[77] BORK, Circuit Judge, dissenting:

In this case a government employee has been punished with, it seems to me, undue severity. The severity of the punishment, however, is not before us and we have no power to alter it. What is before us is a pure question of law: whether the speech for which the employee was disciplined is protected by the first amendment. Our answer to that question, given the implications our answer will have for the future, can in no way be influenced by our dislike for the discipline imposed.

As the majority notes only in passing, maj. op. at 303 n. 10, there are first amendment interests on both sides of the balance in this case. Gordon's speech directly threatens public confidence in the privacy of the mailstream. It encourages other postal workers to invade the privacy of the public mails in order to dramatize whatever personal statements they wish to make. In the long run, the freedom to communicate that the first amendment protects will be contracted if members of the public come to believe that they may not exchange their thoughts and opinions through the mails without fear of disclosure. Although one postal worker's speech is protected today, the majority's new rules render all members of the public a little less secure in their ability to exchange ideas. As far as the first amendment is concerned, today's decision, is in my view, a truly pyrrhic victory.

The majority has created new first amendment law that runs directly contrary to Supreme Court precedent. The innovation is twofold. First, the new doctrine holds that an otherwise actionable or punishable statement is shielded by the first amendment if it is contained within a discussion of matters of public concern. Existing doctrine grants no such immunity. Second, the new doctrine holds that an otherwise actionable or punishable statement gains retroactive first amendment protection if the author later states that he did not mean what he said. Existing doctrine judges the words not by their author's self-styled "intent" but by the meaning they convey to readers at the time they are uttered. A subsequent retraction or explanation of "intent" affects only the measure of damages or appropriate punishment.

It is well to be clear at the outset, what the ramifications of the majority's doctrinal innovations are. Suppose an intelligence officer falsely stated in a column on foreign relations that he was revealing top secret information to the public. Later he retracts the statement, and claims the reference to a breach of confidence was "narrative fiction" included to "dramatize" or add shock value to the column. Since the false statement appears in the midst of a matter of public concern, and the employee's intent was to dramatize his views, the majority's new rules would mean that the government could not discipline the employee in any way. Moreover, although the most elementary common sense tells us that the statement would severely damage the confidence of our allies in our intelligence services, the majority would require that the government prove by tangible evidence what is itself an intangible harm.

Unless this decision is overruled, or unless it proves to be in "the same class as a restricted railroad ticket, good for this day and train only," Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting), today's rulings are thus capable of doing severe damage in this circuit to the law of defamation and to the government's ability to discipline employee misconduct.

After setting out the relevant facts, I proceed to discuss the leading cases on disciplining government employees for speech. In my view, these precedents indicate that Gordon's speech did not relate to a matter of public concern. I then treat the relevance of libel law to employee discharge cases, and indicate why the speech in this case is of a wholly different nature from that protected in the case of Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc). Finally, I highlight what I believe to be the majority's major errors in striking the Pickering balance, and conclude with remarks on two minor factual points.

I.

Joseph Gordon, a postal worker, wrote a regular column for his union's newsletter. In the course of a column discussing the value of unions and urging union members to convince nonmembers to join, Gordon stated that while sorting mail he had become curious about letters whose return address was "Congressman Phillip Crane, National Right to Work Committee." Gordon's curiosity was soon satisfied, he wrote, because one of the letters was unsealed and the contents fell out. He found a petition from the congressman seeking to organize support for a bill restricting certain union organizing tactics. Gordon wrote that he read the petition, and he then proceeded to publish its contents and to comment upon them. This statement described a clear violation of postal regulations by Gordon. When the Postal Service investigated, however, Gordon claimed his published statement was false and that he had not read the mail he was sorting. He later included that disavowal at the end of another column. This case proceeds upon the assumption that Gordon's first statement was false and his second statement true.

The Postal Service discharged Gordon for publishing the first statement on the ground that the publication was "conduct prejudicial to the Postal Service," which constitutes a basis for discharge. Ordinarily, this court would not interfere with an agency judgment of that sort. Informing union members and others that a postal worker, prominent as an editor of the union newsletter, thought it proper to read and publish the contents of mail certainly tends to diminish public confidence in the Postal Service and to encourage other postal workers in such conduct. The conduct described is a dereliction of duty that lies at the heart of the Service's responsibilities to the public.

A majority of this court, nonetheless, concludes that Gordon's statement of serious misconduct is protected by the first amendment. The case law does not support that conclusion.

II.

It is to be remembered, in the first place, that Gordon was not simply an editor and a columnist. If he were a private citizen, there is no doubt that his speech would be protected by the first amendment. Gordon, however, was also a government employee with special organizational duties. The Supreme Court has repeatedly made it clear that such persons, with respect to matters involving their governmental functions, do not have all the first amendment protections that a private person enjoys. See United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 564-67, 93 S.Ct. 2880, 2889-91, 37 L.Ed.2d 796 (1973) (rejecting first amendment challenge to bar on partisan political activity by civil servants (citing Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968))); Broaderick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (same).

The government has an independent interest in preserving discipline and efficiency in public services which justifies greater regulation of employee speech. As Justice Powell stated in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974):

The Government's interest, and hence the public's interest, is the maintenance of employee efficiency and discipline. . . . To this end, the Government as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch.

