(dissenting).
I.
PRELIMINARY COMMENTS ON THE TRIAL COURT’S FINDINGS AND THE MAJORITY OPINION
I respectfully dissent. In doing so I do not question the findings of the trial court. I do not, however, agree with the weight that has been given to some of the evidence, including the finding that the letter was disruptive and divisive. Undoubtedly the letter had some effect on the relationships between officers and men, particularly the officers who were the leaders in the forming of the officers’ union. We are aware that this is always a delicate relationship and that it first became imbalanced when the officers formed the separate union which necessarily was close to the administration and thus tended to isolate the organization of firefighters — the troops. The writing of the letter in question was retaliatory and it necessarily had some disruptive effect in the organization as a whole, but this is not the test. Here there are competing interests. Appellant was advancing the interest of his group, and his opposition to the formation of an organization which would weaken and undermine the organization of which he was president was entirely valid; thus the only valid complaint which could be made was regarding the means used in *1155exercising the undoubted right of appellant to speak up. In this connection one other preliminary matter should be mentioned: that the trial court found that the words used, though sarcastic and in bad taste, were not to be accepted in any literal sense and that at most they impugned disloyalty on the part of the officers who had organized the officers’ union to the members of the firefighters, their men. When viewed in this light, the entire controversy emerges as a lot of todo about nothing, and it seems clear that the imposition of the sanction was not justified. Now, though, the case takes on a much more substantial posture in that appellant here contends for the support of an underlying principle: the independence of his institution and the preservation of the right of its spokesman to speak in its behalf.
Neither the administration, the trial court, nor the majority of judges here gives sufficient weight to the constitutional right of the appellant to speak in the course of advancing the interest which he represented. True, both the trial court and the majority mention the First Amendment, but give it little or no weight. Furthermore, the majority opinion declares that the Supreme Court in Pickering v. Board of Education of Twp. High School Dist. 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), refused to equate the test enunciated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 262 (1964) to the present situation; New York Times v. Sullivan held in essence that a public official could not recover in defamation for statements directed at him except when the statements were shown to have been made with knowledge of their falsity or with reckless disregard of whether false or not.
Our reading of the. opinion of the Supreme Court in Pickering v. Board of Education, supra, differs from that of the majority. The Court there says that criminal sanctions and damage awards are somewhat different in this context and remarks made by subordinates to superiors are not to be equated with suits for libel in any across-the-board manner. The Court went on to say that where the employment is insubstantially involved in the public communication the speaker enjoys the status of a member of the general public. Continuing, the Court went on to include the New York Times standards when it said:
In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. * * 391 U.S. at 574, 88 S.Ct. at 1738.
In our case there is also an insulating factor and that is that appellant was wearing, so to speak, the union president hat when he wrote the editorial. He did not purport, in other words, to speak as a fireman and was not criticizing either Fire Chief Walker or any of the officers in the area of their firefighting abilities. Still another insulating factor is that he was speaking to a limited group through the mimeographed newsletter which was used for this purpose. The statement made was not for the eyes of the general public, and this kind of publication is universally recognized as conditionally privileged. The rationale is that the author is speaking on behalf of and is engaged in advancing the group interest.1
*1156II.
THE STANDARD OF EVALUATION IN THE FREEDOM OF SPEECH CASES
Unquestionably Fisher was suspended and thus fined for speaking out, and without doubt the district court believed that the maintenance of order and good discipline in the fire department fully justified the action which was taken. However, such a standard is no longer approved by the Supreme Court. This involves the idea enunciated by Justice Holmes while on the Supreme Judicial Court of Massachusetts. He said that one may have a constitutional right to expression, but that he does not have a constitutional right to be a policeman. See McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 519 (1892).
