Concurring and Dissenting.
Although the facts in this case do not present a sympathetic basis on which to analyze First Amendment principles, it is an inevitable fact that they seldom do. See, e. g., Collin v. Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 439 U.S. 916, 99 S.Ct. 291, 58 L.Ed.2d 264 (1978). Those persons who voice acceptable viewpoints or who are able to articulate their goals and interests in terms which are either shared or accepted as legitimate by those who shape official policy are seldom in need of the Amendment’s support. It is when we must face the unpopular or distasteful expression that the concept of free speech needs its most vigilant protection. See, e. g., Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1359 (1931).
*860I.
The overbreadth doctrine represents a judicial recognition that overbroad laws which may deter constitutionally protected expression by those not before the court must be capable of challenge by others in order to avoid the possibility that the unconstitutional effect of such laws will escape judicial review. The recent limitation of the doctrine to those statutes or rules which are “substantially overbroad”, Broa-drick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), forces us to consider how such substantiality can be determined. I cannot quarrel with the majority’s identification of the four relevant factors: the number of valid applications, the historic or likely frequency of conceivably impermissible applications, the nature of the activity or conduct sought to be regulated, and the nature of the state interest underlying the regulation. If the majority’s analysis of the last factor had been limited to the state interest in regulating the conduct of city firemen, which was the only application made as to Aiello in the disciplinary context, there would be no need to write separately on this issue.
Unfortunately, in its analysis of the state interest factor, the majority has digressed on an issue not presented by the facts, i. e. “the discharge of public employees on the basis of speech”, and has reiterated the dictum in Gasparinetti v. Kerr that public employees enjoy narrower First Amendment rights than the public at large. Since the majority has inserted this issue into its analysis, some comment on the cases cited is necessary in order to forestall us from falling into the unjustifiable pattern whereby dictum, simply because it has been repeated frequently, is given the force of precedent.
The Supreme Court has consistently upheld the principle that public employees are entitled to full protection of their rights under the First Amendment. In Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), the Court stated, “To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court.” This holding was reinforced last term when the Court held “This Court’s decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Givhan v. Western Line Consolidated School District, 439 U.S. 410, 414, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979).
The cases cited by the majority in which action was taken against public employees on the basis of speech represent very limited incursions into this normally protected area which were sanctioned only because of overriding and weighty countervailing policies. In Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), defamatory statements made by an OEO employee about his superiors “without any proof whatsoever and in reckless disregard of the actual facts”, id. at 137, 94 S.Ct. at 1636, were held to constitute cause for dismissal under the Lloyd-La Follette Act, which was construed as being directed at employee behavior, including speech, detrimental to the efficiency of the employing agency. In CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973), the Hatch Act prohibition against partisan political activities by federal employees was sustained as necessary to efficient and fair Government operation. The Court noted that the Act specifically provides that the employee retains the right “to express his opinion on political subjects and candidates.” Id. at 576, 93 S.Ct. at 2895.
The majority cites no Supreme Court case to support its statement that “in a professional fire department, the area of unregulable speech may be somewhat less available than for public employees generally” because of the presence of “particular con*861cerns of efficiency, discipline and public trust.” At p. 855. In fact, this court’s opinion in Gasparinetti v. Kerr, 568 F.2d 311 (3d Cir. 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2232, 56 L.Ed.2d 401 (1978), rejected the view of the dissenting judge there that “the need for police discipline and espirit de corps [sic]” could be seen as an excuse for abridging First Amendment rights. Id. at 322. Instead, the majority of the panel in Gasparinetti referred to the Supreme Court’s statement in Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967), that “policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights” (cited at 568 F.2d at 316).
The dissent in Gasparinetti relied on Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), where the conviction of an army physician by general court-martial for, inter alia, urging enlisted men to disobey orders to go to Vietnam was upheld in a majority opinion replete with references to the distinction between military and civilian society. For example, the Court stated “the military is, by necessity, a specialized society separate from civilian society,” id. at 743, 94 S.Ct. at 2555; “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty,” id. at 744, 94 S.Ct. at 2556 (quoting Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047-1048, 97 L.Ed. 1508 (1953) (plurality opinion)); and most significantly, “In civilian life there is no legal sanction — civil or criminal — for failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer,” id. at 749, 94 S.Ct. at 2558. However, any implication that the restriction on speech sustained as to military personnel can be extended to civilians because they work in a department, such as a fire department, which requires discipline and a uniform while on duty would portend a dangerous inroad on one of our most cherished freedoms.