Id. at 168, 94 S.Ct. at 1651 (Powell, J., concurring). This government interest is particularly compelling when it involves safeguarding the first amendment rights of all citizens to communicate through the mails. See Lamont v. Postmaster General, 381 U.S. 301, 305, 85 S.Ct. 1493, 1495, 14 L.Ed.2d 398 (1965) ("The United States may give up the post office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues. . . .") (quoting Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 437, 41 S.Ct. 352, 363, 65 L.Ed. 704 (1921) (Holmes, J., dissenting)).

The leading Supreme Court cases upon the government's right to discharge employees for speech are Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Rankin v. McPherson, ___ U.S. ___, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). An examination of those decisions demonstrates that the Postal Service's disciplining of Gordon was lawful.

Pickering invalidated the discharge of a teacher who published a letter in a local newspaper criticizing the school board's allocation of school funds and the alleged efforts of the board to keep teachers from informing the public about facts relevant to a vote on a school bond issue. The board held a hearing and decided that many of Pickering's statements were false and damaging, though no evidence was presented, and no findings made, as to the effect of the letter on the community or the school system. Pickering was discharged on a standard much like that applied by the Postal Service here: publication of the letter was found "detrimental to the efficient operation and administration of the schools of the district." Pickering challenged his dismissal through the Illinois courts and in the Supreme Court of the United States on the ground that the statements in his letter were protected by the first and fourteenth amendments.

Based on its examination of the individual statements in the letter, as well as its content as a whole, the Supreme Court in Pickering held that the teacher's letter was about "a matter of legitimate public concern," 391 U.S. at 571, 88 S.Ct. at 1736. The Court found that there was no evidence of actual harm from the letter, and that it was not a statement of the sort that is per se detrimental, i.e., one that would "normally" have an impact on the operation of the organization in question. Id. In contrast, there can be no doubt that a postal worker's published statement that he has read and now discloses the contents of mail he sorted would "normally" have a detrimental impact on the Postal Service: the public would lose faith in the confidentiality of mail and, if the statement and disclosure went unpunished, other postal workers would be led to believe they could safely engage in similar conduct. These are inferences of harm that courts regularly draw without actual evidence of that harm. See infra pp. 328-30.

In short, Pickering, unlike our case, was a case in which [a public employee] has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the [employee's] proper performance of his daily duties . . . or to have interfered with the regular operation of the [government agency] generally.

391 U.S. at 572-73, 88 S.Ct. at 1737 (footnote omitted). The Court also noted that it was disinclined to equate completely dismissal from public employment for remarks critical of superiors with the award of damages in a libel suit by a public official for similar criticism. The Court indicated that a higher degree of protection would be accorded the employee in a libel suit. Id. at 574, 88 S.Ct. at 1737. It follows that if Gordon would not be protected by the libel standard, as I will show he would not, there is no question that he is liable to discipline.

In addition, and more generally, the Court stated the interests to be weighed in cases like these:

[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer in promoting the efficiency of the public services it performs through its employees.

391 U.S. at 568, 88 S.Ct. at 1734-35.

It is apparent at once that this Pickering balance is of no assistance to Gordon and, in fact, shows that he may lawfully be discharged. Gordon's published statement that he had read, and now disclosed and discussed, the contents of mail he was sorting was not a comment on an affair of public concern. Indeed, the only public concern likely to be connected to that statement would be public consternation that a postal worker would misbehave as Gordon said he had. There is here no employee expression that can be fairly considered as "relating to any matter of political, social, or other concern to the community." On the Pickering balance, this was speech not only without value as public commentary but with an obvious potential for harm. There can be no doubt that such speech is punishable. "Statements made by public employees in their employment capacity and not touching on matters of public concern may be considered unprotected in the sense that employment-related sanctions may be imposed on the basis of such statements." Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 504 n. 22, 104 S.Ct. 1949, 1961 n. 22, 80 L.Ed.2d 502 (1984).

Connick similarly leads to the conclusion that the Postal Service may lawfully discharge Gordon. In that case, the Court upheld the discharge of an assistant district attorney, Myers, for circulating a questionnaire to her fellow staff members concerning such matters as office transfer policy (she was protesting her own transfer), office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Though the district court had found that the issues raised in the questionnaire related to the effective functioning of the district attorney's office and so were matters of public concern, the Supreme Court said there was much force to the contention of Connick, the district attorney, that the questionnaire concerned internal office matters. The Court refused to hold that the effectiveness of the office was a matter of "public concern," as that phrase is used in the constitutional analysis appropriate to employee dismissal cases. The reason was the necessity for governmental efficiency.

The repeated emphasis in Pickering on the right of a public employee "as a citizen, in commenting upon matters of public concern," was not accidental. This language, reiterated in all of Pickering's progeny, reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government offices could not function if every employment decision became a constitutional matter.

461 U.S. at 143, 103 S.Ct. at 1688 (footnotes omitted) (emphasis added). Thus,

Pickering, its antecedents, and its progeny lead us to conclude that if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.

Id. at 146, 103 S.Ct. at 1690 (footnote omitted) (emphasis added).

Because I sense in the majority's argument a feeling, which I share, that Gordon has been too harshly treated, it is worth quoting the immediately following passage from Connick:

Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.

Id. at 146-47, 103 S.Ct. at 1690. The Court also said that:

the State's burden in justifying a particular discharge varies depending upon the nature of the employee's expression.

. . .

The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public.

Id. at 150, 103 S.Ct. at 1692. Thus, despite the fact that one item in Myers' questionnaire related to a matter of public concern, the questionnaire and the manner of its circulation were held to be disruptive of office procedure and Myers' discharge was upheld.

