Robert Leonard, et al.,
Plaintiffs-Appellants,
v.The CITY OF COLUMBUS, el al.,
Defendants-Appellees.
No.82-8158.
United States Court of Appeals,
Eleventh Circuit.
May 23, 1983.
705 F.2d 1299
Rehearing and Rehearing En Banc.
Denied Sept. 9, 1983.

Summary

Black former policemen brought suit against the city seeking damages for wrongful discharge, and reinstatement. The United States District Court for the Middle District of Georgia, J. Robert Elliott, J., dismissed their claims, and police officers appealed. The Court of Appeals, Kravitch, Circuit Judge, held that black police officers? removal of American flag from their uniforms in an effort to emphasize a widely held perception of racially discriminatory practices in the city?s police force constituted symbolic speech which was protected under First and Fourteenth Amendments; thus, their dismissal for removing the flag from their uniforms was unconstitutional.

Opinion

KRAVITCH, Circuit Judge:
Appellants are former policemen of the City of Columbus, dismissed by the City for events occurring in May, 1971. In this action challenging their dismissal they assert numerous grounds for relief under the United States Constitution. The district court found merit in none of the grounds asserted. We conclude differently, holding appellants? dismissal violated their first amendment right of free speech; consequently, we reverse.
In early 1971 black members of the City of Columbus Police Department (the ?Department?) formed the Afro-American Patrolmen?s League (?the League) in order to present effectively grievances of the black officers. At that time there was a growing tension among black officers, who perceived that the Department was treating blacks in a discriminatory manner. Specific complaints involved discriminatory hiring and promotion of blacks, discriminatory assignment and disciplinary practices, and alleged police brutality toward members of the black community. Although several black police officers had brought complaints before the Board of Public Safety, they believed no progress was made.

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?.After attempts to pursue the matter with Department officials failed; black officers began to picket the police station on May 29 and 30. At all times the demonstrations were peaceful and orderly. Department official did not inform plaintiffs that the picketing was unlawful, or could result in their dismissal.
On May 30 black officers and various civic leaders met to discuss the increasingly tense situation. The evidence is unclear as to what, if anything was agreed upon by those who participated in the meeting. League members testified the civic leaders and intermediaries suggested a ?cooling off? period during which the black officers would cease picketing and continue performing their duties, in return for which no charges would be brought for previous picketing?
Angered by what League members perceived to be a violation of the ?cooling off? period, the League voted to resume picketing the next day. They also agreed to participate in the ?flag incident,? which gave rise to this suit. On the morning of May 31 seven officers, six of whom are appellants in this action, began to picket the Department. All officers were off-duty, but in uniform. Appellants carried signs with captions such as ?WE DON?T WANT TO BE POLICEBOYS; WE WANT TO BE POLICEMEN? and ?HAVE YOU EVER HEARD OF POLICE BEING ARRESTED FOR CONTEMPT OF COURT.?
Later, after members of the press arrived, the picketing officers assisted one another in removing an American flag emblem from the sleeve of each uniform shirt. The flags were removed carefully, thread by thread, with a razor. At no time was the flag treated with disrespect; to the contrary, Officer Leonard, speaking for the others present, explained the high respect officers had for the American flag and the ideals it represented, particularly liberty and equal justice for all. The officers, many of whom had served in Vietnam, did not believe the Department had extended them just treatment consistent with these principles; accordingly, they considered it inappropriate to wear the flag on their uniform. After Deputy Chief Brown refused Leonard?s attempts to present the flag emblems to him, Leonard places the emblems in his pocket. The incident was at all times peaceful, unaccompanied by disorder, violence or boisterousness. Photographs of the incident portray the scene as peaceful.
At the time the ?flag incident? was occurring an emergency conference was held at which Chief McGuffey, Joseph W. Sargis, the Director of Public Safety, and City of Columbus Mayor Allen agreed that discharge of the officers was in order. Although Chief McGuffey indicated the primary reason for the firing was the flag incident; Sargis characterized it as a ?crescendo? of the activity of past days, referring specifically to prior League activities. The dismissal letter?refers specifically, and solely, to removal of the flag patch.

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?Sargis accused appellants of making ?baseless allegations of unlawful conduct, racism, and discrimination? against the Department without first bringing those complaints through ?channels.? His statement concluded ?[t]oday they picketed the Columbus City Police Department and removed the American Flag from their uniforms. These men did not enlist in the Police Department, they do no have to wear that uniform or flag again; they are dismissed.?

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Appellants? claim under the First Amendment that they were discharged for removing the flag from their uniform, that the removal of the flag constituted symbolic speech, that the symbolic speech was protected under the First and Fourteenth Amendments, and that, consequently, dismissal on the basis of an exercise of a protected right was unconstitutional. The district judge denied appellants? First Amendment claim, concluding that removing a flag patch from the uniform, when the patch was required by City resolution, was not symbolic speech:
This was a calculated show of contempt for the City authority and a demonstration of refusal to obey its lawful ordinances, rules and commands. If this was not ?conduct unbecoming an officer which might be detrimental to the service? and an ?act contrary to the good order and discipline of the department,? then the Court does not know how it could be categorized. If this was only ?symbolic speech,? then it might well be presumed that punching the Police Chief in the nose would also be so regarded. There was no denial of freedom of speech.

