(dissenting):
With respectful regard for the judgment of my brothers of the majority I *702am compelled to dissent. I am unable to agree with the rationale articulated or the result reached in the majority opinion (sometimes the opinion).
Without the least obeisance or hesitation, and in total disregard for the principles of comity and federalism, the court today has entered boldly into the chambers of the judge of a state court of record and concluded that the judge improperly discharged a member of his staff for exercising his First Amendment rights. Purporting to apply equitable principles, it has ordered the reinstatement of the discharged employee.
The majority recognizes the existence of an Eleventh Amendment problem, but never satisfactorily faces it. The court’s finding of unlawful discharge necessarily engenders several thorny concomitant questions that are completely overlooked. Among these are such issues as whether Mr. Abbott is entitled to back pay; who is to make that determination; whether the Judge is individually liable if back pay is to be awarded;1 and what, if any, conditions of reinstatement are to be imposed. Similarly ignored are the practical administrative problems with respect to the operation of Judge Thetford’s court that will result from today’s decision.2 These troublesome matters will not vanish and they should not be pre-termitted.
The issues decided as well as those ignored impel me to disassociate myself from this exercise of raw power which strikes a crushing blow to a state judge with autocratic overtones which are not mandated by the United States Constitution. The majority has improperly extended federal power to invade Judge Thetford’s office and control the relationship between the Judge and his chief probation officer.
The opinion merely concludes that Abbott’s complaint was improperly dismissed. There is little discussion of the evidence or the facts found by the district court. There is no specific holding that the facts found are not supported by substantial evidence and are clearly erroneous. There is only the conclusion that the record “is devoid of any evidence that the Juvenile Court3 was in any way interfered with by Abbott being a party to an anti-discrimination suit.” It is further concluded that “The record is also devoid of any evidence that disruption would likely have occurred as a result of the lawsuit.” (emphasis in the original). The opinion recognizes that “while Judge Thetford would not be required to have delayed discharging Abbott until disruption to the Juvenile Court’s operation actually occurred, he must have shown sufficient facts upon which he could have reasonably forecast disruption”, citing Shanley v. Northeast Independent School District, Bexar County, Texas, 5 Cir. 1972, 462 F.2d 960, 970-71.
The foregoing conclusions require an analysis of the evidence and the facts found by the district court. The case before this court does not involve the status or welfare of minor wards of the court, white or black. The adequacy of detention facilities of the court are not an issue to be decided in this case. The issue to be determined by us is whether Judge Thetford possessed the authority to discharge the appellant Abbott under the facts and in the circumstances disclosed by the record. There is no claim of a denial of due process in the discharge. Nor is it claimed by Mr. Abbott that there is a complete insulation from discipline by a superior in all circumstances of alleged exercise of First Amendment rights. It is only claimed *703that in “the very narrow fact pattern of this case” the discharge is invalid. The lengthy opinion of the district court is reported in 354 F.Supp. 1280 (M.D.Ala.1973).4
This is the third lawsuit filed by .Mr. Abbott, the Chief Probation Officer serving Judge Thetford’s court. The first suit was brought by him in his capacity as Chief Probation Officer of the court. The second one was brought by him as next friend of certain minor plaintiffs, but in the body of the complaint he alleged that he was the Chief Probation Officer of the court. The issues involved in those two cases are not before this court. The third lawsuit, and the one involved here, is a suit by Mr. Abbott, the Chief Probation Officer, against the Judge both in his official capacity and as an individual as noted earlier. It is undisputed on the record that as Chief Probation Officer, Mr. Abbott was the intermediate link in the chain of command between Judge Thetford and the court’s staff of probation officers.
Prior to filing the 1969 lawsuit Mr. Abbott made no mention of his plans to file the suit in his capacity as Chief Probation Officer, nor did he discuss with the Judge the conditions at the detention facilities of the court in Montgomery or the conditions at the Mt. Meigs detention center that he hoped to remedy by that suit. At that time a large detention center was being constructed by Montgomery County and that construction was completed before the suit was finally concluded. On January 23, 1969 Judge Thetford wrote Mr. Abbott the following letter:
Dear Mr. Abbott:
I have completed a study of the complaint which you filed in Federal Court in the above styled cause.