In Rankin, the Court held that the first amendment barred the discharge of McPherson, a deputy constable with clerical duties, for her statement, in a private conversation with a co-worker following news of an attempt on the President's life, that "if they go for him again, I hope they get him." 107 S.Ct. at 2895. The Court first found that the statement addressed a matter of public concern, because "the statement was made in the course of a conversation addressing the [President's] policies," followed a news bulletin announcing an attempt to kill the President, and was not a statement for which McPherson could have been criminally penalized. Id. at 2897-98. The Court then held that the harm caused by McPherson's statement did not outweigh its protected status, because Constable Rankin had not based McPherson's discharge on her statement's interference with the workplace or its demonstration of McPherson's unfit character, because McPherson had made the statement in a private conversation, and because McPherson's duties did not require confidentiality or implicate policy-making or public contact. Id. at 2898-900.

The line drawn by Pickering, Connick and Rankin suggests that Gordon's speech cannot properly be characterized as addressing a matter of public concern. The teacher's statements in Pickering were addressed to local school funding, an electoral issue, and one upon which the school administration itself had taken a public position. Pickering, "as a citizen" was entitled to comment upon such an issue without fear of reprisal. The Pickering court specifically noted that it was " not presented with a situation in which a teacher has made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher's presumed greater access to the real facts." Pickering, 391 U.S. at 572, 88 S.Ct. at 1736 (emphasis added).

A similar distinction was made in Connick. There the court found that "[t]he District Court got off on the wrong foot in this case by initially finding that, `[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern.'" Connick, 461 U.S. at 143, 103 S.Ct. at 1688 (quoting Meyers v. Connick, 507 F.Supp. 752, 758 E.D.Pa. 1981)). The Supreme Court's analysis was more refined. Meyers' questions pertaining to confidence in supervisors, the level of office morale, and the need for a grievance committee were held not to be matters of public concern. Conversely the issue of whether assistant district attorneys were pressured into working on political campaigns was held to be an issue of legitimate public interest. See Connick, 461 U.S. at 148-49, 103 S.Ct. at 1690-91.

The same principle applied in Rankin. There a deputy constable exercised her constitutional right as a citizen to criticize an elected public official. Her remarks were totally devoid of any reference to her co-workers, her superiors or office policy. In fact, her remarks were not even public, they were made in the course of a private conversation with one co-worker. See Rankin, 107 S.Ct. at 2899. See also Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979) (teacher's criticism of schools' employment policies as racially discriminatory held protected speech); Perry v. Sindermann, 408 U.S. 593, 594-95, 92 S.Ct. 2694, 2696, 33 L.Ed.2d 570 (1972) (state junior college teacher's advocacy of elevation of college to four-year status shielded from employment reprisal).

Under these precedents, the speech for which Gordon was discharged simply cannot pass the threshold "public concern" test. The notion that Gordon was exercising his rights "as a citizen" to comment on the issues of the day by falsely claiming to have read, and be disclosing, the contents of mail placed in his trust for processing is, to say the least, a novel one.

The majority purports to find support for this result in Rankin. It argues that Rankin stands for the proposition that speech must be evaluated in its broader context to determine whether or not it addresses a matter of public concern. See maj. op. at 301-302. That proposition is beyond dispute. In Rankin the context of McPherson's remark, a private discussion of the President's policies, bolstered the conclusion that hers was a political comment lacking any violent intent. See Rankin, 107 S.Ct. at 2898. One's political perception of the President is just as clearly irrelevant to fitness for public employment as a propensity to violent behavior is relevant. Context informed the Court's decision that what could be interpreted as personal threat was in fact the hyperbolic expression of a political opinion. Thus the speech for which McPherson was discharged was itself political speech on a matter of public concern. The need to conduct the Pickering balancing test was not triggered solely by the fact that her statement occurred in a political context, but rather by the fact that within such a context a reasonable listener would have considered the statement an expression of political disagreement. Thus in Rankin, like Pickering, the possibility arose that the employee was being penalized for her political views rather than for legitimate reasons connected with the efficiency of the public employer's operations.

In contrast the majority here does not suggest, and the district court did not find, that Gordon was discharged for any part of his column other than his statements about reading and disclosing the mail. The context of that statement is completely irrelevant unless it would indicate to the reasonable reader that the words actually written were not to be ken literally. No discussion I can conceive of could convert Gordon's matter-of-fact account of how he read the mail into the work of political satire the majority purports to see.

Clearly uneasy with its holding that Gordon's speech itself addressed a matter of public concern, the majority then grasps at an even weaker reed for support. It argues that, "Gordon's discussion of the contents of the Crane letter . . . cannot be textually isolated from his substantive discussion of the `right to work' issue raised by that letter." Maj. op. at 302. The majority's apparently believes that because the Crane letter itself involved a matter of public concern, Gordon's discussion thereof did so as well. I confess I am at a loss as to where the majority finds support for this new "fair use" exception to the confidentiality of the mails. Suppose the teacher in Pickering had obtained his information concerning school fiscal policies from the principal's locked desk drawer. Would Pickering's citation of stolen material addressing a matter of public concern insulate him from discharge for his breach of trust?

The majority's new rule is particularly perverse in that it operates to strip the shield of confidentiality from expressly political expression. The name of a congressman, judge, or public interest group on the outside of an envelope becomes the postal worker's invitation to "read and comment" with impunity. The majority's new rule does grave damage to the first amendment interest all citizens share in being able to communicate their political and other thoughts through the mails without fear that those thoughts will become ammunition in postal workers' private debates. Cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (compelled disclosure of membership list of political organization unconstitutionally burdens associational rights).