We disagree.
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The law underlying whether appellants? activities were protected under the First and Fourteenth Amendments is more complex. We must weigh ?the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.??The facts of each case will affect the balance uniquely; in this case we weigh the conduct of officers that goes beyond ?pure speech??against the interest of the City of Columbus in seeing that its police services, a function traditionally accorded special respect, remain effective?
We address initially the interests of appellants, and conclude that despite the fact that the activities of appellants involved conduct as well as ?pure speech? their interest in expressing themselves was substantial. Three factors lead to this conclusion. First, the conduct here at issue was symbolic speech, closely ?akin to pure speech,??The conduct of the officers involved no violence or disorder: they peacefully removed the American flag from their uniforms. Representing as it does precepts fundamental to this nation, the American flag frequently has been the focal point of suits involving freedom of expression?Significantly, the officers in no way mutilated or defaced the flag; rather in their view they expressed their deep respect for it and the principles it represented. Removal of the patch under these circumstances bears great similarity to pure speech. Second, although we do not evaluate the content, or ?social worth? of ideas?certain types of speech traditionally are accorded greater protection in our society by virtue of the fact that the speech goes to the heart of our democratic process? Appellants sought to emphasize a widely-held perception of racially discriminatory practices in the City of Columbus Police force. These practices concerned not only internal police matters, but matters of interest to the community-at-large as well? For example, appellants publicized a perception of discriminatory hiring of police officers, and a concern that beat assignments were being made along racial lines, i.e. black officers in black communities. For a police force to be effective it must have the respect and support of the community as well as its officers; our system of government demands that support be garnered through informed evaluation of circumstances, and not through the suppression of dissent. Third, and finally, courts repeatedly have held that a police officer does not receive a ?watered-down version? of constitutionally protected rights by virtue of his public employment on the police force? In this context, appellants? interest in peaceful, effective expression of their views was great, and we accord it commensurate weight.
Balanced against the interest of appellants is the interest of the City and Police Department in promoting ?the effectiveness of the force.? We must go beyond asserting the need for ?discipline? in ?paramilitary? or ?quasi-military? organizations
? and identify the true interest the Department has in suppressing the speech and conduct that resulted in appellants? dismissal. That interest must derive from the reason appellants were dismissed.
Appellees? brief states ?[n]one of the plaintiffs in this case were dismissed for speaking, nor were they dismissed for flag abuse; all of them were dismissed for [d]efying properly constituted authority,??Brief of Appellee at 38 (emphasis supplied), The district court elaborated upon the ?properly constituted authority.? ?[Removing the flag] was a calculated show of contempt for the City authority and a demonstration of refusal to obey its lawful ordinances, rules and commands.?
Simply stated, the officers were dismissed for failing to obey a resolution of the City of Columbus requiring the flag patch on the police uniform. That the speech/conduct that led to dismissal is proscribed by statute is irrelevant to First Amendment analysis, however, if that statute suppresses constitutionally protected activity.
?In other words, there must be an interest apart from compliance with a statute; a statute which inhibits constitutional rights without sufficient governmental interest is invalid.
Although the district court restrained appellants from eliciting testimony concerning the purpose of the flag requirement itself, it was the obligation of appellees to develop that interest, and they did not seek to do so. Given the nature of the ordinance violated, however, we can deduce what the interest would be. The resolution required a flag patch on the sleeve of a police uniform, it did nothing more and nothing less. Testimony confirms the presence of the patch had no relation to the efficient performance of police duties. What the flag patch did accomplish is an integration of the police into the community, the flag patch representing a devotion to and concern for, American ideals. Although this sort of goal is most admirable, it is specifically because of what the flag stands for that the interest in having the patch worn must bow to the greater interest of the dismissed officers? free speech.
We can discern yet another interest here, one intimately tied to appellants? status as police officers. Although the City fails to advance this argument itself, we recognize an intrinsic interest in having police officers comply with ordinances of a properly constituted governing body. This interest is a valid and important one. It is not determinative in every instance, however, and certainly is insufficient here. Uncontroverted evidence at trial indicated that a number of police officers invariably were without the flag patch. Whether this was because ?old? uniform shirts did not have the patch, and whether the officers willfully or negligently failed to sew them on, is irrelevant: if the City?s interest in police compliance with City ordinances was compelling, discipline should have followed every violation. It is likewise undisputed that appellants were the first officers ever disciplined for failing to wear the patch. It was not until after appellants were dismissed that a white officer was disciplined for failing to wear the flag; in contrast to the dismissals here, that officer was suspended for five days.
Witnesses for the City acknowledged the above facts, but sought to distinguish this case on the basis that appellants stood up in front of the media and removed the flag patch, announcing they could not wear it because of injustice on the force. Such testimony only serves to emphasize that appellants were not punished for failing or refusing to wear the flag, they were punished for speaking. That the City may not do?Weighing the strong interest of appellants in speaking on a matter of public importance against the interest of the City in having the flag worn on the uniform, an interest no City official showed concern for until these black officers took the patch off, we can only conclude the speech was protected.