You are aware of the fact that I was not informed of the filing of this suit until after the same had been filed. You are also aware of the fact that I was informed of no incidence of child mistreatment at the State Training School at Mt. Meigs prior to the filing of this suit. As Chief Probation Officer of the Family Court of Montgomery County, you also are aware of your duty to inform me of incidences of child abuse. The Family Court of Montgomery County has full authority to correct and punish incidences of child abuse and is the proper forum for such action. In your complaint you allege that detention facilities existing in Montgomery County are inadequate; while this is true, you are also aware of the fact that Montgomery County has recognized this and is in the process of spending more than eight hundred thousand dollars to correct this situation and provide people of Montgomery County with a detention facility which will be excelled by none in the nation.
As you know, over the years since I have been judge of this court, I have depended upon your integrity, trust and ability to a great extent in the operation of this court. As an officer of this court you have been granted great discretion because of the trust I had in you. Your actions as chief probation officer in withholding facts and in filing a suit in Federal Court without my knowledge is a distinct betrayal of that trust and of the court for whom you work.
(Record 490-92)
In the months following receipt of the letter, Judge Thetford expressed apprehension about publicity concerning the suit and possible damage to the image of his court. He directed Mr. Abbott to refrain from issuing press releases. Notwithstanding the Judge’s directive another press release was issued and Mr. *704Abbott was suspended for 15 days. This suspension was later reduced to 10 days.
Informed by one of his staff members of the possibility that Mr. Abbott was planning to file another lawsuit, Judge Thetford called a conference in his office with his supervisory probation personnel in September 1972. The evidence clearly supports the finding that the staff members knew the meaning of the directive of Judge Thetford that litigation which would affect the operation of the court should not be instituted by staff members without his prior knowledge and approval. As the staff members left the conference with Judge Thetford, Mr. Abbott confirmed the Judge’s suspicion by stating to another staff member that “somebody has been talking to the Judge.” Slightly over 6 weeks after the conference Mr. Abbott filed the 1972 lawsuit. Immediately after the suit was filed, the following conversation transpired between Mr. Abbott and the recording clerk of the detention facility:
“He said, ‘Well, I have done it again.’ I says, ‘Done what?’
He said, T have filed another suit.’ I asked him, ‘Have you lost your cot-tonpicking mind?’
He said, ‘No, I like to keep things stirred up.’ ”
With respect to the instructions given by the Judge to Mr. Abbott and other members of the staff, the district court made the following finding:
This Court finds that all concerned understood that the type suit intended to be prohibited was any suit that the Judge felt would affect the operation of the Court. Obviously, all parties understood that the purpose thereof was to provide that the Judge have an opportunity to decide the propriety of his assigned personnel’s filing suits which the Judge thought might affect the effectiveness of his Court.
354 F.Supp. at 1283.
Prior to filing the 1972 suit, Mr. Abbott never evidenced any lacked of understanding of the Judge’s directive, he sought no clarification of it, and there is no evidence that he ever discussed the matter with the Judge. If he had discussed the subject with the Judge and had given valid reasons for desiring to file the suit, and if the Judge had arbitrarily and capriciously withheld consent, a different case would be presented. As to the knowledge and understanding of Mr. Abbott the district court made the following finding:
Within approximately one month after said order, Mr. Abbott wilfully and knowingly violated the Judge’s order by filing the 1972 suit against the Alabama Department of Pensions and Securities and'six allegedly private children’s homes in Alabama — all of which are facilities of the Thetford Court in the sense that that Court must coordinate regularly with the Department and the Court has an opportunity to place neglected children in its custody with such homes at the homes’ discretion.
354 F.Supp. at 1283. Moreover, the district court stated in its opinion that Mr. Abbott admitted wilful violation of the order but contended that the order with respect to filing lawsuits infringed his First Amendment rights and “chilled” the rights of the minors for whom he brought the suit.
Concededly, administrative remedies are provided by the laws of Alabama for persons situated like Mr. Abbott. However, he elected not to pursue state administrative remedies and the district court concluded that exhaustion was not necessary. At the conference when Mr. Abbott was discharged, Judge Thetford dictated the letter of discharge quoted in the majority opinion. As the letter was dictated, he turned to Mr. Abbott at intervals to inquire whether the letter was factually correct. Mr. Abbott agreed that the factual statements in the letter were correct. He was discharged for “flagrant and wilful disobedience of orders.”
All of the defendants in the 1972 suit were agencies or entities with which Judge Thetford had to deal constantly. Some were private homes, which although under no obligation to do so, had from time to time accepted dependent or neglected children at the behest of the court. The harmonv anrl mwfwill of †> *705officials of all of the agencies involved were in the best interest of the court and the children. It is a matter of common knowledge that lawsuits tend to discourage harmony and goodwill amongst litigants. The district court so found. 354 F.Supp. at 1284.
