vague and overbroad and that it operates as a prior restraint in
violation of the First Amendment to the United States
Constitution and 42 U.S.C. § 1983.
This matter is presently before the Court on Grady's motion to
certify a class pursuant to Fed.R.Civ.P. 23(b)(2) and for summary
judgment pursuant to Fed.R.Civ.P. 56. Although briefing schedules
were set on both motions which provided that defendants William
R. Blair, Fire Commissioner of the Chicago Fire Department, and
the City of Chicago were to respond to the class certification
motion by November 23, 1981, and the summary judgment motion by
December 1, 1981, no responses have yet been filed.*fn2 The
Court views this dereliction as completely inexcusable and, in
accordance with Local Rule 13(b) and the reasons set forth below,
both motions will be granted without delay.
With respect to the motion for class certification, the Court
finds that the class encompassing an estimated 5000 Departmental
employees is so numerous that joinder of all class members would
be impracticable (Fed.R.Civ.P. 23(a)(1)), that there are
questions of law and fact that are common to the class
(Fed.R.Civ.P. 23(a)(2)), that the claims and defenses of Grady as
class representative are typical of those of the class
(Fed.R.Civ.P. 23(a)(3)), and that Grady may fairly and adequately
represent the class' interest (Fed.R.Civ.P. 23(a)(4)).
Furthermore, the defendants have acted or refused to act on
grounds generally applicable to the class thereby making
appropriate final injunctive or declaratory relief with respect
to the class as a whole within the meaning of Fed.R.Civ.P.
23(b)(2). Accordingly, a class of all Department employees
subject to Fire Department Order 81-010 will be certified in this
matter. It is so ordered.
In support of the motion for summary judgment, Grady argues, on
behalf of the class, that the order in question constitutes a
vague and overbroad regulation of speech, regardless of content
or effect, that has a substantial chilling effect upon the
exercise of first amendment rights. The prohibition on any and
all speech before it occurs is characterized as an
unconstitutional prior restraint and as a `gag rule' that
prevents the dissemination of not only incorrect information, but
correct information and matters of opinion as well. Although the
defendants have not attempted to rebut the class' arguments, the
order itself states that its justification lies in the need to
prevent the release of incorrect information to the public that
"not only harms the professionalism of the Department but
innocent people as well."
In Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970), a case
with which this Court has more than a passing familiarity, the
United States Court of Appeals for the Seventh Circuit found that
a similar order promulgated by the Chicago Police Department
constituted an overbroad infringement upon constitutionally
protected speech. In our view, Fire Department Order 81-010 is
subject to the same constitutional objections and must meet the
same fate. To the extent that the rule is an attempt to insure
that incorrect information is not disseminated to the media or
the public, it sweeps much too broadly and infringes upon
constitutionally protected speech. Like the rule at issue in
Muller, the order at issue here prohibits all criticism of the
Department by Department employees. Indeed, Fire Department Order
81-010 is even broader than the rule at issue in Muller since
it prohibits all comment on Department policy and operations
whether favorable or unfavorable to the Department. Accordingly,
the motion for summary judgment is granted. It is so ordered.
A petition for attorneys' fees and costs pursuant to
42 U.S.C. § 1988 will be considered by the Court if it is filed by January
25, 1982. Should such petition be filed, defendants may file
their response on or before February 4, 1982. It is so ordered.