(dissenting). What is wrong with holding that only the spokesman for the designated bargaining agent of the teachers may speak on employment-related school matters at a public meeting of a public school board? What is wrong is that it denies the constitutional assurances as to freedom of speech and petition to individual school teachers and other teacher groups.
The first amendment to the United States Constitution guarantees that “Congress shall make no law . . . abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”1 The Wisconsin Constitution assures the right of every person to “. . . freely speak, write and publish his sentiments on all subjects . . .” and to “. . . petition the government or any department thereof . . . .”2 The United States Supreme Court has made clear that as a constitutional matter teachers may not 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 . . . .”3 These constitutional guarantees protect *218all citizens, public school teachers included, with the nature of the teaching profession bringing “. . . the safeguards of those amendments vividly into operation.”4
We deal here with the right of a teacher to speak at a public meeting of a school board on school matters— during the portion of such meeting set aside for appearances by the general public.5 During such citizens-invited-to-present-points-of-view part of the meeting, the president of the teachers’ association, that was the sole collective bargaining agent, spoke for a fair-share proposal,6 and presented a petition or statement signed by between 1,300 and 1,400 teachers urging continued negotiations and early agreement. Then an individual teacher requested permission to speak, without indicating what he intended to talk about. Given such permission, he stated that he represented “. . . an in*219formal committee of 72 teachers in 49 schools,” urged further study of the fair-share proposal and stated he would submit a petition signed by teachers who favored delay for study. The school board permitted both the association president and the committee spokesman to speak and listened to both when they spoke.
The state employment relations board found that the Madison school board, by listening to the teacher who spoke after the president of the teachers’ association had concluded his remarks, had committed a “prohibited practice” in violation of sec. 111.70 (3) (a) 1 and 4, Stats.7 The employment relations board ordered the school board to “. . . immediately cease and desist from permitting employes, other than representatives of Madison Teachers, Inc., to appear and speak at meetings of the Board of Education, on matters subject to collective bargaining . . . .” The circuit court upheld such order, and the majority of our court affirms.
The writer sees three constitutional infirmities in the employment relations board’s order, all related to the first amendment and the corollary state constitutional guarantees as to freedom of speech and right to petition for redress of grievances-.
The right to speak. When a school board sets aside a portion of its regular meeting as a public forum where citizens generally may state their views on school matters, the invitation and the right to appear go to all citizens, teachers included. The school board is a public *220body. The meeting's are public meetings. Its open discussion periods are just that — open to the public, teachers included. The majority opinion finds the exclusion of teachers or teacher groups, other than the one designated as collective bargaining agent, was here justified and required by the state Municipal Employment Relations Act, which provides for an exclusive bargaining representative for an appropriate bargaining unit.8 As to an individual’s right to speak at a public hearing or a public meeting of a public body, we would see any duties or rights deriving from the Municipal Employment Relations Act as limited by rights granted by our constitutions, federal and state. If there is a crunch, it is the statute, not the constitutional right, that must yield. However, in the situation before us, the writer sees no crunch or conflict. The association or union, selected as the bargaining agent for the employees, is the sole bargaining representative of the employees in bargaining sessions between employer and such bargaining agent. These meetings are not public. What the group, selected as sole bargaining agent in the election to select such representative, won was the right to represent the employees in the bargaining unit in bargaining sessions and negotiations with the employer. What it did not win was the right to speak, during a public discussion period, at a public meeting of a public body, with all other voices of individual teachers or groups of teachers to be silenced. The school board here is not required to conduct public discussion periods at its meetings while collective bargaining is going on. It is not required, the writer thinks, to hear any discussion of stated and specified topics or issues that are involved in the collective bargaining negotiations between it and the designated collective bargaining agent. But what it *221cannot do, much less be required to do, is to permit the representative of the employees for bargaining purposes to speak at a public meeting while a gag is placed over the mouths of all individual teachers or other teacher group representatives. This sauce of right to speak at a public meeting cannot be served to one, without being available to the others. It is true that, as to the right of a minority union to speak at a committee meeting dealing with matters involved in collective bargaining negotiations, this court did deny the right of minority unions to be heard at such meeting.9 However, in that case, our court held: “If this case involved solely the giving of a position statement at an ordinary meeting of a public body, we would have some difficulty in labeling the conduct ‘negotiating’.”10 In the case now before us we do have “. . . solely the giving of a position statement at an ordinary meeting of a public body.”11 Restrictions as to length, relevancy or to “giving of a position statement” raise no constitutional questions. They are all implicit in an invitation to appear at a public discussion at a public meeting of a public board. The writer has no quarrel with the Milwaukee case, as limited. However, the writer sees the exclusivity of bargaining representation in employer-employee relations as not here reaching or including the right of the designated representative to speak at a public forum *222portion of a school board meeting, with all other teacher voices to be silenced. Actually, the employment relations board order does not deny the right of the individual teacher to speak. It only denies the right of the school board to listen. But the right to speak with no one to listen is hardly what the constitutional guarantees envision or protect. The writer, under these circumstances, sees the right of the teacher to speak and the school board to listen as alike constitutionally protected.
