Full opinion text
PER CURIAM: Appellant Gary Moore brought this 42 U.S.C. § 1983 suit against the City of Kil-gore to remedy a violation of Moore’s First Amendment rights. This per curiam opinion explains the panel’s holdings. Part I of Judge Goldberg’s opinion concerns the application of Kilgore Fire Department Rule and Regulation 4.2A(40) to Moore’s speech. We unanimously reverse and remand for further proceedings on this issue. Judge Goldberg’s opinion constitutes the reasoning of the court on this issue. There is a second issue in this case concerning the facial validity of the Kilgore Rule. An opinion by Judge Higginbotham, in which Judge Davis joins, constitutes the panel’s holding affirming the District Court’s judgment that Moore’s facial attack upon the rule fails. Part II of Judge Goldberg’s opinion constitutes a dissent from the panel’s affirmance of the district court’s judgment concerning the facial validity of the Rule. GOLDBERG, Circuit Judge: Fiery words may both ignite public discourse and set aflame an employer’s ire. The City of Kilgore, appellee-defendant, (“City”) maintains that we should smother the words of Gary Moore, appellant-plaintiff (“Moore”). Moore invites us to hold that his words are a matter of public concern which weigh in his favor under the Pickering/Connick balancing test. Moore also seeks to overturn the City’s Fire Department Speech Regulation, Article 4.2A(40), as facially unconstitutional. Firefighter Gary Moore works for the City of Kilgore Fire Department. He spoke to the news media on December 17, 1985, concerning a fire which had occurred the day before his interview. The City disciplined Moore for his speech. Moore brought a 42 U.S.C. § 1983 action for damages, declaratory and injunctive relief against the City of Kilgore. After a bench trial, the court entered judgment for the City. Moore appeals on three grounds: (1) that the district court erred when it found that some of Moore’s statements are not “protected speech;” (2) that the district court erred in its application of the Pickering/Connick balancing test to one statement which the court found to be a matter of public concern; and (3) that the district court erred in determining that Article 4.2A(40) (“Rule”) of the Rules and Regulations of the Kilgore Fire Department was facially constitutional. We agree with Moore on his first two objections; we reverse the district court and remand for further proceedings consistent with this opinion. FACTS — LAY OF THE TERRAIN In 1985, the City of Kilgore experienced serious financial difficulties. With oil profits dwindling, the City had to cut city services. The City Commissioners and the City Manager, Ron Cox, determined that they would have to lay off forty employees by October 1, 1985. The fire department was the hardest hit with eleven projected lay-offs for a total reduction of fifteen positions (four vacancies were left unfilled). The layoff of firefighters did not occur behind closed doors. At the trial before the district court, Moore introduced into evidence numerous newspaper articles which document the controversy surrounding the staffing of the fire department. For example, one article on October 6,1985 that appeared in the Tyler-Courier-Times-Telegraph began, “Controversy is smoldering here between city officials and firemen — targets of recent city budget cutbacks. The key spokespersons in the battle of words are Gary Moore, president of an organized firefighters’ ‘union,’ and Ron Cox, Kilgore city manager.” In another newspaper article which ran on October 2, 1985, the article quotes a statement that the firefighters published: “It is difficult not to be emotional when we are talking about the lives and property of citizens whom we have sworn to protect.” Moore began his employment as a Kil-gore firefighter in 1980. He is a third generation firefighter, following in the footsteps of his grandfather, father, and uncle. He has been president of the Kil-gore Professional Firefighters Association, Local 2996, since July, 1985, and serves as the spokesperson for the firefighters. The Association is not recognized as a collective bargaining agent for employees of the Kil-gore Fire Department, but is recognized in the Kilgore area as the voice of the firefighters. Ron Cox, the City Manager, acted as the spokesperson for the City during the latter half of 1985. In the early morning hours of December 26, 1985, the Kilgore Fire Department responded to a house fire. Although a suspected result of arson, the fighting of the fire was essentially routine. The fire, however, produced tragic results. One firefighter, Hawthorne, died of an apparent heart attack while fighting the fire, and a second, Captain Jackson, fell from a ladder, sustaining serious injuries requiring hospitalization. Media representatives approached Moore for comments concerning the tragedy. Moore initially demurred. He went to see the City Manager, Cox, for two purposes: (1) to assist in expediting the paperwork to secure benefits for the survivors of the deceased fireman; and (2) to inform Cox of the inquiry from the press and coordinate his response concerning the death with the City’s plans. The fire chief was in Cox’s office when Moore arrived on December 26, 1985. The two had been discussing various aspects of the fire. Moore was welcome; the meeting was cordial. Moore stated the reasons for his visit. As to the reporters’ inquiries, Cox suggested that Moore limit his response to an expression of sympathy for the family of his deceased colleague. The following morning, December 27, 1985, the City held a press conference, after which the media representatives sought comment from Moore. Moore responded with a message of condolence for the family. Not surprisingly, the press persisted with questions about the fire reflecting back to the ongoing debate regarding the staffing decisions. Moore answered direct questions concerning the fire, firefighting techniques, and the duties of firefighters in fighting blazes. Specifically, the newspaper article (which was attached to the disciplinary memorandum discussed below that Cox eventually gave to Moore) stated: Gary Moore, president of the Kilgore Professional Fire Fighters Association, to which Hawthorne belonged, commented: “B.J. was a very nice man and a good firefighter. Firefighters get to be pretty close. We’re just sickened over something like this.” Moore said he was “not saying that B.J. wouldn’t have had a heart attack” if the fire had not occurred, but contended the incident pointed out that “we don’t have enough manpower.” He added that the fire department sent No. 1 engine — a two-man company — and No. 3 engine — a three-man company, and then called in firefighters from Overton, Sabine and Liberty City, the Kilgore Rescue Unit and four or five off-duty firemen. “It’s common practice to have a ‘butt man’ to hold the ladder. Jackson didn’t have that.” Moore said, “The other man had to stay with the engine.” “I just want to say, ‘I told you so.’ ” Moore added referring to his earlier charges that the fire department is understaffed following a lay-off of 15 firemen in October. City officials declined to respond to Moore’s charges, other than pointing out that ice was on the ladder and concrete, making them slippery. “We’re dealing with a shortage of manpower. It may not have made a difference in B.J. Hawthorne’s heart attack. We really don’t know. But there was no doubt it contributed to Capt. Jackson’s injury.” Capt. Jackson had fallen from a ladder. The latter statement referred to the absence of a “butt-man” to hold Jackson’s ladder as he climbed, a fundamental practice, according to Moore. Publication of these comments spurred Cox to order Moore to report to his office on December 31, 1985. When Moore arrived, Cox had a prepared memorandum imposing disciplinary sanctions, including: (1) suspension without pay for 30 days; (2) demotion from the status of driver to firefighter; (3) probation for six months; and (4) prohibition from visiting any fire station for any reason during the suspension without the prior approval of the fire chief. In the disciplinary memorandum, Cox wrote: Both Chief Duckwork and I directed you to say as little as possible and not discuss the events surrounding the fire because of the delicate nature of the circumstances with the potential of arson involved, and the death of a fireman during the fire. Specifically, I told you to be very, very careful with what you said. I recommended you limit your comments to indicate your regrets over Lt. Hawthorne’s death on behalf of the Association. At the close of the conversation, you told me that you would say no more than what we had discussed in this conversation to the media and I agreed. You also indicated, with our agreement, that you would be at the press conference to be held Friday morning, December 27, in order to express the regrets of the Association regarding Mr. Hawthorne. You attended that press conference. On Friday, December 27, the Kilgore News Herald carried the newspaper article, a copy of which is attached to this memo, that quotes you discussing several details of the fire itself. On Friday evening of that same day, you conducted a television interview, on Channel 7, Tyler, and discussed various details of the fire in violation of this directive. And finally, articles in the Friday evening, December 27, and Saturday morning, December 28, (also attached) issues of the Longview Journal, again quoted you describing various details of the fire itself. Cox went on in the memorandum to state: You have misrepresented to me your intentions. You had stated you would say no more than what we had discussed and agreed upon, and proceeded to discuss with the media what you considered the facts to be regarding the fire. This, again, is insubordination. For your information, insubordination is defined in the dictionary as “not being subordinate or obedient.” To be subordinate is to be “subject or subservient to another.” It is our responsibility and duty as employees to be subject to the rules and regulations of the City. Mr. Moore, you are an employee of this City. You are not expected to agree with every policy or every directive that is given to you, but you are expected to follow them. You have been supplied with a copy of the Fire Department Rules and Regulations and are expected to know what those rules and regulations are. In addition, you were directed verbally to refrain from any discussion of the events surrounding the fire. The memorandum concluded with Cox’s directive to Moore: “There will be no more public announcements by you regarding your opinion of any policies or directives issued by this City.” The memorandum cited and quoted Article 4.2A(40) of the Rules and Regulations of the Kilgore Fire Department which directs firefighters to: Refrain from furnishing information relative to department policy, practices, or business affairs except as authorized by the Chief of the Department. After an unsuccessful attempt to secure a reconsideration of the disciplinary order, Moore filed this suit seeking declaratory and injunctive relief, damages, and attorney’s fees for infringement of his First Amendment rights. Trial on the merits was advanced and consolidated with the hearing on the application for injunctive relief. Fed.R.Civ.P. 65(a). After a bench trial, the district court denied Moore all relief. It did find that Moore had been disciplined for his public comments. The court, however, concluded that only the reference to a manpower shortage was even arguably a matter of public concern, and that the remainder of the statements were merely “carping criticisms, causation analysis that approaches fingerpointing, and divulgence of possibly sensitive information about the composition and duties of fire department companies in emergency situations.” In addition, the court concluded that Moore’s First Amendment right to speak out on matters of public concern was outweighed by a legitimate governmental interest in the efficient operation of the city fire department. Finally, the court found that Article 4.2A(40) of the Kilgore Fire Regulations was facially constitutional. The district court entered judgment for the City. Moore appeals. DISCUSSION The City of Kilgore disciplined Gary Moore for the comments he made on December 26, 1985, concerning the fire in which two firefighters were injured, one fatally. Neither parly contends otherwise. We undertake a two-part inquiry in this case: first, we will pass upon the district court’s application of the Pickering/Connick balancing test to Moore’s speech; and second, we will consider the facial constitutionality of the Kilgore Fire Department Speech Regulation. The district court held (1) that the First Amendment did not protect Moore’s speech; and (2) that the Speech Regulation is facially constitutional. We reverse the first determination. I write separately in dissent concerning the facial constitutionality of the Kilgore Rule. I. Pickering/Connick Balancing Test As Applied To Moore’s Speech To begin, we discuss the application of the Kilgore Fire Department Speech Regulation to Moore’s comments in light of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). To accomplish this first step we need to decide whether Moore’s speech constitutes commentary upon matters of public concern, and if so, whether the interest of the City as an employer, “in promoting the efficiency of the public services it performs through its employees” outweighs Moore’s and the public’s interest in the speech. A city may not discipline an “employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987); Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). The City disciplined Moore on the basis of his speech pursuant to Kilgore Fire Department Regulation, Article 4.2A(40), which states: “Refrain from furnishing information relative to department policy, practices, or business affairs except as authorized by the Chief of the Department.” A. Matters of Public Concern A threshold issue in determining whether Moore’s speech is constitutionally protected is whether Moore’s speech may be “fairly characterized as constituting speech as a matter of public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689-90, 75 L.Ed.2d 708 (1983). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690-91. Such an inquiry is a question of law, not fact. Connick, 461 U.S. at 148 n. 7, 103 S.Ct. at 1690-91 n. 7. And we have an obligation, imposed by the Supreme Court’s First Amendment cases, to examine independently the whole record to be sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2897 n. 9, 97 L.Ed.2d 315 (1987) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964)). We, therefore, now examine the record as a whole paying particular attention to the content, context, and form of Moore’s speech to see if the speech concerns matters of public concern. But as we undertake this task, we are mindful that a speech’s content, form and context must be considered as a whole package, and the significance of these factors will differ depending on the circumstances of the particular situation. Issues which touch upon matters of public concern are limitless. In this case, the content of Moore’s speech concerned a possible shortage of firefighters to battle a blaze in which one firefighter died from a heart attack and another fell from a ladder. Moore commented that “the fire department sent No. 1 engine — a two-man company — and No. 3 engine — a three-man company, and then called in firefighters from Overton, Sabine, Liberty City, the Kilgore Rescue Unit and four or five off-duty firemen.” All these comments concern whether the fire department was understaffed. Moore was also quoted as saying “It’s a common practice to have a ‘butt man’ to hold the ladder. [Captain Jackson, the firefighter who was seriously hurt when he fell from a ladder,] didn’t have that.’ Moore stated, ‘The other man had to stay with the engine.’ ” Again, Moore’s comments touched upon the possibility of a staffing shortage. Even Moore’s comment “I just want to say T told you so’ ” refers to his past comments, all of which concerned the staffing of the fire department. The public, naturally, cares deeply about the ability of its Fire Department to respond quickly and effectively to a fire. If staffing shortages potentially threaten the ability of the Fire Department to perform its duties, people in the community want to receive such information. The public had an interest in hearing the content of Moore’s speech. The First Amendment’s freedom of speech clause protects such speech. Freedom of speech presupposes both a willing speaker and a willing listener. A listener’s interest enjoys protection just as the speaker’s interest finds refuge behind the shield of the First Amendment. The Supreme Court’s jurisprudence well supports this understanding of the First Amendment. See Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1822-23, 48 L.Ed.2d 346 (1976) (citizens have a right to receive advertising information); Kleindienst v. Mandel, 408 U.S. 753, 758, 762-65, 92 S.Ct. 2576, 2579, 2581-83, 33 L.Ed.2d 683 (1972) (citizens’ right to hear alien’s speech); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386, 89 S.Ct. 1794, 1804, 23 L.Ed.2d 371 (1969) (purpose of First Amendment is to preserve an uninhibited marketplace of ideas in which truth ultimately will prevail; thus, the public must be able to hear the ideas and experiences to be able to participate); Thomas v. Collins, 323 U.S. 516, 534, 65 S.Ct. 315, 324, 89 L.Ed. 430 (1945) (right of workers to hear what labor organizer had to say abridged by state law requiring organizers to register before soliciting union membership); Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313 (1943) (freedom of speech necessarily protects the right of citizens to receive information); see also Brawner v. City of Richardson, Texas, 855 F.2d 187, 191-92 (5th Cir.1988) (allegations of police misconduct constitute matter of public concern). While our analysis is grounded in significant part on the importance to the public of the content of Moore’s speech, Moore, as a citizen, also has a significant interest in speaking his mind on matters of public concern that factors importantly into our analysis. The First Amendment accords all of us, as participants in a democratic process, room to speak about public issues. The operation of the city Fire Department certainly is a matter that concerns interested citizens. When Moore spoke about the fire on December 26, 1985, he spoke as an informed citizen regarding a matter of great public concern. Thus, the content of Moore’s speech concerns a matter of public concern. We now turn to our context analysis. The district court stated: the need for public debate on the staffing issue had passed. The City Commission had chosen their policy and implemented the same as of October 1, 1985; three months before Moore’s comments. Moore had opposed the action publicly on behalf of the Association, but his proposed course was not the one followed. The issue, as of December 26, was moot. Using this misfortune as the first opportunity to rehash this issue does not directly address matters of public concern, but rather smacks of a disgruntled employee attempting to draw public attention to this job-related issue. The district court misses the point. The judiciary cannot declare the issue “moot.” Although a particular incident may have passed into history, the caldron of ideas, implicating the incident may continue to boil. The underlying philosophical, political and social issues do not evaporate because of an ex post judicial declaration of “mootness.” The media in this case approached Moore, asked him for his comments, and printed his responses. The caldron was still simmering concerning the issue. While many cases touching the First Amendment may not receive media coverage, our case is even simpler. Here the pot was still bubbling; because the public was receptive and eager to hear about the ability of the Fire Department to perform its duties. Just because three months had passed since the budget cuts had been made, then, did not make the issue “moot.” In a representative government, decisions often are not “final.” Public pressure can mount, citizens can vote new people into power, and decisions can change. The power of public speech is its ability to influence, often in unseen ways, and protect our democratic form of government. Thus, our analysis of the context in which Moore's speech was uttered also leads us to conclude that his speech involves a matter of public concern. Finally, we turn to an analysis of the form of Moore’s comments. They do involve a hint of personal “employee” considerations (“I just want to say, T told you so.’ ”). However, mixed motivations are involved in most actions we perform everyday; we will not hold Moore to herculean standards of purity of thought and speech, ever assuming Moore’s motivations were mixed. Taking Moore’s speech as a whole, and considering the content, context, and form together, we hold that Moore’s speech does involve a matter of public concern— the effectiveness of the Fire Department in fighting fires. B. Pickering/Connic/c Balance Because Moore’s speech addresses a matter of public concern, we proceed to the second step of our Pickering/Connick inquiry. Pickering requires that we determine whether the interest of the employer “in promoting the efficiency of the public services it performs through its employees” outweighs Moore’s and the public’s interest in his speech that addresses a matter of public concern. See Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). The City bears the burden of producing evidence which shows its interest in disciplining Moore for his speech. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2892, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 1691-1692, 75 L.Ed.2d 708 (1983). The strength of the “city interest” that the City must demonstrate depends on the strength of the “speech interest” in the scale’s other pan. In Connick, the Supreme Court corrected a district court that misapprehended this balancing process. The Supreme Court stated: The District Court viewed the issue of whether Myers’ speech was upon a matter of “public concern” as a threshold inquiry, after which it became the government’s burden to “clearly demonstrate” that the speech involved “substantially interfered” with official responsibilities. Yet Pickering unmistakably states, and respondent agrees, that the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression. Although such particularized balancing is difficult, the courts must reach the most appropriate possible balance of the competing interests. Connick, 461 U.S. at 150, 103 S.Ct. at 1691. Naturally, we will not consider either side’s interest in a vacuum. The “manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.” Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2898, 97 L.Ed. 2d 315 (1987). 1. Interest in Moore’s Speech On the freedom of expression side of the balance, both Moore and the public have a strong interest in Moore’s speech. The effectiveness of Fire Department services concerns the people of the City of Kilgore. Moore’s informed speech provides the public with valuable information that is otherwise difficult to obtain unless an informed person speaks out. Moore also has a significant interest in speaking on this issue. Dissemination of information throughout the community may bring the community’s suasion to bear on the issue of the effectiveness of the Fire Department. See Pickering v. Board of Education, 391 U.S. 563, 572, 88 S.Ct. 1731, 1736, 20 L.Ed.2d 811 (1968) (“Teachers are, as a class, the members of the community most likely to have informed and definite opinions as to how funds alloted to the operation of the schools should be spent [a matter of public concern.] Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal”). A speaker hopes that his or her speech will set afire the political conscience of the community. As an informed citizen, Moore’s comments and insights constituted powerful knowledge concerning the effectiveness of the public entity, the Fire Department. In the long term, his speech is likely to help produce a fire department that is increasingly responsive to the needs of the citizenry. The timing of Moore’s speech certainly tilts in favor of the public nature of the speech; the speech occurred in response to two firefighters receiving injuries, one fatally, while fighting a fire. As to the manner, a portion of the speech was a bit acidic (“I told you so”). But the speech as a whole was directed more to the fire and the department’s staffing than it was to Moore’s past discussions with the City. The speech arose in the midst of a continuing dispute concerning the ability of the Fire Department to fight fires effectively. Moore hoped to spark a roaring and robust public debate concerning the issue. See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964) (“[D]ebate on public issues should be uninhibited, robust, and wide-open”). Thus, the interests of both Moore and the citizens of Kilgore in Moore’s speech are extremely significant. Moore’s speech does not merely touch upon matters of public concern in a marginal manner. His speech, considered as a whole, dwells at the center of the First Amendment, unlike in Connick v. Myers, 461 U.S. at 150, 154, 103 S.Ct. at 1691, 1693, (1983), in which the employee’s questionnaire distributed to coworkers touched upon matters of public concern only in a more limited sense. 2. City’s Interest in Effective Fire Department Services The other side of the Pickering/Connick balancing test focuses on the City’s interest in effective governance. To evaluate this element, we must examine the City’s justification for taking disciplinary action against Moore in relation to the City’s legitimate interest in the effective functioning of the public employer’s enterprise. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 2898-99, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 150, 103 S.Ct. 1684, 1691, 75 L.Ed.2d 708 (1983). Our inquiry focuses on the “effective functioning of the public employer’s enterprise. Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong [city] interest.” Rankin v. McPherson, 107 S.Ct. at 2899. In evaluating whether the City has met its burden of justifying its action, we consider the Rankin Court’s summary of several pertinent considerations: whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. Rankin v. McPherson, 483 U.S. 438, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). The City offers three reasons — insubordination, impaired arson prosectution, and a desire to disseminate accurate information — to justify its action in disciplining Moore for his speech. We will discuss each City interest in turn. The first offered reason, insubordination, requires some explanation. From Ron Cox’s viewpoint as the City Manager, Cox believed that he and Moore had reached an agreement during a meeting in Cox’s office on December 26, 1985 held at approximately 3:00 p.m. Cox believed Moore breached their agreement when Moore spoke on matters beyond an expression of condolence for the families of the deceased and the injured firefighters. In the disciplinary memorandum that Cox presented to Moore during the December 31, 1985 disciplinary meeting, Cox wrote, You have misrepresented to me your intentions. You had stated you would say no more than what we had discussed and agreed upon, and proceeded to discuss with the media what you considered the facts to be regarding the fire. This, again, is insubordination. For your information, insubordination is defined in the dictionary as “not being subordinate or obedient.” To be subordinate is to be “subject or subservient to another.” It is our responsibility and duty as employees to be subject to the rules and regulations of the City. Mr. Moore, you are an employee of this City. You are not expected to agree with every policy or every directive that is given to you, but you are expected to follow them. You have been supplied with a copy of the Fire Department Rules and Regulations and are expected to know what those rules and regulations are. In addition, you were directed verbally to refrain from any discussion of the events surrounding the fire. This flagrant insubordination cannot and will not be tolerated. As a result, disciplinary action must be taken. Cox disciplined Moore for what Cox ostensibly viewed as insubordinate speech. Mr. Cox also had transcribed the disciplinary meeting on December 31, 1985 during which Cox presented Moore with the memorandum quoted in part above. During the disciplinary meeting, Cox said, “If your personal opinion is contrary to [the City’s] policies, then you’ve got two choices, Gary, you can work within those policies and work internally within proper channels to express your opinions and to possibly get those changed. If that is needed. If they’re not changed and if you continue to be dissatisfied, you can leave.” [Plaintiff’s exhibit 3, page 6). For the City Fire Department to function efficiently, discipline and respect for management authority are important to the City. The City does have a legitimate interest in promoting a well-ordered fire department. But discipline for more abstract and attenuated management purposes that do not directly relate to the actual fighting of fires — the primary responsibility of the Fire Department — is an interest of lesser magnitude than discipline that relates directly to the business of fighting fires. The City presented no evidence that Moore’s insubordinate statement interfered in any way with the actual fighting of fires. A fire department should be a disciplined, well-oiled unit of firefighters because when firefighters arrive on the scene of a blazing, dangerous fire, the members of the unit must work together in an effective manner to protect the lives of the citizens and themselves and to extinguish the fire as soon as possible. Discipline directed towards the goal of fighting a fire effectively is the backbone of a high quality fire department. The type of discipline that the City imposed upon Moore is different. It concerns the City government as a whole organization and Moore as a city employee. In this situation, the concentration of discipline necessary to regulate employee behavior is significantly more diffuse. Some degree of discipline is desirable but strict, marine-like control is not necessarily appropriate to the running of a city as an organization. The key fact in this case is not that Moore is a firefighter; rather, it is that Moore is a city employee. Cox, the City Manager, attempted to maintain control over the City’s employees by rendering them “obedient” and “subservient.” If Moore had been a typist in the Fire Department, presumably Cox would have required the same degree of discipline and loyalty. As we stated before, the City has a legitimate interest in maintaining a disciplined force of City employees. But that interest is of lesser weight than the interest in discipline needed within the Fire Department itself, discipline that allows the members of the department to act as an effective fire-fighting unit when the moment arrives. Cox’s view, that Moore as a public employee could either function within the no-speech rules or Moore could leave, was unchallenged dogma for a large part of this century. Justice Holmes, then sitting on the Massachusetts Supreme Judicial Court, stated it best when he wrote “[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 518 (1892); see Connick v. Myers, 461 U.S. 138, 143-44, 103 S.Ct. 1684, 1688, 75 L.Ed.2d 708 (1983). An employee does not abandon his or her First Amendment rights when the employee agrees to work for a public entity. This balancing methodology that we utilize is meant to protect the employee’s speech regarding matters of public concern without overburdening the public employer’s ability to function effectively in its assigned tasks. Creating room for free speech in a hierarchical organization necessarily involves inconveniencing the employer to some degree. Speech concerning public affairs usually creates attendant inefficiencies in the running of the public entity. But efficiency is not an end-all and be-all goal of a democracy. Speech among the people helps to maintain the vitality of self-government. See Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed. 2d 708 (1983). For as Sir Winston Churchill stated: Many forms of government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time. Address by Sir Winston Churchill, House of Commons (Nov. 11, 1947), reprinted in The Oxford Dictionary of Quotations 150 (3d ed. 1979). Moore’s speech, which Cox views as insubordinate, does burden the efficient operation of the City as an organization. However, keeping in mind that Moore’s speech does not hinder the ability of the Fire Department to perform its primary task— fighting fires — we find that the City’s burden due to insubordination is minimal. In addition, the City presented no evidence, other than Cox’s views, that Moore’s arguable insubordination disrupted the work of the City. See Rankin, 107 S.Ct. at 2899. The second interest the City relies upon to balance out the weighty interest in Moore’s speech focuses upon arson. Cox summarized how Moore’s speech affected the City’s interest concerning an arson investigation. The portion of Moore’s speech that concerned Cox was: This was just an ordinary structure fire .... What’s going to happen when something major happens? We’re dealing with shortage of manpower. It may not have made a difference in B.J. Hawthorne’s heart attack. We really don’t know. But there was no doubt that it contributed to Capt. Jackson’s injury. Then during direct examination of Cox, Cox stated, I think a defense lawyer on behalf of that individual who’s charged with that would use Mr. Moore’s statement as an authoritative statement, someone on behalf of the City of Kilgore in some manner, as being one of fact that it wasn’t arson, it was ordinary, and would have a tendency to bias those people making a decision, whether it be a Jury or a Judge ... with regard to his contention that there’s a manpower shortage, I would think that, if I were a defense lawyer, I would be trying to mold the Jury’s mind to believe that the house was not destroyed by the arson alone, but by virtue of the fact that the City did not have enough people to handle the fire itself. Tr. at 54-55. The City has an interest in promoting its ability to prosecute an arson case. Any damage Moore’s “ordinary structure fire” comment could inflict upon a potential arson prosecution by the City would be very minimal. In regard to the phrase “ordinary structure fire,” Moore’s explanation of his usage could certainly be brought out by the prosecutor in an arson case to rebut whatever defense inference was available. Moore stated, on direct examination in this case, “What I’m referring to as an ordinary structure fire was that this was not a plant or a major structure of any kind. It was a medium size house. It was not an oil related fire. It was just, as far as I’m concerned, an ordinary structure fire, which would be an ordinary house fire.” As to Moore’s manpower shortage comment, this comment could slightly affect an arson prosecution, but such an interference would be insubstantial. Any arson prosecution will be won or lost on the physical evidence (presence of an incendiary agent, damage to the structure as evidence of the cause of the fire, and motive and opportunities of the suspect). Moore’s comment concerning the shortage of firefighters would not substantially interfere with the City’s prosecution of an arson suspect. The City’s interest in a potential arson prosecution is a flicker of a candle’s flame compared with the radiating incandescence of Moore’s speech. The third interest the City asserts as legitimate is its