The majority’s holding that the regulation is not overbroad can be supported on a much more limited basis. Here, as in Broa-drick, appellant has been charged with conduct, not speech, under a regulation which is not directly related to speech, and the state interest in regulation of the conduct of its firemen, particularly the conduct in question, is apparent. Therefore the regulation, like the statute in Broadrick, cannot confidently be invalidated on the ground that it may deter speech to some unknown extent since appellant has failed to produce any evidence that the regulation has, in fact, been applied to trench upon speech.
II.
Aiello also claimed that he was unconstitutionally chilled from protected speech during the period of his probationary period which lasted more than two years. The trial court prevented the jury from making any determination on this claim. Instead, it granted summary judgment for the City on this claim on the basis of the following analysis:
In order to prevail on a claim of “chill” concerning protected First Amendment activities and speech, a party must first establish that it has suffered actual injury or harm. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 2325, 33 L.Ed.2d 154 (1972); accord Paton v. LaPrade, 524 F.2d 862, 873-74 (3d Cir. 1975); cf. O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). Given this requirement, Aiello’s vague allegations of subjective chill, perhaps questionable on their face, and further undermined by his testimony which documented the absence of a specific inhibiting effect exerted by the Rules on his activities, are insufficient to sustain a claim of unconstitutional chill. Accordingly, defendants’ motion for summary judgment on this issue is granted.
426 F.Supp. 1272, 1294-95 (D.Del.1976) (footnotes omitted).
*862The trial court misconstrued the purport of the Court’s decision in Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). In Laird, plaintiffs brought a class action seeking declaratory and injunctive relief alleging that their rights were being invaded by the Department of the Army’s alleged “surveillance of lawful and peaceful civilian political activity.” Id. at 2, 92 S.Ct. at 2320. The appellants were private citizens and organizations who, their lawyer admitted, were not “cowed and chilled”, see 444 F.2d 947, 959 (D.C.Cir.1971) (concurring and dissenting opinion), but sought to represent a class of millions of Americans who were not as “courageous.” It was under those circumstances that the Supreme Court held plaintiffs lacked standing because there was no justiciable controversy on the basis of the record in that case. It was in that context that the Court made the statement misapplied by the trial court:
Allegations of a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm; “the federal courts established pursuant to Article III of the Constitution do not render advisory opinions.” United Public Workers v. Mitchell, 330 U.S. 75, 89, [67 S.Ct. 556, 564, 91 L.Ed. 754] (1947).
408 U.S. at 13-14, 92 S.Ct. at 2325. The Court did not state nor suggest that an individual who claims an actual chill based on the reasonable possibility that a regulation will be applied directly to that individual lacks standing. Quite the contrary! The Court distinguished the situation it was faced with in Laird from those cases in which “the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging,” id. at 11, 92 S.Ct. at 2324, citing as examples of that line of cases, Baird v. State Bar of Arizona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d 639 (1971); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964).
It is impossible in this case to ignore the fact that Aiello was “presently or prospectively subject to” Rules 169.16 and 169.23 because an explicit condition of his probation was that “If in the event Fireman Aiello appears in violation of either of the two charges which he was adjudged guilty by the Trial Board . . during this stipulated probationary period, the Trial Board orders that Fireman Aiello be dismissed.” The two charges were violation of Rules 169.16 and 162.23, which proscribe “conduct unbecoming a fireman and a gentleman whether on or off duty” and require firemen to “be governed by the customary rules of good behavior observed by law-abiding and self-respecting citizens.” The Fire Chief at the time of Aiello’s arrest, his successor, and a member of the Trial Board all testified that Rule 170, which contained 54 subparts applicable to both speech and conduct, provided guidance for the interpretation of Rule 169.16. Aiello challenged particularly Rule 170.7 proscribing “gossiping about a member of the Department of Public Safety concerning either his personal character or conduct to the detriment of the member”, and Rule 170.8 proscribing “criticizing the official action of a superior officer.” The latter was almost identical to the regulation invalidated as overbroad in Gas-parinetti v. Kerr, but the trial court denied Aiello’s motion for reconsideration based on that decision.
In its reliance on Laird, it is evident that the trial court confused Aiello’s standing with the merits of his claim. Aiello testified as to the direct effect on him of the terms of the probation, which was certainly sufficient to satisfy standing. He testified that he felt as though he “had to sit in the house and be handcuffed to a chair and not say a word” while on probation. Because of the threat of automatic dismissal, he said he “felt as if there was a cloud hanging over my head.”