Censorship of content. As to the brief presentation here made by the individual teacher and spokesman for the informal teachers’ committee, the majority finds it to have been “. . . more than a mere statement of a position; it was an argument for it.” Unless a speaker takes a firm stand on both sides of the fence, it is difficult to see where a statement of position would not be for or against a proposal or proposition. Here the teacher who spoke identified himself and then read the text of the petition being- circulated which he stated would be filed with the board. The petition asked study by an impartial committee. If this was argumentative, it was only mildly so. But the issue as to content of what was or might be said goes deeper. The majority defends the employment relations board order against the charge of vagueness. It finds no vagueness in the board order as it affects “. . . the board’s conduct here.” That is certainly true, but, in the first amendment context, the question of scope or uncertainty as to future application goes to the chilling effect of the order upon the right of free speech. The employment relations board concluded that, when a teacher asks to speak to the board during a public discussion period at a regular board meeting, the board must inquire as to the nature of the speech. Then, if the topic is a matter subject to collective bargaining, the board must refuse to allow the *223teacher to speak. What matters are subject to collective bargaining? The statute provides that a municipal employer must bargain in good faith on matters of wages, hours and working conditions.12 As appellant suggests, certain questions arise. Suppose the teacher wishes to speak on class size or teachers’ aids, the establishment of summer programs, school reading projects, in-service training, or the special treatment and handling of problem students. Are these matters subject to collective bargaining on which the board is restricted from receiving information from teachers other than the majority representative of its employees? Nothing in the Municipal Employment Relations Act suggests that a teacher does not have a right to speak at a public meeting on these matters, yet all could be covered or affected by a' collective bargaining agreement. It is in this sense that the department order is vague, not meaning that it cannot be understood and applied by this school board to the facts here, but because the difficulty of locating its outer limits will have a chilling effect both on the right of teachers to speak and school boards to listen on topics, arguably relatable to bargaining, but directly concerned with the well-being of school children and the community. The prudent school board would resolve doubts against the right of an individual teacher to speak on marginal or in-doubt topics, and that is what is meant by having a chilling effect. The writer would hold the order, in its scope and breadth, to have a constitutionally impermissible temperature-lowering effect on the exercise of first amendment rights.
*224Justification for infringement. The majority opinion sets forth the federal and state constitutional guarantees of the rights of individuals to speak and to petition government for redress of grievances. It then concedes that the WERC and circuit court decisions in this case infringe upon the freedom to speak and to petition the federal and state governments. Such infringement of a constitutional right, the majority writes and the writer agrees, may be permitted where there is a “. . . grave and immediate danger to interests which the State may lawfully protect.”13 The question is whether the gravity of the dangers justifies the admitted infringement.14 In the case before us, the majority holds, the gravity of infringing upon two rights, assured by federal and state constitutions, is “. . . considered outweighed by the necessity to avoid the dangers attendant upon relative chaos in labor-management relations.” The employment relations board was more restrained, seeing two “salutary purposes” served by its order — i.e., it “stabilizes the bargaining relations” and it serves the “unity of collective clout” which “advances the welfare of public employes.” How can either statement of the public purpose served withstand the obvious fact that the danger alluded to could be entirely avoided by permitting no discussion at a public appearance portion of a regular school board meeting — by anybody — of specified topics and areas of discussion, announced and stated in advance of the public meeting. That would avoid treating a public meeting of a public body both as a collective bargaining session and as an opportunity for presentation of points of view by members of the public with only individual teachers silenced and not permitted to speak. Even if this *225individual teacher, speaking for himself or for his informal committee, were permitted to state his or their position during a public discussion period at a regular school board meeting, could grave danger, much less “chaos,” be a likely or reasonably predictable result? This is no “shouting ‘Fire’ in a crowded theater” situation. Any conflict between exclusivity in bargaining and the teachers’ rights of free speech can be here entirely avoided by advance listing of topics that no one may discuss during the public-invited period of the school board meeting. The writer sees no reason here for holding that anyone except an individual school teacher or minority teacher group may speak freely on school affairs at a school board meeting. Town-meeting type discussions at school board meetings are in the American tradition, but town meetings were open to everyone, not everyone except school teachers. Freedom of speech “. . . lies at the foundation of a free society,”15 and “. . . speech concerning public affairs is more than self-expression; it is the essence of self-government.”16 The writer would reverse. As to teacher participation in a public discussion at a public meeting of a public body, the writer finds here no showing of facts present or danger threatened that either requires or warrants denying this teacher and any other teacher so situated, “. . . 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. . . .”17
I am authorized to state that Mr. Justice Bruce F. Beilfuss and Mr. Justice Connor T. Hansen join in this dissent.