desire to control the flow of information so that the City can ensure that speakers disseminate only “accurate” information. Cox stated on recross-examination that “all of the statements [by Moore] were important, because of the impact they have on the public’s perception of what happened; ... [if] it turned out that Mr. Moore didn’t have the facts and if we’re going to be quoted, we need to be accurate.” (Tr. at 73). Two considerations militate against the City’s third proffered interest. The first is a consideration of timing. The second consideration concerns the interplay between the content of Moore’s speech and the City’s burden of proof. The City’s interest in an “accurate” flow of information is not absolute and does not enjoy durational eternity. Before Moore spoke the City held a press conference concerning the fire at which the City had ample opportunity to express its official view of the fire. In this case, the City’s press conference occurred the next morning, December 27, 1985, after the fire. Moore’s different angle on the same occurrence is precisely what encompasses the thrust of the public’s interest in Moore’s speech. Thus, any legitimate government interest in controlling the flow of accurate information dissipates after the public entity has had an opportunity to present its view, an opportunity that the City utilized in this case. As to the second point, that the City viewed some of Moore’s comments as misstatements, the New York Times Co. v. Sullivan standard applies. Pickering v. Board of Education, 391 U.S. 563, 572-74, 88 S.Ct. 1731, 1736-37, 20 L.Ed.2d 811 (1968); see generally New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Before the City’s interest in the accurate dissemination of information may carry any weight in the Pickering/Connick balance, the City must prove that Moore made false statements of fact with either knowledge of their falsity or with reckless disregard of their truth or falsity. Pickering, 391 U.S. at 573-74, 88 S.Ct. at 1737. The City made no such showing in this case. It introduced no evidence that even begins to approach the New York Times standard. Thus, we accord no weight under the Pickering/Connick balancing test to the City’s proffered interest in the control of the flow of information following the fire. 3. Balancing the Interests We have examined the interests of the public and Moore in Moore’s speech, which addressed matters of public concern. Moore’s speech is of significant importance concerning the people’s ability to govern themselves in the City of Kilgore, Texas. Now we must decide whether the City’s three asserted interests, as a whole, outweigh the great magnitude of the interests of both Moore and the public in Moore’s speech. The insubordination interest, in regard to the City as an entity, burdens the efficient operation of the City as an organization, but the burden is minimal. The interest concerning the City’s ability to prosecute an arson case also has merit, but it does not approach a level of substantiality by itself that significantly affects our inquiry. The third proffered interest — the desire to control the flow of information— has no weight in this case. Combining the City’s interests concerning insubordination and arson, we find that the side of the scales containing the interest in Moore’s speech is firmly planted on the ground while the City’s two interests dangle high above. The Pickering/Connick balancing test weighs heavily in Moore’s favor. The City does not dispute that it disciplined Moore based on the content of his speech. (Appellee’s brief at 7). Thus, we conclude that Moore was disciplined for expressing constitutionally protected speech in contravention of his First Amendment freedom of speech rights. We reverse the judgment of the district court on this issue. The district court, because of its holding, did not have to reach the issue of appropriate relief. Thus, we remand the case to the district court for a trial on the issue of appropriate relief. We intimate no view concerning what the correct measure of damages, beyond nominal damages, would be in this case. See Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 2544-46, 91 L.Ed. 2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 254-59, 98 S.Ct. 1042, 1047-50, 55 L.Ed.2d 252 (1978). II. Facial Validity of Kilgore Fire Rule 4.2A(40) In our resolution of this case, we encounter a wicked wicket, which engagement we enter into with some trepidation. It is at this wicket that I must now part company with my brethren. As I do so, I am aware that the croquet balls of constitutional adjudication can be quite heavy, therefore, I shall try to use a light mallet to prevent the balls from leaving our grassy court. In addition to his claim that the City of Kilgore Fire Department Speech Rule 4.2A(40) was unconstitutionally applied to him, Moore contends that the Rule is facially invalid. Moore asked the district court to enjoin the use of the Rule in his complaint, when in his prayer for relief, he included requests for “preliminary and permanent injunctions ... prohibiting enforcement of Kilgore Fire Department Regulation 4.2A(40)[.]”. If the district court had granted Moore the requested relief, no one could ever be restrained or punished for disobeying the Rule because the Rule would be void. The district court ruled against Moore on this issue of facial invalidity, and the district court’s ruling is affirmed by Judge Higginbotham’s opinion for the majority. The majority offers alternative holdings for its conclusion: first, that Moore has not properly presented his facial attack on the Rule for appellate review; and second, that assuming the issue is properly presented, that Moore, because he prevailed upon his claim that the Rule was unconstitutionally applied to him, does not have standing to assert a facial challenge to the Rule. Instead, the majority believes that Moore has “footed his facial challenge to the Fire Department Rule entirely upon grounds of overbreadth” as the Rule applies to “him— the plaintiff who is before us.” The majority then concludes that in such a situation, it is inappropriate for a court to entertain a facial challenge based on overbreadth. The majority errs for two reasons. First, I believe Moore has properly presented the issue of the facial invalidity for our consideration. Second, we should strike down the Rule as a prior restraint which is invalid in every application. The issues that lie before us are complicated and, at times, wind around one another. Therefore I provide a roadmap — although perhaps one not equivalent in topographical precision to a Rand McNally version — which should be helpful for the jalopy driver and Indianapolis racer alike. First, I discuss the presentment issue. Second, I examine the underlying values embodied in the First Amendment (truth, knowledge, and tolerance). Third, I unwind the three threads of First Amendment jurisprudence contained in the district court’s opinion and Moore’s appeal (generic overbreadth, substantial overbreadth doctrine, and prior restraints). Finally, I consider the Kilgore Rule in light of all the foregoing considerations. The framework of analysis by which I consider