It is unclear on what legal basis the majority affirms the trial court’s grant of summary judgment against the plaintiff on this *863claim. The majority states that it agrees with the district court that there was no genuine issue of material fact, but ignores the fact that the district court applied an incorrect legal standard to the crucial issue of identification of the relevant issue of material fact. It is not clear whether the majority, by its failure to comment on this issue, is sub silentio accepting or rejecting the district court’s holding that Aiello had no standing because his claim of chill was too “subjective,” It would appear that what the majority is doing is evaluating the evidence to determine the credibility of Aiello’s claim that he was, in fact, chilled. This is precisely the inquiry which a court should not make on a motion for summary judgment.
The trial court and the majority hone in on Aiello’s inability to articulate with more specificity the chill effect, and apparently consider as trivial his alleged constraint regarding the use of “kitchen talk”, i. e. use of vulgar language. It is, of course, true that had Aiello been more effectively prepared for this question at his deposition, he might have been able to describe in more appealing terms the constraints which he felt. But even “opprobrious words or abusive language” are subject to First Amendment protection, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), as is the use of “obscene or opprobrious language,” Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). See also Rosenfeld v. New Jersey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d 331 (1972); Lewis v. City of New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972). Federal judges may have more fastidious tastes than the ordinary citizen, but Aiello’s First Amendment rights to use the language he chooses cannot be summarily rejected because his inclination runs towards his own use of such language rather than reading it in the works of, for exam-pie, Henry Miller. See, e. g., Attorney General v. Book Named “Tropic of Cancer,”345 Mass. 11, 184 N.E.2d 328 (1962).
In any event, Aiello also claimed that he was inhibited from complaining about his treatment and from appealing the decision of the Trial Board. The fact that he did complain to his union and wrote to the fire chief requesting that he be compensated for reporting time does not mean a jury would not have been able to find that he would have complained more vigorously about his treatment. Considering the discipline imposed, 2000 hours of work without compensation, one might reasonably have expected some more vigorous complaint than that in which he engaged.
Under the interpretation of Rule 56 consistently applied by this court, summary judgment could not be granted unless there was no issue of material fact. In the eight months since I have joined this court, there have been numerous decisions reversing the grant of summary judgment by district judges because there was an issue of material fact which precluded resort to Rule 56 to short circuit one of the party’s right to a trial.1 These cases covered the gamut of issues which appear before us, from prisoners’ rights to patent fraud. It is unfortunate that we divert from this tradition in a case where the underlying claim is based on the right which many believe ranks among the most fundamental of those protected by our Constitution.
“In deciding a motion for summary judgment, every reasonable inference must be given to the party opposing the motion, here [Aiello].” See Sanford v. O’Neill, 616 F.2d 92, 96 (3d Cir. 1980); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 789 (3d Cir. 1978). The trial court, substituting his own judgment for that of the jury, decided that the chilling effect was not real *864but only “subjective.” That, in itself, is a patent contradiction in terms because the “real” and the “subjective” are not mutually exclusive. Chill to an individual can only be subjective. In effect, the trial judge decided that he did not believe Aiello. The majority has engage in a similar weighing of the evidence. Although it purports to decide that Aiello’s own testimony “undermines the allegation in his pleadings of a chilling” effect, it ignores Aiello’s own testimony of such an effect, apparently because it, like the trial court, does not believe Aiello. It may be likely that under the circumstances of this case a jury would have decided the same. But Aiello was entitled to the opportunity to present to a jury his evidence of chill. Men and women who do not have the lifetime tenure of federal judges to protect their expressions might have felt more empathy with the situation of an individual who claimed a generalized inhibition regarding his language and his expressions because he feared dismissal pursuant to the indefinite rules which were being applied to him. I believe our Constitution gives Aiello the opportunity to present this claim to his peers. I would therefore reverse the grant of summary judgment on this ground.
. See, e. g., DeLong Corp. v. Raymond International, Inc., No. 79-1509, 622 F.2d 1135 (3d Cir. April 14, 1980); Small v. Seldows Stationery, No. 79-1719, 617 F.2d 992 (3d Cir. March 21, 1980); Sanford v. O’Neill, 615 F.2d 92 (3d Cir. 1980); Gavin v. People’s Natural Gas Co., 613 F.2d 482 (3d Cir. 1980); Rhodes v. Robinson, 612 F.2d 766 (3d Cir. 1979); Perks v. Firestone Tire & Rubber Co., 611 F.2d 1363 (3d Cir. 1979); Anthony v. Ryder Truck Lines, Inc., 611 F.2d 944 (3d Cir. 1979); Remak v. Quinn, 611 F.2d 36 (3d Cir. 1979); Suskind v. North American Life & Casualty Co., 607 F.2d 76 (3d Cir. 1979).