Two experienced family court judges testified as to the relationship between the judge of a family court and his chief probation officer. One of these judges testified that the probation officer is “the right arm of the judge.” The testimony of both judges strongly supports the conclusion that the relationship between the judge and his chief probation officer must be one of confidence and cooperation.5 One of the judges who testified stated that a suit by a family court official against the child placement agencies with which the court must deal in placing neglected and dependent children is disruptive of the effectiveness of the court. He further testified that common sense and responsibility, independent of any rule or directive, should have prevented the initiation of a suit such as that filed by Mr. Abbott.6 Judge Thetford testified that he attempted to obtain improvements in the agencies with which he dealt by private conferences with the officials of such agencies, and that he considered a lawsuit the last resort.7 On the other hand, Mr. Abbott indicated that he had little faith in the judge and did not consider him effective. He felt that the 1972 suit was a better method of achieving improvements. He did not consider it necessary to discuss the lawsuit with the judge or to inform him of his intention to file the suit.8
From my point of view, every judge who is actively engaged in the discharge of court functions knows the importance of a cooperative and confidential relationship with staff members. The absence of either cooperation or confidentiality is disruptive and inevitably impairs the operation of any court. Indeed, judges of this court are fully aware of the necessity of such cooperation and confidentiality with secretaries, law clerks, the circuit court executive, personnel in the clerk’s office, and those serving in the staff attorney’s office.
It is not enough to say that there are many unpleasant conditions in modern society, some of which are obviously revolting to all judges and other court personnel. The welfare of dependent and neglected children is important but it is only one of the ills of modern American society. There are problems of discrimination in employment, discrimination in the selection of juries, discrimination against the aged, unfair treatment of the poor, pollution of the environment, and a myriad of other problems. But the function of courts and personnel who work closely with judges is not to engage actively in litigation; their func*706tion is to achieve effectively the objects and purposes for which the court was created. It is quite likely that the family court of Montgomery County, Alabama, like this court and many others, has enough responsibilities in the discharge of duties regularly assigned, to tax the talents and fully absorb all of the energies of judge and court-personnel alike.
There is no evidence that Mr. Abbott had any relationship with or obligation to the children he represented. The record clearly supports the finding that two of the minor plaintiffs were unknown to Mr. Abbott; he had never even seen them. They were not wards of the court for which he worked, nor is it demonstrated that the court had any known responsibility specifically related to them. The third minor plaintiff was slightly known to Mr. Abbott, but was not a ward of Judge Thetford’s court. He was a ward of a similar court in Jefferson County, Alabama. Moreover, there is nothing in the record to indicate that no one else was available to act as next friend of the plaintiffs.9
With the foregoing factual background and the facts found by the district court, Abbott v. Thetford, supra, we come to a consideration of the applicable law. First, the majority opinion is diametrically opposed to the decision of this court in Smith v. United States, 502 F.2d 512 (5th Cir. 1974). In Smith we recognized the importance of a profound national commitment to the concept that debate and the expression of opinions on public issues should be “uninhibited, robust, and wide open” and that such activity may well include vehement, caustic and unpleasant attacks upon government and public officials. In considering First Amendment rights the court is always required to look at the place, time, and circumstances involved in striking the necessary delicate balance between the interests of the government and the constitutional rights of the individual. A controversy that arises on the hustings at a political rally, during a debate in a classroom, on a public street or in a public park may be vastly different from those which arise in another context.
In Smith a clinical psychologist employed at a Veterans Administration hospital that provided therapeutic treatment for patients in need of emotional rehabilitation, insisted upon his First Amendment right to wear a “peace pin” on the lapel of his coat. To him the pin was “symbolic speech.” The psychologist, like Mr. Abbott here, did not claim a lack of understanding of hospital policy nor a denial of due process. Rather, he claimed the right to wear his pin notwithstanding the opinion of his superiors that it was improper to do so in the hospital ward. Smith fully recognized *707that public employment should not be conditioned upon the denial of constitutional rights and relied on Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473 (1958); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952). In considering the delicate balance between the right of government to regulate the activities of its employees that directly interfere with the proper performance of their duties, and the employees’ right of free speech, we analyzed the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968) and our decision in Hobbs v. Thompson, 448 F.2d 456, 470 (5th Cir. 1971). The principles set forth in Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), and Tinker v. Des Moines Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) were applied. We clearly recognized that in order to justify the slightest interference with First Amendment rights there must be a showing that the exercise of such rights “materially and substantially” interfered with the duties required to be performed by an employee. As an example we cited Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169 (1969), wherein a civilian language instructor at Lackland Air Force Base was dismissed because of certain statements concerning the Vietnam war and anti-Semitism made by him to a class of foreign military officers. There the Court held that Goldwasser’s First Amendment right to free speech was not violated by the limited restriction requiring him to keep his opinions to himself in the context of his “highly specialized teaching assignment.” 417 F.2d 1169, 1177.