the Kilgore case is close to outcome determinative. This observation is only true because, after examining the entangled threads of First Amendment jurisprudence in light of the framework surrounding the Kilgore Rule, it becomes apparent that the Kilgore Rule constitutes an unconstitutional prior restraint. The majority commits a pivotal error when it treats this prior restraint as an after-the-fact sanction. From this single, threshold mistake flows the body of my disagreement with the majority. A. Presentment of the Issue of Facial Validity Concerning the facial invalidity of the Rule, the majority finds that Moore has presented to this Court only one argument: that the Rule is invalid because of the overbreadth doctrine. As a consequence, the majority does not believe that Moore has presented an argument that the Rule is a prior restraint. Moore’s briefs are not extensive concerning the facial invalidity of the Rule. However, Moore has properly presented the issue of whether this Rule is an unconstitutional prior restraint at a sufficient level of generality to put the City on notice of the argument. Moore refers to the problems inherent in a prior restraint when he discusses the city’s discretion and the muzzling effect of the Rule. Moore also generally attacks the district court’s decision, which, I should add, also considers the Rule with respect to its prior restraint feature. As I will discuss in Part II-C infra, confusion necessarily results from the linguistic overlap of the generic, descriptive use of the term “overbroad” with the First Amendment Doctrine of “substantial over-breadth.” The district court’s use of the word “overbroad” is ambiguous regarding whether the court used the term in its generic sense, specific doctrinal sense, or both senses. Presented with an entangled area of constitutional jurisprudence, Moore probably has attacked the district court’s disposition in a less than analytically ideal manner. Given the confusing nature of these jurisprudentially tangled threads of analysis, however, which I shall discuss more fully infra, I cannot agree with the majority that Moore’s alleged error in analytical precision should foreclose this court from reviewing the district court’s decision concerning the facial validity of the Rule. In my view, because of the complexities of this area, common law-like assignments of error are not necessary for an issue to be properly presented to the appellate court. Moore has attacked the Rule on its face, requesting specific injunctive relief in the process concerning the facial status of the Rule. The use of the ambiguous term “overbroad,” which Moore appears to have used in its generic, descriptive mode, coupled with the discussion in his briefs that the “rule contains no guidelines for the exercise of the chiefs discretion in deciding what speech to authorize,” and that Moore “is and has been denied authorization to make any public statements concerning city business (including future statements of any sort),” should be enough to present the entangled problems of: (a) a prior restraint; (b) the legal doctrine of substantial overbreadth; and (c) the descriptive notion of a overbroad rule. I believe we are fully entitled to consider all relevant issues in Moore’s case as they may relate to the district court’s judgment that the Rule is facially constitutional. A prior restraint, enshrined in a written rule, should not live on because able advocacy becomes imperfect as a result of judicial and jurisprudential confusion. B. Values Which the First Amendment Embodies As a method of adjudication, invalidating an entire rule as facially unconstitutional is certainly “strong medicine.” See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) (attacking statute on its face using doctrine of substantial overbreadth). A court which utilizes such medicine should consider the patient’s ailment and risks of the medicine carefully before administering the dosage. However, when the ailment appears to be fatal, strong medicine may be the best prescription for the patient. The health of the patient — freedom of speech — should be a court’s primary focus. Both action and restraint by a court integrally affect First Amendment values. Failure to administer strong medicine when it is called for may undermine First Amendment values just as legitimately striking down a rule will nourish those same values. Thus, in examining the legal doctrines which criss-cross the First Amendment, it is important to keep one’s eye always on the underlying reasons for freedom of speech so that the doctrines are not rent from their foundations. Traditionally, “free speech is protected because it has values; it springs from the age of enlightment out of which the spirit of the American Revolution came. The values include truth-seeking and knowledge-advancement, as a societal object, as well as to a lesser degree perhaps, self-fulfillment on the part of the individual speaker [autonomy and individual dignity].” Oakes, Tolerance Theory and the First Amendment, 85 Mich.L.Rev. 1135, 1137 (1987). Citizens in a democracy need to hear about problems that their government encounters. To assist people in making informed decisions, information must be made public for citizen deliberation. Purely “political” words are not the only words of truth and knowledge that the public needs or desires to hear. What is personal for one person is political for another. Thus, for the people to be able to judge for themselves the value or usefulness of particular speech, the people need to hear the actual words as spoken by the speaker, unfiltered and unabashed. Censorship spawns two great evils: distortion through the filtering of speech to conform with the censor’s vision of truth and knowledge, and the chilling of potential speakers, especially the timorous who self-restrain valuable words from flowing with slight pressure from external sources. In addition, there is also “a crucial social role for the free speech principle in the context of the assumed reality of an impulse to intolerance.” L. Bollinger, The Tolerant Society: Free Speech and Extremist Speech in America 106 (1986). Free speech provides “a method of addressing a ubiquitous social incapacity, [the incapacity within all of us of intolerance].” Bollinger at 107; see Oakes at 1139. Speech that an official deems worthy of suppression commonly tends to criticize the official or the governmental body in some way. Humans dislike self-directed criticism. The intolerance within all of us can oversuppress speech which is otherwise useful either to the speaker or to a listener. The desire to suppress unpleasant or critical speech is almost irrepressible. As a society, and as a judicial body within our society, we should attempt where legitimately possible to encourage self-restraint rather than intolerance in regard to speech. See L. Bollinger, The Tolerant Society: Free Speech and Extremist Speech in America, 243-45 (1986). Professor Bollinger sees free speech as “standpng] symbolically as the gateway to social intercourse.” Id. at 238. “American society has evolved with this principle according to Bollinger because it is a capitalist economic society, with