The extent of the development of the law governing the rights of public employees to speak freely is summarized in several articles.2
The upshot of the numerous decisions through the years is that a public employee enjoys the rights of freedom-of expression conferred by the First Amendment and he is entitled to his protection.3
Pickering is, of course, the most significant of the cases cited. There a school teacher wrote to the local newspaper following a bond election and in his letter was highly critical of the school government. He was dismissed from employment on grounds similar to those adopted here. It was held that his letter “unjustifiably impugned the ‘motives, honesty, integrity, truthfulness, responsibility and competence’ of both the Board and the school administration” and it “would be disruptive of faculty discipline, and would tend to foment ‘controversy, conflict and dissension’ among teachers, administrators, the Board of Education, and the residents of the district.” (88 S.Ct. at 1734). The Illinois Supreme Court affirmed the board, but the United States Supreme Court reversed.
It was conceded in the Court’s opinion that the Pickering letter was sarcastic and made very serious charges, including one that the board had built an athletic field out of bond funds, even though this item was not included in the board authorization. He charged the school board with creating a “totalitarian atmosphere” and of lying to the public in an effort to persuade them to support high school athletics.
*1157The Supreme Court acknowledged that some of the statements were erroneous, but concluded that they had no tendency to impede the classroom performance of the teacher and refused to give effect to the contentions of the board that Pickering’s letter caused considerable discontent and disruption in the academic community as well as the community at large.
The width, breadth and impact of the rights guaranteed by the First Amendment are lined out by Mr. Justice Brennan in New York Times, supra, and are worth repeating here:
The First Amendment, said Judge Learned Hand, “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.” United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandéis, in his concurring opinion in Whitney v. California, 274 U.S. 357, 375-376, 47 S.Ct. 641, 648, 71 L.Ed. 1095, gave the principle its classic formulation:
“Those who won our independence believed * * * that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.
******
The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” N.A.A.C.P. v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405. (Emphasis supplied).
376 U.S. at 270-271, 84 S.Ct. at 720-721.
We gather further from the cases that the fact that appellant was a fireman and a union president in no way diminishes his constitutional right; It was pointed out in Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (1940):
The dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. .* * * Free discussion concerning the conditions in industry and the causes of labor disputes appears to us indispensable to the effective and intelligent use of the processes of popular government to shape the destiny of modern industrial society.
See also Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), reh. den. 323 U.S. 819, 65 S.Ct. 557, 89 L.Ed. 630, wherein it was said:
The right ... to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as *1158part of free speech, but as part of free assembly. 65 S.Ct. at 324.
This court has also had occasion to recognize that there is a constitutional right to disseminate facts concerning a labor dispute. See Slater v. Denver Building & Construction Trades Council, et al., 175 F.2d 608 (10th Cir. 1949), and Taxi-Cab Drivers Local Union No. 889 v. Yellow Cab Operating Co., 123 F.2d 262 (10th Cir. 1941). See also N.L.R.B. v. Ford Motor Co., 114 F.2d 905 (6th Cir. 1940), wherein it was said:
The right of employees to organize for collective bargaining, to select representatives of their own choosing, and to unite for concerted action in other respects, is now so clearly recognized as a fundamental right that citation is superfluous. The right to hold views upon any and all controversial questions, to express such views, and to disseminate them to persons who may be interested, has even more venerable sanction. 114 F.2d at 913.
In recognizing this right, the courts have unhesitatingly enjoined public employers from discharging or otherwise seeking to muzzle employees in their union activities. See, e. g., American Federation of State, County, and Municipal Employees, AFL-CIO v. Woodward, 406 F.2d 137 (8th Cir. 1969); McLaughlin v. Tilendis, 398 F.2d 287 (7th Cir. 1968). In McLaughlin, the court pointed out that
[i]f teachers can engage in scathing and partially inaccurate public criticism of their school board, surely they can form and take part in associations to further what they consider to be their well-being.
398 F.2d at 289.
It seems clear then that the union aspect and the public employee aspect do not serve to diminish the scope and extent of the right of free expression.