III.

The majority concedes that Gordon's published assertion that he violated a fundamental rule of the government service to which he belonged does not of itself merit first amendment protection. I take the majority to concede that if the statement stood alone, Gordon could be discharged for publishing it. But the majority attempts to evade the conclusion that follows from those concessions by drawing over the damaging falsehood the veil of protection that covers the remainder of Gordon's discourse on the virtues of unions. The attempt not only fails but leads the majority into both of its erroneous departures from the law.

The majority's first argument begins, and ends, with the claim, repeated in various formulations, that Gordon's statement was "in the midst of an acknowledgedly political editorial," was "inextricably bound up with" the political content of his column, and was "`related' or `connected' to speech on a matter of public concern." Maj. op. at 301, 302, 303 n. 8. The significance of these observations is not obvious. All statements appear in contexts of one kind or another, and any actionable statement appearing in a longer article or speech would be just as much "in the midst of" the discussion surrounding it as was Gordon's statement. The majority's suggestion that the confidentiality of the mailstream is somehow inherently "related" or "connected" to discussion of the right-to-work movement is difficult to understand. The claim that the statement was "inextricably bound up" with the political content of the column is no more than loose rhetoric. The falsehood could have been extricated very easily, and, in fact, it is the majority's position that Gordon's later retraction worked a complete, though retroactive, extrication of the falsehood from the political message.

It is, of course, true that the context in which a statement appears may alter or even reverse the literal meaning the statement would have if it stood alone. If that were the case here, Gordon's statement would be protected by the first amendment. But that is not this case. Nothing about the context in which Gordon's statement appeared suggests to the reader that he had not done exactly what he said he had done. Nor does the context detract one bit from the fact that he published the contents of mail. That being so, the placement of that statement in the midst of other material does nothing to immunize it.

The law reports are full of cases demonstrating that actionable statements are not immunized by being placed in a context of statements that are protected. It should suffice to cite New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In New York Times, the plaintiff sued for libel because of several inaccuracies, alleged to be damaging to him, in a newspaper advertisement charging a wave of terror against blacks involved in peaceful civil rights demonstrations in the South. Of ten paragraphs in the advertisement only one third and a portion of the sixth were alleged to state as facts events that never occurred. The Supreme Court noted that the advertisement as a whole, "as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection" claimed. 376 U.S. at 271, 84 S.Ct. at 721. The Court held that a libel action would not lie and created new first amendment limits on libel actions brought by public officials against critics of their official conduct. The Court's creation of the actual malice standard would have been wholly pointless if the false statements had been immunized simply because they were brigaded with protected statements.

In Gertz, the plaintiff was permitted to sue despite the fact that the article that defamed him was addressed to a matter of public concern, the alleged "frame-up" of a policeman as part of a communist plot to discredit local police forces, 418 U.S. at 352, 94 S.Ct. at 3013 (referring to "this public issue"), and despite the fact that the false statements were included among true ones, id. at 326, 94 S.Ct. at 3000 (listing "serious inaccuracies"). Again, the supposed rule that otherwise actionable statements are immunized when placed in the midst of protected speech failed to put in an appearance. There is no such rule and never has been. Context matters only if it signifies that the words are not meant literally.

The majority's second argument rests upon the fact that Gordon, when later confronted with the prospect of disciplinary action, claimed his statement was untrue and had been made to show the irony of a union worker's having to handle what he regarded as anti-union mail. The majority's second new rule is, therefore, that a government worker may publish false statements that harm the government service by which he is employed if he later claims that irony was intended. This is so, according to the majority, even though the false statement as originally made is not presented as irony or hyperbole or fiction but as fact. I know of no case announcing or applying such a rule.

Gordon's later statement of his intention makes no difference. The question is what the ordinary reader would understand from the words he published when he published them. The majority rightly notes that a distinction must be drawn between narrative fiction and false statements of fact. See maj. op. at 306. Fiction enjoys the full protection of the first amendment, see Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct. 777, 780, 96 L.Ed. 1098 (1952), whereas false statements of fact have little or no constitutional value. See Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964). Our differences center on how a judge should arrive at the legal conclusion that he has before him one or the other type of speech. I would adhere to the well-settled view that the words should be evaluated by the meaning a reasonable reader would draw from them. This provides an objective standard upon which writers and speakers can rely. It also confines the discretion of judges, who otherwise are free to read speech with which they agree as "fictional" and speech they find offensive as "false." I think the majority's view leads to uncertainty in the law in the very area where vagueness is to be most avoided. It also allows judges to mask their like or dislike for certain expression behind an unreviewable personal determination that it constitutes fact or fiction.

My concurring colleague questions the objectivity of the "reasonable reader" standard, but offers no viable alternative. Indeed, there is none. As she puts it "the same words may indeed be `reasonably understood' . . . by reasonable minds to mean different things." Concurring Opinion at 314. Of course, this line of argument would destroy rules that have stood for centuries and leave much of our law standardless. The very development of the "reasonable person" standard in the negligence area, reflects a desire to lift the determination of liability a rung above the purely ad hoc and impressionistic. See, e.g., Restatement (Second) Torts § 283 comment c (1965) ("The standard which the community demands must be an objective and external one, rather than that of individual judgment, good or bad, of the particular individual. It must be the same for all persons since the law can have no favorites.").