pervasive bureaucratic and professional systems, where personal preferences tend to be submerged; because it is composed of large immigrant groups of many different cultures and religions; because it is stable with a relatively homogeneous two-party system not likely to be supplanted by splinter, deviant groups. The First Amendment has taken on meaning, he again reminds us, beyond merely preserving meritorious speech or preserving an area of freedom for each individual beyond the reach of the State, a meaning which can be seen in the context of extremist speech cases. The meaning is that free speech principles enable us to see the elements in our thinking that distort our judgment in drawing the lines that inevitably have to be drawn in a pluralistic society. Free speech is thus a means, as well as an end.” Oakes, Tolerance Theory and the First Amendment, 85 Mich.L.Rev. 1135, 1143-44 (1987). Fostering tolerance, one hopes, also renders the impulse to intolerance less attractive in other, nonspeech areas. Tolerance of speech has the effect of spilling over into other areas of our pluralistic society, encouraging tolerance between people concerning the differences among us. C. Three Threads of First Amendment Jurisprudence: Generic Overbreadth, Substantial Overbreadth Doctrine, and Prior Restraints. In one, short paragraph, the district court’s analysis of Moore’s facial challenge to the Rule interweaves three different yet interrelated threads of First Amendment jurisprudence. The district court’s language — “[t]he rule on its face does not sweep beyond the constitutional barrier”— evidences one thread which encompasses the descriptive, generic use of the word “overbroad” to mean something which stretches too far: in other words, a statute that is not narrowly tailored. A second thread, found in the district court’s conclusion of law flowing from the one paragraph discussion, reads: “Rule 4.2A(40) is not facially unconstitutional for overbreadth.” The district court possibly used the word “overbroad” to mean the doctrine of substantial overbreadth, which is sometimes viewed as a third party standing notion. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). A third thread invokes the whole substantive area of prior restraints as evidenced by the district court’s words “[t]he regulation requires clearance through department channels before releasing information....” 1. Generic “Overbreadth” Versus “Substantial Overbreadth” Doctrine Because of the linguistic overlap between thread one and thread two, the district court’s use of word “overbroad” introduces an ambiguity into the district court’s opinion. One may read the opinion to be discussing either thread one — generic use of the word overbroad — or thread two — the legal doctrine of substantial overbreadth— or both notions. In Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 962, 104 S.Ct. 2839, 2851-52 n. 13, 81 L.Ed.2d 786 (1984), the Supreme Court discussed this sort of ambiguous use of the word “overbroad”: The dissenters appear to overlook the fact that “overbreadth” is not used only to describe the doctrine that allows a litigant whose conduct is unprotected to assert the rights of third parties to challenge a statute, even though “as applied” to him the statute would be constitutional. E.g. New York v. Ferber, [458 U.S. 747, 768 n. 21, 102 S.Ct. 3348, 3360, 73 L.Ed.2d 1113 (1982)]. “Overbreadth” has also been used to describe a challenge to a statute that in all its applications directly restricts protected First Amendment activity and does not employ means narrowly tailored to serve a compelling governmental interest, [citations omitted; cf. City Council of Los Angeles v. Taxpayers For Vincent, [466 U.S. 789, 797, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984)] (recognizing the validity of a facial challenge but suggesting that it should not be called ‘overbreadth’) [citations omitted]. Thus, the Supreme Court in Munson recognizes that the words overbroad and over-breadth have been confused but properly should be separated. In City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797, 104 S.Ct. 2118, 2124, 80 L.Ed. 2d 772 (1984), the Supreme Court articulates two quite different ways by which a court may declare a statute or rule facially invalid. The first reason, which has deep historical roots in constitutional adjudication, is because the statute “is unconstitutional in every conceivable application.” City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 2124, 80 L.Ed.2d 772 (1984); see City of Lakewood v. Plain Dealer Publishing Co., — U.S. -, 108 S.Ct. 2138, 2143-45, 100 L.Ed.2d 771 (1988) (4-3 majority opinion; “facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers”). The second reason for a court to strike down a statute on its face is because the statute “seeks to prohibit such a broad range of protected conduct that it is unconstitutionally ‘overbroad.’ ” Vincent, 466 U.S. at 796, 104 S.Ct. at 2124. In Vincent, the Supreme Court also stated, [t]he seminal cases in which the Court held state legislation unconstitutional ‘on its face’ did not involve any departure from the general rule that a litigant only has standing to vindicate his own constitutional rights. In Stromberg v. California, 283 U.S. 359, 75 L.Ed. 1117, 51 S.Ct. 532, 73 ALR 1484 (1931), and Lovell v. Griffin, 303 U.S. 444, 82 L.Ed. 949, 58 S.Ct. 666 (1938), the statutes were unconstitutional as applied to the defendants’ conduct, but they were also unconstitutional on their face, because it was apparent, that any attempt to enforce such legislation would create an unacceptable risk of suppression of ideas. In cases of this character a holding of facial invalidity expresses the conclusion that the statute could never be applied in a valid manner. Vincent, 466 U.S. at 797-98, 104 S.Ct. at 2124 (footnotes omitted); see City of Lakewood, 108 S.Ct. at 2145; Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 1921, 95 L.Ed. 2d 439 (1987). The Munson court, after pointing out the ambiguous use of the word overbroad, went on to state that it “was on the basis of the latter failing [overbroad because in all applications a statute directly restricts protected First Amendment activity and does not serve a compelling governmental interest] that the Court in Schaumburg [v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980) ] struck down the Village ordinance as unconstitutional. Whether that challenge should be called ‘overbreadth’ or simply a ‘facial’ challenge, the point is that there is no reason to limit challenges to case-by-case ‘as applied’ challenges when the statute on its face and therefore in all its applications falls short of constitutional demands.” Munson, 104 S.Ct. at 2852 n. 13 (1984). Under Vincent, Munson and the string of cases they rely upon, if a rule is unconstitutional in all its applications, a plaintiff may challenge the rule as unconstitutional on its face. Under the substantial over-breadth doctrine, a person whose speech may be prohibited constitutionally may nevertheless prevail upon a facial challenge if the statute covers too much speech, and the statute’s provisions are unseverable. See Broadrick v. Oklahoma, 413 U.S. 601, 611-13,