The question remains whether the guarantee is an absolute one, and we do not hold that it is. Nevertheless, the Supreme Court and the courts of appeal have recognized that freedom of expression under the First Amendment is a preferred right. See Thomas v. Collins, supra, wherein it was stated that First Amendment rights have a preferred place in our scheme, and further stated that the priority enjoyed by the First Amendment rights gives to these liberties a sanctity which does not permit dubious intrusions. See 65 S.Ct. at 322. The extent to which the right is preferred is recognized by the Court’s forbidding actions which are said to have a chilling effect upon the exercise of free expression. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), and N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), wherein the Supreme Court said:
Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.
83 S.Ct. at 338.
It is to be concluded from a reading of the cases then that the only limitations on one’s First Amendment rights which can be validly imposed by the state arise when the state is acting so as to deal narrowly and specifically with a problem which actually and presently threatens to interfere with a truly compelling state interest.4
Considering the words used here, it cannot be said that there was a violation *1159of a statute enacted for the purpose of insulating and protecting any such compelling state interest.
III.
CONCLUSORY COMMENTS AND EVALUATIONS
As noted at the outset, we do not take issue either with the evidence which the trial court selected in making his findings or with the findings which were formulated. The weight given to the facts in arriving at the conclusions, and especially the conclusion that the interest of the city in maintaining discipline outweighs the First Amendment considerations in the balance, we must disagree with because it is contrary to the law. From Ccmtwell, supra, to Pickering and beyond, the Supreme Court has steadfastly upheld the freedom of the individual to express himself even in the face of relatively strong countervailing interests of the community in maintaining discipline. We are not saying that the interest of Salt Lake in the present instance is not a valuable interest. We are merely saying that when it is weighed against the interest which appellant here advances — that of preservation of the First Amendment freedoms— it is no contest.
The primary contention of appellee here is not that the appellant spoke on the subject but that he spoke immoderately and thus offended some of the officers and disturbed the peace, so to speak. It is highly noteworthy, however, that the morale was not good prior to the publishing of the Fisher letter in the Fire Flyer. See testimony of Capt. Marvin C. Kimball who said that the low morale and lack of respect were not caused by the letter, although other evidence was to the contrary. It is infer-able from the testimony as a whole that the letter offended some of the officers and caused them to be somewhat uneasy about their relationships with the men.
As to its effect on the response of the men in fighting fires or carrying out their duties as such, there is a dearth of evidence that the letter produced any remarkable effect. Appellant’s immediate superior testified that the letter did not affect efficiency in general and that appellant’s efficiency was not affected. We come back to the fact that the efforts of appellant did not pertain to fire fighting, but were concerned with maintaining the independence and integrity of the union as an institution. The letter’s concern was not with function so much as with economic objectives.
If there were to exist a clear and present danger of actual disruption state action which would prohibit the expression in favor of discipline would be jusified, but until that point is reached the right to speak continues inviolate. This was well expressed by the Supreme Court in Tinker v. Des Moines Independent Community School District, supra, wherein it was said that undifferentiated fear or apprehension of disturbance is not enough to overcome the right of freedom of expression. The statement of the Supreme Court reads in part:
[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. * * * But our Constitution says we must take this risk . '. . .
89 S.Ct. at 737.
The Court went on to say, in words particularly applicable here:
In order for the State ... to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.
Id. at 738.
Both the Pickering and Tinker formulations have been widely applied: See, e. g., Brukiewa v. Police Commissioner of Baltimore, 257 Md. 36, 263 A.2d 210, holding that in order to suppress the *1160state must show that the utterer is made unfit for public service or that the words adversely affect public service to a degree that justifies restriction; Scoville v. Board of Education of Joliet, 425 F.2d 10 (7th Cir. 1970) which goes far beyond the present facts as does Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), involving criticisms of his department by a Chicago policeman. He was merely reprimanded. In reversing dismissal of his civil rights action the court noted:
A major portion of defendants’ brief is devoted to distinguishing Pickering by pointing out that policemen are different than teachers and that police departments are quasi-military forces dependent upon rigid internal discipline for their effectiveness. We cannot agree that such considerations make Pickering inapplicable.