Just last Term in Pope v. Illinois, ___ U.S. ___, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), the Supreme Court held that as to the third prong of the Miller obscenity test, "the proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political or scientific value in allegedly obscene material, but whether a reasonable person would find value in the material. . . ." Id. 107 S.Ct. at 1921 (emphasis added). First amendment freedoms here, as in the area of obscenity, are best protected by a reasonable person standard. A writer or speaker can far more readily predict the meaning a "reasonable reader" will take from his words than the meaning a majority of unknown appellate judges will later attribute to him based on subjective standards of their own.

If, as the majority suggests, Gordon is less than adept at the use of words, see maj. op. at 306, that is a factor the Postal Service might well consider in deciding the appropriate degree of severity in the discipline it imposes. Discharge was not the required penalty. But that consideration does not affect the question whether a statement, clearly actionable or punishable when made, can be invested with first amendment protection by a later statement that irony was intended.

The Supreme Court's decisions contradict both of the majority's new rules. In Rankin, the Court squarely rejected the contention that McPherson's repetition of her statement, without its context, at the request of constable Rankin could strip the statement in context of its first amendment protection. 107 S.Ct. at 2898 n. 10. The Court explained, "[a] public employer may not divorce a statement made by an employee from its context by requiring the employee to repeat the statement, and use that statement standing alone as the basis for a discharge." Id. Rankin therefore could not defeat the protected status of McPherson's statement by calling her on the carpet with a request to repeat the statement while ignoring the statement's original meaning in context. Similarly here, Gordon cannot acquire first amendment protection for his statement, unprotected in its original context, by later explaining the statement away as ironical. Rankin thus demonstrates that the contextual meaning of speech in the first instance, not retroactive rationalizations of its meaning by employer or employee, must govern the inquiry into first amendment protection of speech.

In Connick, the Court assessed the protected status of the questions in Myers' questionnaire by reference to what the questionnaire, "if released to the public, would convey." 461 U.S. at 148, 103 S.Ct. at 1691. This is obviously a reference to what "the public," i.e., typical readers, would understand the questions in the questionnaire to say; as such, the approach in Connick clearly runs contrary to the majority's new rules in this case.

In Greenbelt Coop. Publishing Ass'n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed. 2d 6 (1970), a newspaper reported a public debate on zoning variances at city council meetings, repeating several times in two articles that some people had characterized the negotiating position of Bresler, a builder and developer, as "blackmail." Bresler's suit alleged that the speakers at the meeting had charged him with the crime of blackmail and the newspaper, knowing that he had committed no such crime, had knowingly printed a falsehood. The Court did not, as the majority here does, hold that the publication was protected because the accusation of blackmail was "related to," or "in the midst of" a discussion of a matter of public concern, nor did the Court focus on the author's subsequent statement at trial that she had not "intended" the article to be a literal transcription of what was said at the meeting. See Greenbelt Coop. Publishing Ass'n v. Bresler, 253 Md. 324, 347, 252 A.2d 755 (1969), rev'd, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6. Instead, the Court held the publication protected because no one reading the words at the time would take them as a statement of fact.

It is simply impossible to believe that a reader who reached the word "blackmail" in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable.

Id. 398 U.S. at 14, 90 S.Ct. at 1542 (footnote omitted).

In Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974), a union newsletter, the Carrier's Corner, published plaintiffs' names under the heading "List of Scabs" because they had not joined the union. Above the list was a vehemently derogatory definition of the word "scab," which included the statement that a scab is "a traitor to his God, his country, his family and his class." Plaintiffs obtained libel judgments but the Supreme Court reversed. The opinion quoted the passage from Bresler set out above and continued:

It is similarly impossible to believe that any reader of the Carrier's Corner would have understood the newsletter to be charging the appellees with committing the criminal offense of treason. As in Bresler, Jack London's "definition of a scab" is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join.

Id. at 285-86, 94 S.Ct. at 2782 (footnote omitted). The Court did not, as the majority does, hold that the statement was protected because it appeared in the context of an assertion of the virtues of belonging to a union. The Court held the statement protected because no reader would take it literally. Indeed, the rule the Supreme Court applies, and the majority does not, is hornbook defamation law: "words are to be taken in the sense in which they are reasonably understood under the circumstances, and are to be presumed to have the meaning ordinarily attached to them by those familiar with the language used." W. Keeton, D. Dobbs, R. Keeton D. Owen, Prosser and Keeton on the Law of Torts § 111, at 781 (5th ed. 1984) (footnote omitted).

That, as the cases show, is also the first amendment test: what the reader would understand. The first amendment's application does not depend on whether the writer later says he meant something else. If the latter were the test, as the majority would make it, no libel or slander action would ever lie if the writer or speaker subsequently retracted. That is not the law. A retraction may affect the measure of damages, just as Gordon's retraction might reasonably have affected the measure of discipline. These are matters of the mitigation of the harm caused. See infra pp. 330. "[T]here are partial defenses open to the defendant, which will not avoid his liability, but will go to reduce the damages recovered by the plaintiff. Perhaps the most important of these is a retraction of the defamatory statement." W. Keeton, D. Dobbs, R. Keeton D. Owen, supra, § 116A, at 845. In neither a defamation nor an employee discipline case does a retraction suddenly and retrospectively bring the full protection of the first amendment to bear upon a statement actionable or punishable when first made.