In Pickering v. Board of Education, supra, the Supreme Court emphasized the “time, place and circumstances” concept when dealing with the First Amendment rights of employees. We quote:
The statements are in no way directed towards any person with whom Appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning, (emphasis added)
391 U.S. at 569-70, 88 S.Ct. at 1735, 20 L.Ed.2d 818. To the same effect is this court’s decision in Pred v. Board of Public Instruction, 415 F.2d 851, 858-59 (5th Cir. 1969).
The majority relies heavily on NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 335, 9 L.Ed.2d 405, 416 (1963). That reliance is misplaced. The relationship between the NAACP and the people it serves is in no way comparable to the relationship between a court and its chief probation officer. The primary issue was one of standing and the right of the NAACP to render legal assistance to certain persons and to engage in litigation on their behalf. In my view the district court properly applied the balance of interest test. See Battle v. Mulholland, 439 F.2d 321, 324 (5th Cir. 1971). The majority opinion did not properly apply that test, if it applied it at all.
Moreover, the opinion is both internally inconsistent and ambiguous; it is unclear whether the holding is premised upon a finding of facial overbreadth or unconstitutional application. The opinion states:
During oral argument before this Court there was a great deal of preoccupation with facial overbreadth of the order as opposed to unconstitutionality as applied. On this record we feel no need to enter into this fine distinction.
Despite this disclaimer, the majority not only concludes that “the order was un*708constitutional as applied,” but also enters into an elusive and finespun distinction between the subjective and objective standards involved in Judge Thetford’s action, thus embarking upon that very analysis of facial overbreadth that it purported to eschew. The court concedes that “Judge Thetford would not be required to have delayed discharging Abbott until disruption to the Juvenile Court’s operations actually occurred.” Nevertheless, it concludes that he had not “shown sufficient facts upon which he could have reasonably forecast disruption”, and that his action was based merely upon “subjective apprehensions of disturbance to the Juvenile Court.” This conclusion of subjectivity is simply not supported by the evidence. The majority itself admits that “the 1972 lawsuit was filed against the chief resources of the Juvenile Court”; that the policies of the agencies involved were “of significant operational consequence as Judge Thetford performs his important duties”; and that “the reinstatement might revive old antagonisms.” (emphasis added) These factors clearly provide an adequate objective foundation for Judge Thetford’s conclusion that disruption was likely.
It is impossible to support the conclusion that Judge Thetford’s directive about the filing of lawsuits is not related to the court’s policies or is not an administrative ruling. In my view it is both a statement of policy and an administrative ruling.
The rationale of the majority is vague, indefinite, uncertain and ambiguous. It totally overlooks the fundamental requirement of cooperation and confidence between a judge and his chief probation officer in the discharge of vital responsibilities affecting the lives and welfare of dependent and neglected children. Not only was Mr. Abbott’s conduct a violation of the principle of cooperative responsibility, trust and confidence, it constituted insubordination and a total disregard for the welfare of Judge Thet-ford’s court. See Beilan v. Board of Pub. Ed., 357 U.S. 399, 78 S.Ct. 1317, 2 L.Ed.2d 1414 (1958); Nelson v. Los Angeles County, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494 (1960); Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2d Cir. 1971); NLRB v. R. C. Can Company, 340 F.2d 433 (5th Cir. 1965); NLRB v. Soft Water Laundry, Inc., 346 F.2d 930 (5th Cir. 1965).
If this court had correctly decided the issues presented, there would be no necessity of considering the troublesome Eleventh Amendment issue involved in reinstatement and back pay. As a matter of fact the opinion only mentions the problem; it makes no effort to solve it.
