Sussman v. Cowan

*1001 OPINION and ORDER

Before HUNTER, Circuit Judge, and FISHER and BIUNNO, District Judges.

PER CURIAM.

Plaintiff has moved for summary judgment and defendants have countered with a motion to dismiss the complaint or in the alternative for summary judgment.

Plaintiff, Oscar Sussman, is an employee of the Department of Health of the State of New Jersey with the position of Director of Consumer Health Services. In his complaint Sussman attacks Executive Orders 19 and 20, which were issued by the then Commissioner of Health, James R. Cowan, pursuant to his authority to adopt rules and regulations governing the internal management of the Department of Health, N.J.S.A. 26:1A-15(b), N.J.S.A. 47:1A-2. The gravamen of the complaint is the allegation that defendants’ issuance and implementation of Executive Order No. 20, 1 and their application of Executive Order No. 19 in support thereof, violate the plaintiff’s federal constitutional rights of free expression. 2 Although Cowan is no longer Commissioner, the Executive Orders are still viable.

The plaintiff’s motion for a summary judgment is directed solely to the constitutionality of Executive Order No. 20. It is alleged that this Order is unconstitutional on its face as imposing an invalid prior restraint on free expression. Although the government does not deny that this regulation constitutes a prior restraint, it is urged upon us that it is only a notice requirement. The defendants contend that Executive Order No. 20 merely requires a Department of Health employee to give the office of the Commissioner of Health notice that he intends to have an interview or grant a press release. We were told at oral argument that the reason for its promulgation was to enable the Commissioner, or his representative, to rebut any statements made by the employee which are deemed to be detrimental to Health Department policy.

We reject the defendants’ contention that Executive Order No. 20 is merely a notice requirement, 3 and we hold that Executive Order No. 20 is, on its face unconstitutionally overbroad. Of course, this is not to say that a regulation restricting the freedom of speech of Health Department employees could not be valid if properly drafted. See Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1969); Cox v. Louisiana, 379 U.S. 536 , 85 S.Ct. 453 , 13 L.Ed.2d 471 (1965); Eisner v. Stamford Board of Education, 440 F.2d 803 (2d Cir. 1971). As the United States Supreme Court stated in United States v. O’Brien, 391 U.S. 367 , 88 S.Ct. 1673 , 20 L.Ed.2d 672 (1969):

A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated *1002 to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 377 . 4

However, Executive Order No. 20 gives the Commissioner of Health unbridled authority to issue or withhold his consent to the issuance of a press release or to permit interviews by Health Department employees without reference to a legitimate Health Department policy or regulation. Shuttlesworth v. Birmingham, 394 U.S. 147 , 89 S.Ct. 935 , 22 L.Ed.2d 162 (1969); Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666 , 82 L.Ed. 495 (1938); See Pickering v. Board of Education, supra; Bantam Books, Inc., v. Sullivan, 372 U.S. 58, 70 , 83 S.Ct. 631 , 9 L.Ed.2d 584 (1963); Near v. Minnesota, 283 U.S. 697 , 51 S.Ct. 625 , 75 L.Ed. 1357 (1931).

There is generally a presumption in favor of the constitutionality of legislative acts and administrative regulations. However, where the legislative act either on its face or in its specific application restricts rights protected by the First Amendment, the presumption is against, rather than in favor of, its validity. Thomas v. Collins, 323 U.S. 516, 529-531 , 65 S.Ct. 315 , 89 L.Ed. 430 (1944). See Opinion of Justice Rutledge in United States v. C. I. O., 335 U.S. 106 , 68 S.Ct. 1349 , 92 L.Ed. 1849 (1948). We find nothing in this record to establish constitutionally sufficient grounds justifying the impairment of the right involved. Therefore, plaintiff’s motion for summary judgment is granted and defendants’ motion to dismiss, or in the alternative for summary judgment, is denied.

. Executive Order No. 20 reads as follows: No member of the State Department of Health may grant interviews or issue press releases without the consent of the office of the Commissioner.

. Executive Order No. 19 is basically a restatement of the New Jersey Conflict of Interest Law, N.J.S.A. 52:13D-12 et seq. Plaintiff does not challenge the constitutionality of the New Jersey Conflict of Interest Law nor the authority of the Commissioner of Health to promulgate internal rules pursuant to N.J.S.A. 26:1A-15(b) and N.J.S.A. 47 :1A-2.

. On October 9, 1973 Sussman sent a memo to Dr. Cowan requesting permission to take part in news interviews and to speak before a professional organization. On October 17, 1973 the following memo was sent to Suss-man from the office of the Commissioner through Dr. Kwalick:

Permission for you to speak before the American Society of Public Administration on October 24, 1973 and the American Public Health Association’s 101st Annual Meeting in San Francisco is pending the submission and review of your text.

Submit your text to me immediately and a decision will be forthcoming from the office of the Commissioner through me.

. O’Brien is one of a line of cases which might be classified as involving “speech-plus”, i. e. a case where “speech” and “non-speech” elements are combined in the same source of conduct. These cases stand for the proposition that a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms, O’Brien, supra at 376 (citations omitted). The instant ease is distinguishable from O'Brien in that it is concerned with “purespeeeh”. However, the First and Fourteenth Amendments afford even greater protection to those who communicate ideas by “pure-speech”. Cox v. Louisiana, 379 U.S. 536, 555 , 85 S.Ct. 453 , 13 L.Ed.2d 471 (1965) ; Walker v. Birmingham, 388 U.S. 307, 316 , 87 S.Ct. 1824 , 18 L.Ed.2d 1210 (1967).