Both of the points discussed are illustrated by an analogy the majority has not succeeded in distinguishing. It is obvious that Gordon's falsehood would receive no protection if he chose to dramatize his column by saying that a named fellow worker read the mail and told him about it. This would be a routinely actionable libel of that worker, a false statement made with "actual malice" as defined by New York Times, and no one, I trust, would suppose that Gordon could escape liability because the libel was placed within the same discussion of labor issues or because he later said the statement was intended ironically and was not true.

There is no apparent reason why Gordon's false statement should fare better under the first amendment because it relates his own misconduct rather than that of another. In both cases the statement causes harm: in one case, to a fellow worker; in this case, to the Postal Service and hence to the public.

The unworkability of the majority's first amendment innovations is further demonstrated by another analogy. Suppose that an airline passenger complained at length to a stewardess about the inadequacy of the airline's security arrangements and said he could prove his point because he had managed to bring a bomb on board in his carry-on luggage. When arrested, the passenger proves he has no bomb, his statement was false, and he claims he made it to dramatize his point. The bomb statement is not merely a dramatic device but it is "inextricably bound up" in the context of a discourse on a matter of public concern aimed at a relevant audience and it has been retracted. If the majority is serious about its principles, it would have to hold the statement not punishable because of the first amendment. The majority now attempts to avoid the necessary implications of its newly created first amendment doctrine by saying that this example is "ridiculous" because the majority would not countenance "wildly irresponsible or damaging statements" that "clearly out-weigh an employee's interest in freedom of expression." Maj. op. at 309 n. 27. It is comforting to know that the majority would not countenance such speech but the rules it has created would. If the majority insists upon a public employee speech context, the rules it has created would countenance a false statement in the union newsletter that the writer's thoughts about the values of unionism were prompted by the fact that a named supervisor coerced non-union employees to make kickbacks to keep their jobs because those employees had no union to turn to for protection. Perhaps the majority would also require a later statement that irony had been intended.

IV.

Given my view that the first amendment's application to libel law and to employee discharge law are quite similar, it is worth saying a word about another recent case involving statements made in a published column. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), plaintiff Ollman, who had been a candidate for the chairman of the department of politics and government at the University of Maryland, and a focus of public political controversy because of his Marxist views and their relationship to his teaching, sued the columnists Evans and Novak for, among other things, publishing the remark of an unidentified political scientist that "Ollman has no status within the profession, but is a pure and simple activist."

In Ollman, I thought the statement protected by the first amendment for several reasons: (1) Ollman, by his own actions, had entered a political arena where heated discourse was to be expected and must be protected; (2) the "fact" of academic status was wholly unsuitable for trial; and (3) the statement of "no status" was not of the kind that a reader would accept as an assertion of hard fact and appeared in a context that further indicated to the reader that it was, in the Supreme Court's terminology, "rhetorical hyperbole."

None of these reasons applies to the case before us: (1) the Postal Service has not entered a political arena in which it has to accept the assertion that its employees read and publish the contents of mail; (2) the fact here does not even require a trial since it is stipulated that Gordon's statement is false; and (3) the assertion was of the kind that a reader would understand to be one of hard fact and nothing about the statement or the context in which it appeared in any way suggested that it was rhetorical hyperbole.

The majority refers to my concern, expressed in Ollman, that making the statement involved in that case actionable "would burden freedom of speech or press." Maj. op. at 310. The suggestion that prohibiting Gordon from discussing the contents of the mail he sorts burdens his right to free speech in the same way libel suits threaten a free press is to stretch analogy well past the breaking point. In the libel area, we protect inaccurate speech so as to avoid chilling true speech. See New York Times, 376 U.S. at 299, 84 S.Ct. at 736. In this case, there is no need to protect Gordon's disclosure of the contents of the mail in order to avoid discouraging his speech advocating unionism. Indeed, it is undisputed that the postal service never sought to interfere with Gordon's pro-union speech until it included an assertion that he read the mails.

The majority also misunderstands my Ollman opinion when it suggests that the "totality of the circumstances" test I applied there should exonerate Gordon's statements here. The totality of the circumstances is relevant to determine whether a reasonable reader would understand a statement to be one of fact or, as the Supreme Court puts it, "rhetorical hyperbole." Gordon's statement was one of fact, and the majority points to not a single circumstance, let alone a totality, that would suggest otherwise to a reasonable reader.

V.

If Gordon's statement of his own misconduct were entitled to some degree of protection requiring a judicial balancing of his first amendment rights against the injury to the operations of the Postal Service, I would find that the Postal Service was justified in disciplining him. Connick states that the government's "burden in justifying a particular discharge varies depending on the nature of the employee's expression," 461 U.S. at 150, 103 S.Ct. at 1692 (emphasis added). Even if one assumes that a flat, factual, and false assertion of one's own misconduct receives minimal first amendment protection, the injury necessary to outweigh that protection and justify the discharge of the person claiming his own misbehavior need not be great. The injury to public confidence and employee discipline here asserted by the Postal Service easily exceeds the required degree of injury. The injury here results from the statement's matter-of-fact quality. Whether the reader is a member of the general public who sees that his mail may routinely be read and published or a fellow postal worker who sees that he may with impunity read and publicly discuss mail, the injury to the Postal Service is obviously substantial.

