by the body that's adjudicating this, that it's a kind of thing that he should have known.

For instance, well, I'd rather not --

Justice Thurgood Marshall: Well suppose the teacher writes an open letter to get rid of the governor would that be immoral?

Mr. George N. Hayes: An open letter to what, to the public?

Justice Thurgood Marshall: Uh-huh.

Mr. George N. Hayes: No, I don't believe so.

Justice Thurgood Marshall: Well could he --

Mr. George N. Hayes: Provided -- I mean if it contain -- unless we are presuming that it contained truthful statements.

Justice Thurgood Marshall: Well, then would I be correct in assuming that the teacher could circulate a letter with the truthful statements and statement he thought to be true, call in for the removal of anybody else except the superintendent?

Mr. George N. Hayes: Well, the superintendent isn't removed by election, I mean that's -- he is appointed by the board.

Justice Thurgood Marshall: Then I am correct.

That you can circulate a letter and calling for the removal of any other public official other than the superintendent.

Mr. George N. Hayes: Well if you don't -- well let me limit this -- certainly if you do it on school time among your teachers this would not be proper.

Now it might be --

Justice Thurgood Marshall: This is done at home at midnight.[Laughter]

Mr. George N. Hayes: I would have no objection with it.

Justice Thurgood Marshall: And that would not be immoral.

It only becomes immoral when you write about the superintendent.

Mr. George N. Hayes: No, I did not limit that to -- I mean I think you could do this on the superintendent, provided I mean -- but that's not the issue here because the question here is, see that's not what's involved, what's involved is first doing it on school time, in this case of Mr. Watts, the second place with respect to both of them it's doing it in violation of a regulation, a reasonable regulation which says they have to got to submit any grievances they have first to the superintendent.

If they submit them to the board and they didn't choose that route, they addressed it to the board and they were purportedly, they were trying to get redress with these grievances and they didn't follow the procedure, I mean it's as sample as that.

If I may just make -- I have just a few minutes.

Chief Justice Earl Warren: Would you say if they made their complaint to the board directly and didn't go through the superintendent that, that would because for discharge?

Mr. George N. Hayes: Where you have this regulation, yes sir and that's the situation here, they did that.

Chief Justice Earl Warren: Even though the superintendent was the one they're complaining about.

Mr. George N. Hayes: Yes, or certain actions of the superintendent, they were complaining about actions of the superintendent.

For instance, that he hadn't held enough fire drills which he admitted it was true, but it wasn't brought to his attention first, they just took it directly to the school board.

Now I submit that's the kind of thing that he had a right to know and remedy, perhaps he didn't know that he hadn't had enough.

I mean this is the kind of thing and that's why this is reasonable.

But on this question of the arguments been made on the question of over breadth, I'd like to point out that these are statutes and the statute regulations have been attacked on the grounds over breadth.

I submit that that is not applicable to this type of statute.

It's applicable to the type of statute that says if you're a member, the communist party you can't be employed by the state, these have been struck down on grounds that the decision of whether being a member of communist party is good or bad has been made by the legislator without any subjective investigation so that all that's left to the administrative party in applying this standard is was he or was he not a member of the communist party?

Did he or did he not do this particular conduct and if in fact being a member of the communist party in all cases is not grounds for disbarment or whatever then it's no good.

And that's where the overbroad argument applies but where you have a catch-all type of statute or regulation as we do here and where the determination of adjudicating board is to consider all the facts and then determine subject to review whether certain acts fall in the definition of prescribed conduct, it's a different situation and in fact this is a kind of the statute you have with the bar statutes on Schware and (Inaudible) where they say a good moral character and these cases, these denials of admission have been overturned by this Court and if the statute stands because the standard is all right it's just in that particular case it wasn't applied right.

It's a broad standard and the bar association has the job of determining if it applies in this particular case and that's the kind of situation we have here with the Alaska Supreme Court by the standard that it did apply.

But even though they said in certain cases it's unconstitutional as application, the Supreme Court of Alaska said this how -- that doesn't mean the whole statute is bad because any statute is the words, the power of contempt of a court which has been held by this Court in many instances to have exceeded the constitutional limits is nevertheless still there, it isn't destroyed because in some circumstances it can be unconstitutionally applied.

Thank you.

Chief Justice Earl Warren: Mr. Kauffman.