Finally, if this court is to extend the reach of federal power as evidenced by the majority opinion, it would be well advised to avoid decisions that invade the chambers of a state court judge, strike down his administrative rulings and require the court over which he presides to continue the employment of a willfully disobedient employee. This is especially true in the case of an employee whose primary duty is to cooperate with the judge, preserve the confidential and harmonious relationship between the judge and other staff members, and use his energy and talents in the discharge of the serious duties imposed by law upon the court. The personal desires, ambitions or motives of Mr. Abbott must not dominate or interfere with the functions of the court or impair the relationship between the judge and staff members. It is evident that Judge Thetford’s court, regardless of who may serve as presiding judge, must continue to deal with sad and tragic problems involving the lives and welfare of dependent and neglected children. That court must have the services of a chief probation officer who is fully cooperative and who will follow the judge’s reasonable administrative directives, and whose service and activity will preserve confidence in the court. The judgment of the district court should be affirmed.
. This suit is against Judge Thetford both in his official capacity as Judge and individually.
. My comments concerning Judge Thetford and the Domestic Relations Division of the Circuit Court over which he presided when this case was tried, apply to his successor in that position.
.The court is correctly described as the Circuit Court of Montgomery County, Alabama, Domestic Relations Division. Judge Thetford was the presiding judge of that court and as such served as Juvenile Judge of Montgomery County’s Juvenile Court. Judge Thetford was Mr. Abbott’s immediate supervisor.
. The Federal Supplement dates the opinion as January 26, 1973. The opinion and order from which this appeal was taken is dated February 20, 1973 and appears in the appendix at vol. 2, pp. 650-71 (Rec. 663-84). The opinion shown by the appendix and the opinion in the Federal Supplement are identical. We are unable to explain the discrepancy in dates. The opinion which appears in Federal Supplement omits the “Order” contained in the original opinion, which is as follows:
It is, therefore, the ORDER, JUDGMENT and DECREE of this Court that this case be, and the same is hereby, dismissed, and costs taxed against the Plaintiff Abbott, for the collection of which let execution issue. Dated this 20th day of February 1973.
. Indeed the laws of Alabama provide that the records of the court here involved are to be kept confidential. Title 13, § 353, Code of Alabama 1940 (Recomp 1958).
. 354 F.Supp. 1284-85.
. In its opinion the district court stated:
Defendant stated that the primary reason he adopted the rule requiring his consent prior to such lawsuits being filed by his court personnel was that he had been personally working with a group of people — particularly the Montgomery Kiwanis Club, the Junior League of Montgomery, a Jewish Ladies Group, and the Montgomery Area United Appeal' — in an effort to raise money to build, equip and operate a home in Montgomery for neglected black children and that he felt that the filing of such a suit would probably interfere with such a program. The Kiwanis Club had tentatively approved $30,000.00, conditioned on United Appeal’s furnishing operating funds for the home. Thetford explained that one defendant in the 1972 suit, Brantwood Nursing Home, is an all-white children’s home in Montgomery dependent upon the United Appeal and other private funds for support; that the United Appeal has a policy of not duplicating efforts by supporting two institutions providing the same service; and that should the 1972 suit be successful in integrating Brantwood, United Appeal’s policy would forbid their furnishing operating funds for another home for the care of neglected black children in addition to Brantwood and would, therefore, defeat the planned home for black children. Without contradiction, the project has been suspended pending Abbott’s suit.
354 F.Supp. at 1284-85.
.Id.
. The district court found:
Plaintiff argues with commendable zeal, that the rights of black minors to have their civil rights vindicated and the right of Plaintiff to. bring a suit to vindicate such rights outweigh any “state interest” allegedly involved. While the civil rights of all are of grave importance to this Court, no clear legitimate reason appears why the minors would have been deprived of their rights had the suit been brought by some person other than a chief probation officer of a court needing the good will of the defendants. The suit is financed by the ACLU, whose members presumably are available for nominal as well as financial support. The files and records of this Court are regularly interspersed with suits brought by members of civil rights organizations, and the organizations, as well as their members, have courageously allowed their names to be used in such litigation. The only substantial evidence offered by Plaintiff as to scarcity of persons to act as next friend for the minors was that Plaintiff went to Attorney Mandel, presumably with expectations of suing as next friend for the then delinquent minor Player, and that he agreed to act as next friend for Coefield and Scott when Father James declined to act. Suffice it to say, there was no evidence of any substantial attempt to find any next friend, other than Plaintiff Abbott, for the minors, and both Abbott’s evidence and brief of the Plaintiff admit existence of a living father of one minor and a grandmother of another.
This evidence is relevant to show that the interest to be weighed against state interest in this case is the right of Abbott to file a suit for others, not the rights of the minors to have their rights vindicated. There was no substantial proof that the minors would have lost their rights had someone other than Abbott served as their next friend.
354 F.Supp. at. 1287-88.