Nothing in the jurisprudence of the first amendment requires the government here to prove the clear harm to the Postal Service. The reason is clear: many injuries that everyone would agree do occur are provable, if at all, only with a difficulty disproportionate to the proof's usefulness. Accordingly, the Supreme Court has often permitted government employers to assert injury to governmental operations from protected speech without presenting proof of the injury. See, e.g., Connick, 461 U.S. at 151, 103 S.Ct. at 1692 (despite "no demonstration" of injury, employer's reasonable claim of injury upheld); Pickering, 391 U.S. at 571, 88 S.Ct. at 1736 (employer permitted to raise argument that speech was " per se detrimental" to employer "absent any evidence" of its "actual effect"); see also Dun Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (first amendment permits presumed damages for knowing libels). The majority avoids the common sense conclusion that Gordon's interest in dramatic flair or shock value is out-weighed by its harm to public confidence in the mails only by seriously distorting the Pickering balance.

The majority begins by placing the wrong values in the scales. It does not weigh Gordon's interest in making the statement for which he was discharged against the Postal Service's legitimate concerns. Instead, it finds that the Service's interests "clearly cannot validate abridging [Gordon's] first amendment interest in writing about right-to-work legislation and its perceived threat to the labor movement." Maj. op. at 305. This runs directly counter to the Supreme Court's approach in Rankin. The Rankin Court did not weigh McPherson's undisputed right to "address the policies of the President's administration" against the public employer's interests. Rather it balanced her interest in making the discrete statement which resulted in her dismissal against the efficiency interests of the constable's office. See Rankin, 107 S.Ct. at 2898. Cf. Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 575, 50 L.Ed. 2d 471 (1977) (expressing concern that public employees not be able to insulate themselves from otherwise justified discharge by engaging in protected conduct).

A second flaw in the majority's analysis is its failure in striking the Pickering balance to consider the fact that Gordon's statement is false. The Supreme Court has told us that

[t]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social or political change is to be affected.

Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).

Even if Gordon's falsehood concerning a matter of internal postal operations is entitled to some first amendment protection, its falsity should be a powerful, and in my view dispositive, factor in the Pickering balance. Indeed, such is the law of this circuit as pronounced by the author of today's majority opinion. See Hanson v. Hoffman, 628 F.2d 42, 50 (D.C. Cir. 1980) (Wald, J.) ("Some of the factors that appear to have entered into the `balancing' in such cases include . . . the truth or falsity of the employee's statement."); accord Ring v. Schlesinger, 502 F.2d 479, 489 (D.C. Cir. 1974); see also Harper v. Blumenthal, 478 F.Supp. 176, 182 (D.D.C. 1979) (Sirica, J.) ("Proportionally more weight [is] to be given to the harm caused, based on the extent to which the [employee's] statement was accurate or erroneous.").

The majority seeks to avoid the teaching of its own precedents by recasting Gordon's statements as "narrative fiction." See maj. op. at 306. But as I have already noted above, the column itself gives absolutely no indication that it is recounting anything but hard fact. In Connick, the Supreme Court found that "it require[d] no unusual insight" to conclude that Meyers' questions "no less than forcefully stated opinions and facts" carried a message likely to disrupt the district attorney's office. See Connick, 461 U.S. at 152, 103 S.Ct. at 1693. Here we deal not with questions but with declaratory sentences without any hint of ambiguity or secondary meaning. For that reason, the exculpatory characterization of Gordon's falsehood as "narrative fiction" defies comprehension.

The majority's trivialization of the Postal Service's interest in safeguarding the mails is particularly disturbing in a case involving the confidentiality of political expression. The Postal Service asserts harm to two distinct interests in this case. First, it argues that its ability to require respect for the confidentiality of the mail from its workforce has been severely undermined. The majority does not even address this concern despite Rankin's command to consider "whether the statement impairs discipline by superiors." See Rankin, 107 S.Ct. at 2899. The majority's silence on this point is particularly discerting in light of the district court's finding that Gordon's letter "created a clear implication that postal workers could disclose the contents of mail they had seen at work if it suited their personal advantage." American Postal Workers Union v. United States Postal Service, 603 F.Supp. 393, 397 (D.D.C. 1985). As the district court recognized, the only method for the Postal Service to rebut that "clear implication" was to discipline Gordon. Id.

While the majority does recognize that the Postal Service has a legitimate interest in preserving public confidence in the confidentiality of the mails, it refuses to draw the logical conclusion that Gordon's statement damaged that confidence. In so doing, the majority completely ignores well-settled precedent in this area.

In Pickering, the Supreme Court expressly contemplated the possibility that certain statements could, by their very nature, be presumed to interfere with a public employer's operations. There the Court found that "an accusation that too much money is being spent on athletics . . . cannot reasonably be regarded as per se detrimental to the district's schools." Pickering, 391 U.S. at 571, 88 S.Ct. at 1736 (emphasis added). The Court was careful to note that Pickering's letter was published after the defeat of the school bond issue at the polls, and thus Pickering's erroneous statements concerning school funding could not have affected the school district's ability to raise money. Id.

In Connick, the district court placed the burden on the government to "clearly demonstrate" that the employee's speech "substantially interfered" with the employer's interests. Connick, 461 U.S. at 150, 103 S.Ct. at 1691. The Supreme Court found such a stringent requirement of proof unwarranted, stating:

[W]e do not see the necessity for a public employer to allow events to unfold to the extent that disruption of the office and the destruction of working relationships is manifest before taking action.

Connick, 461 U.S. at 152, 103 S.Ct. at 1692.