429 F.2d at 904.5
One final comment: Chief Walker objected to the wording chosen by Fisher to make his point, feeling that the letter as phrased was not “Christian” and admitting that had it been more temperately put there would likely have been no disciplinary action taken; the trial court characterized the letter as bordering upon the libellous.6 This contention has been frequently encountered by the courts, and the possibilities for action have been held limited in a narrow manner to the “fighting words” rationale of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). See, e. g., the venerable and wise decision of the Court in Cantwell v. Connecticut, supra; Scoville v. Board of Education, supra; New York Times Co. v. Sullivan, supra; Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947), and Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Though we may sometimes devoutly desire moderation in expression, we do not always get it. Despite the offensiveness of the words, the right to speak them is upheld as against action which would chill free expression and which does not come up to the standard of immediate danger of causing disruption.
It is unnecessary to rule on the specific regulations which gave rise to the sanction. Rule 51 is not invalid on its face. It is enough then to say that Fisher’s suspension was the result of the unconstitutional application of the rule. The department does not contend the rule would always be applied so as to achieve the result which we have before us, and we assume that it would not be so applied.
Nor is injunctive relief proper here. I would merely hold that appellant is entitled to damages in the amount of wages lost as a result of the suspension and, of course, he is entitled to be upheld in his effort to assert his First Amendment rights. In my humble judgment, the cause should be reversed.
. See for example the decision of the Colorado Supreme Court in Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749 (1933), having to do with statements made in a union newspaper. The court said:
Some of the words in the article in question are in bad taste, no doubt. Less offensive words might have been selected. But we must not overlook the fact that disloyalty to a union is fraught with such possibilities of disaster to the union cause that loyal union members may be excused for referring to it in strong terms of condemnation. The conduct of the plaintiff not unnaturally suggested to the minds of union members such words as “traitor,” “spies,” and “despicable.” 27 P.2d at 752.
*1156We note that arguably the privileged nature of this statement calls at least for consideration in the balancing of conflicting interests of the New York Times requirement that the statement, if false, be either knowingly made or made with a wanton disregard for the rights of others, neither of which was found to exist in the present case.
. See Note, “The First Amendment and Public Employees : Times Marches On; 57 Georgetown Law Journal 134 (1968), Note, “The First Amendment and Public Employees — An Emerging Constitutional Right to be a Policeman?”, 37 George Washington Law Review 409; and Developments in the Law, Academic Freedom, 81 Harv.Law Review 1045 (1968).
. See, e. g., Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952) ; Slochower v. Board of Higher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692 (1956) ; Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1958); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967); Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Pickering v. Board of Education of Twp. High School Dist. 205, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).
The words of the Supreme Court in Garrity were:
We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.
There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price. * * * Assertion of a First Amendment right is [one].
87 S.Ct. at 620.
. See, e. g., Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (“in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction [of breach of the peace.]” (60 S.Ct. at 906); Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1968); Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927); see also Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969).
. See also Pickings v. Bruce, 430 F.2d 595 (8th Cir. 1970); Hatter v. Los Angeles City High School District, 452 F.2d 673 (9th Cir. 1971); Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971); Fluker v. Alabama State Board of Education, 441 F.2d 201 (5th Cir. 1971); Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970); Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970).
. In this connection, we only note in passing that Fisher was in effect commenting upon a subject of mutual interest to a limited audience, and hence was within a clearly recognized privilege with regard to the making of defamatory statements, entirely aside from constitutional considerations, as expressed by the Colorado Supreme Court in Bereman v. Power Publishing Co., 93 Colo. 581, 27 P.2d 749 (1933), cited supra. See also Man-beck v. Ostrowski, 384 F.2d 970 (D.C. Cir. 1967) and Willenbucher v. McCormick, 229 F.Supp. 659 (D.Colo.1964).