Rebuttal of George Kaufmann

Mr. George Kaufmann: Mr. Chief Justice, it seems to us that the basic issue in this case is whether and I think it's been granted, it wouldn't be unfair but I think it has been granted that we are dealing here with the exercise of the First Amendment rights.

The question under this Court's decision is whether there's an overriding state interest which justifies subordinating them.

Now I submit that the interest of the school board in knowing in advance, what the grievances are justice as it was stated here does not override under our constitution, the interest of the public of what's going on in its school system.

So it seems to me that the interest which was asserted is an insufficient one.

I can imagine a situation in which it ordered they have an opportunity to work these things out inside internally first, it would be insisted that this kind of a procedure if it was known to be available and if it was available should be followed first because the public also has an interest in having these things worked out if it all possible.

Now it was said that it was -- it has been said here that it was the objective of these people throughout to get rid of the superintendent and that this is why they circulated the open letter.

Now there is considerable testimony in this record that the only reason that they published this open letter at the time they did was because the whole process of internal communication had broken down.

And I'd like to read to Your Honor just one colloquy on this, was a testimony of Mr. Blue and there is no finding, nothing to the contrary anywhere in this record.

“You did in fact”, this is a question of Mr. Burn, “You did in,” this is at 467 of the appendix.

“You did in fact publish a statement about Mr. Fibricious (ph) without bringing the matter to his attention first.”

“I participated,” Mr. Blue, “I participated in the preparation, publication and distribution of this document, part of which I helped to prepare, part of which others prepared, it was all prepared as far as we can determine in a truthful manner and it was an open and that didn't last -- merely a last resort to resolve a very serious problem that affected the lives of a great many people and which already had the town in furor.”

Now it was said that it was -- the town was in the furor and counsel for respondents said well this is a reason why they shouldn't have done this.

As we understand the First Amendment that's one of its objectives and one of its consequences, to have public debate on issues of public importance and this very public furor shows that in this town of Seward Alaska, the operation and administration of their public schools was important.

Justice Byron R. White: And just remember you have to -- I suppose we accept the finding that some of these statements were false.

Mr. George Kaufmann: Yes.

Justice Byron R. White: If we do you have to have some excuse for -- you have to have some justification for saying that people should not be disciplined for circulating false statement about an institution which it claims the public should have truthful information about it.

Mr. George Kaufmann: Yes sir and the reason for that is because we cannot have any information truthful or false if the people who are going to give the information have to be the guarantors of the truth and we submit that the principle in the New York Times be in this case is quite indistinguishable.

The purpose of the New York Times case –-

Justice Byron R. White: Why should a person have advantage of the New York Times principle however who refuses use an avenue of getting at truthful information?

Mr. George Kaufmann: Now that was an issue in New York Times also and though the argument was made that it was all in the files of the -- in the morgue of The New York Times it would have only checked it out and the argument was this showed that they were not in good faith.

The fact of the matter is, on the facts of this case Your Honors every bit of this information was known to the School Board and was known to the Superintendent.

There were matters in this letter which had already been dealt with.

This was, although it was addressed it was called an open letter to the School Board, this is only a formalism, what they were doing here is they were telling the public, “look we have been trying to work this thing out internally, it just hasn't worked and we urge it as the electorate, as the ultimate resort –-

Justice Byron R. White: And they gave the electorate false information.

Mr. George Kaufmann: Yes sir, if the finding -- they didn't give them false information as to that, nobody made a finding, there is a no --

Justice Byron R. White: They gave false information in the open letter.

Mr. George Kaufmann: That was the finding below, which incidentally we challenge and I may say that is not binding on this Court and there is another statement that was made here this morning which was also supported by this finding determination of Supreme Court of Alaska which we think is irrelevant for the reasons pointed out in our reply, but which is -- there is no record -- evidence in the record to support the statement that this was made during school hours because the person who testified to that said, well, he wasn't sure and this is also set forth in our reply brief.

But it seems to us that while there maybe situations to which references made here were if a man campaigns against his own superior that this would have such an impact on the moral and discipline that you shouldn't commit it, there may be that kind of a situation and the findings and determinations of this statute by the Court below, this was not an adequate basis and furthermore that the statute be a morality statute so obviously unconstitutional that it can't justify the discharge opinion.