dissenting:
I would affirm the judgment of the District Court on the opinion of Judge Gesell, reported as Waters v. Stans, 341 F.Supp. 441 (D.D.C.1972). I add only a few comments on the opinions of my colleagues.
(1) The majority opinion segregates the words of appellants’ sign from their conduct in displaying it. Having accomplished this dissection the majority suggests that disciplinary action against the appellants may have been based upon the content of their sign, as distinguished from their conduct. From these premises the majority concludes that the case must be remanded since “the disciplinary sanction meted out to appellants cannot be sustained if it was predicated, as a crucial ground of decision, whether sole, alternative or concurrent, on the mere content of the sign they displayed as part of their demonstration.” According to the majority the purpose of the remand is “to give the agency an opportunity to tailor its treatment of these employees to the particular activity which exceeds the bounds of First Amendment protection — the activity at the table.”
In my opinion the appellants’ actions and their sign were integral and inseparable parts of their harassment, intimidation and humiliation of the two supervisors. Separation of the sign from the conduct results in an unrealistic and artificial picture of their behavior.
Contrary to the suggestion of the majority the Bureau of the Census did not base its action on the words of the sign, standing alone. Thus, in his suspension letter to the appellants, the Chief of the Personnel Division said:
As you were informed previously, we do not question your right to display a sign, which in and of itself, is not the issue in the case. Rather, the issue is that your actions, considering the content of the sign, the manner and circumstances under which it was dis*102played, and the effect it could reasonably be expected to have, and did have, by singling out these two individual employees in the cafeteria, amounted to misconduct and violates common decency. (J.A. 47).
Similarly, Judge Gesell did not view the ease as one of a mere “verbal assault”, as stated by the majority. On the contrary, he said “What occurred in. this instance was a pointed verbal assault on fellow employees singled out for this purpose and confronted at the employees’ place of work. Such conduct violates common decency, particularly when done, as is the case here, with the obvious intent to humiliate.” 341 F. Supp. 441, 442 (1972). (Emphasis added). In short, I think the record establishes that the appellants’ words were not an independent cause of their suspension. They were suspended for their conduct, considering the content of their sign.
(2) I think it is. not important that signs proclaiming “PIGS OFF CENSUS” had been carried in demonstrations at the back of the lunchroom. There is an obvious difference between such a general demonstration and the actions of the appellants which focused specifically on the two supervisors while they were having their lunch. The appellants did not have a constitutional right to make their protest whenever and however and wherever they pleased. Cf. Adderley v. Florida, 385 U.S. 39, 47, 48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966). Specifically, in the circumstances they had no right to inflict their ugly behavior upon the two ladies.
(3) I find no impermissible vagueness in the regulation that the appellants violated. Nor do I think there was any reason for the Bureau to warn them that conduct such as theirs would subject them to discipline. Anyone with sense and sensibility enough to earn a salary from the government ought to know that such behavior is improper. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
(4) The majority seems to intimate that a reprimand of the appellants might be approved. I think the fashioning of an appropriate remedy is for the Bureau, not for this court. Cf. Butz v. Glover Livestock Commission Company, Inc., 411 U.S. 182, 93 S.Ct. 1455, 36 L. Ed.2d 142 (1973).
I respectfully dissent.