Amendments to the United States Constitution, art. I, made applicable to states by the “due process” clause of the fourteenth amendment. See: Joseph Burstyn, Inc. v. Wilson (1952), 343 U. S. 495, 72 Sup. Ct. 777, 96 L. Ed. 1098. See also: Lawson v. Housing Authority (1955), 270 Wis. 269, 70 N. W. 2d 605, recognizing such applicability.
Wisconsin Constitution, art. I, sec. 3, providing: “Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. . . .” And, art. I, see. 4, providing: “The right of the people peaceably to assemble, to consult for the common good, and to petition the government, or any department thereof, shall never be abridged.”
Pickering v. Board of Education (1968), 391 U. S. 563, 568, 88 Sup. Ct. 1731, 20 L. Ed. 2d 811.
See: Wieman v. Updegraff (1952), 344 U. S. 188, 73 Sup. Ct. 215, 97 L. Ed. 216, Mr. Justice FRANKFURTER in concurring opinion (page 195) stating: “By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher’s relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers affects not only those who, like the appellants, are immediately before the Court. It has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice . . . .”
The meeting involved was the regular and scheduled meeting of the board of education of the City of Madison, Joint School District No. 8, on the evening of December 6, 1971. A portion of each regular meeting of this board is opened and devoted to appearances by the public, permitting concerned citizens to present their points of view on school matters to the board.
Sec. 111.70(2), Stats., provides the procedure by which a union security agreement designated “fair share” may be established or terminated.
Sec. 111.70 (8) (a) 1, Stats., provides that it is a prohibited practice for a municipal employer "... 1 to interfere with, restrain or coerce municipal employes in the exercise of their rights guaranteed in sub. (2).” Subdivision 2 provides that it is a prohibited practice "... 2 To initiate, create, dominate or interfere with the formation or administration of any labor or employe organization. . . .” Subdivision 4 provides that it is a prohibited practice "... 4 To refuse to bargain collectively with a representative of a majority of its employes in an appropriate collective bargaining unit. . . .”
Subch. IV, secs. 111.70 to 111.77, Stats., the Municipal Employment Relations Act.
Board of School Directors of Milwaukee v. WERC (1969), 42 Wis. 2d 637, 168 N. W. 2d 92. See also: Board of Education v. WERC (1971), 52 Wis. 2d 625, 191 N .W. 2d 242.
Id. at page 652.
The teacher whose right to speak is here challenged also stated that he intended to present a petition signed by teachers in the school system. However, the order oí the employment relations board holds only that permitting the teacher to speak exceeded the bounds of permissible conduct, apparently conceding that sec. 111.70 (2), Stats., authorizes and requires a municipal employer to receive a petition of employees as to a fair-share agreement.
Sec. 111.70 (1) (d), Stats., provides: “‘Collective bargaining’ means the performance of the mutual obligation of a municipal employer, through its officers and agents, and the representatives of its employes, to meet and confer at reasonable times, in good faith, with respect to wages, hours and conditions of employment . . . .” (Emphasis supplied.)
Board of Education v. Barnette (1943), 319 U. S. 624, 639, 63 Sup. Ct. 1178, 87 L. Ed. 1628. (Quoted in majority opinion.)
Dennis v. United States (1951), 341 U. S. 494, 510, 71 Sup. Ct. 857, 95 L. Ed. 1137. (Quoted in majority opinion.)
Shelton v. Tucker (1960), 364 U. S. 479, 486, 81 Sup. Ct. 247, 5 L. Ed. 2d 231.
Garrison v. Louisiana (1964), 379 U. S. 64, 74, 75, 86 Sup. Ct. 209, 13 L. Ed. 2d 125.
Pickering v. Board of Education, supra, footnote 3, at page 568.