Applying this principle, the Court found that Meyers' first amendment interests did "not require that Connick tolerate action which he reasonably believed would disrupt the office." Connick, 461 U.S. at 154, 103 S.Ct. at 1694. See also Patkus v. Sangamon-Cass Consortium, 769 F.2d 1251, 1258 (7th Cir. 1985) (In striking the Pickering balance, "[t]he reviewing court is to look at the ordinary or foreseeable effect of the conduct in controversy."); Kannisto v. San Francisco, 541 F.2d 841, 844 (9th Cir. 1976) (police officer's statement made at roll call that he violated superior's orders "can be presumed to have had a substantial disruptive influence on the regular operation of the department") (citation omitted), cert. denied, 430 U.S. 931, 97 S.Ct. 1552, 51 L.Ed.2d 775 (1977).

The majority argues that Rankin worked a fundamental change in this jurisprudence. According to the majority, the view that certain harms can be presumed to flow logically from certain speech "is even less tenable" after Rankin. Maj. op. at 303 n. 12. I think the majority misreads Rankin in several respects.

The majority apparently believes that by its use of the word "evidence" in Rankin the Supreme Court overruled Pickering and Connick sub silentio, thereby increasing the public employer's burden of proof in these cases. See maj. op. at 303 n. 12. Putting aside the extreme unlikelihood that the Supreme Court would express its rethinking of Connick (a precedent of some four years vintage) in such cryptic tones, I think the majority misconstrues the Rankin Court's statement. In the context of both the libel and public employee cases "evidence" of harm has been taken to mean proof of the damaging nature of the statement and its circulation. See Connick, 461 U.S. at 154, 103 S.Ct. at 1693; Gertz, 418 U.S. at 349-50, 94 S.Ct. at 3011-12; Dun Bradstreet, 472 U.S. at 760-61, 105 S.Ct. at 2946, cf. C. Wright R. Graham, Federal Practice and Procedure, § 5163 (1978) ("[E]vidence is that which is offered as a basis for inference.").

In Rankin neither the damaging nature of the statement nor a degree of dissemination likely to cause harm was shown. It was in light of these circumstances that the Court found "no evidence" of damage to the employer's interests. See Rankin, 107 S.Ct. at 2899. Here, in contrast, the statement is damaging on its face and was circulated to a wide audience.

In fact, Rankin did not even deal with a claim that public confidence in the agency had been undermined. The Rankin Court emphasized that there was no "danger that McPherson had discredited the office by making her statement in public." Rankin, 107 S.Ct. at 2899. McPherson's oral remark was made in private conversation with another employee in an area to which the public was not admitted. Id. The Court also observed that McPherson "serv[es] no confidential, policymaking or public contact" role in the agency. Id. at 2900.

In contrast, Gordon's statement was mailed to the homes of 2,100 present and retired postal workers. Evidence was produced at the arbitration hearing which indicated that Gordon regularly showed copies of the Communicator to non-postal workers. See J.A. at 188. Nor was the circulation of Gordon's damaging falsehood limited to workers at the Royal Oak Post Office. The record reveals that the Communicator is mailed to local offices of the American Postal Workers' Union around the country. See J.A. at 30. In light of these facts, the majority's reliance on Rankin for the proposition that Gordon's "limited audience" muted any damage to the public's confidence in the privacy of the mailstream falls far wide of the mark. The Rankin Court was presented with no facts from which an inference of harm could arise. Nowhere did the Court indicate its intention to overrule Pickering and Connick by holding that such a presumption could never support an employee discharge. In fact, Justice Powell, a member of the majority of five in Rankin, indicated the opposite intention. He wrote:

I do not read the Court's opinion as extending the Connick/Pickering test, or otherwise making it more difficult for employers to discipline workers whose speech interferes with [the employer's] goals.

Rankin, 107 S.Ct. at 2901 (Powell, J., concurring). See also Jungels v. Pierce, 825 F.2d 1127, 1132 (7th Cir. 1987) (Post- Rankin decision indicating that harm to city government's ability to maintain trust of Hispanic residents flowing from civil servant's anti-Hispanic statements could be demonstrated by affidavit.). Thus, Rankin did not purport to increase the evidentiary burden a public employer must meet, rather it is today's majority opinion which works that change in the law.

VI.

I comment briefly on two of the majority's other points. The distinction between third- and first-class mail on which the majority relies, maj. op. at 305 n. 16, is irrelevant. Nothing in Gordon's column suggests to his readers that he would hesitate to read and discuss the contents of a first-class letter. More to the point, it was stipulated by the parties that Rep. Crane's letter was entitled to the same protections against unauthorized disclosure as first-class mail. J.A. at 73. The piece of mail involved in this case was not some advertising circular addressed to "occupant" with contents open to view. It was a sealed envelope addressed to a specific person. Although the harm might be greater if Gordon had said he had opened and read a first-class letter, the harm from what he actually said he had done remains.

The majority is also mistaken in believing that Gordon's retraction was adequate to dissipate the harm caused by Gordon's statement. The retraction was not published until a full month later and was placed, without headline, at the end of Gordon's discussion of a completely different topic. Since a retraction's mitigation of a particular injury is always somewhat dubious given "our experience that the truth rarely catches up with a lie," Gertz v. Robert Welch, Inc., 418 U.S. at 344 n. 9, 94 S.Ct. at 3009 n. 9, even a far more effective retraction might well not have sufficed to eliminate the harm caused by Gordon's false statement. Indeed, Gordon's retraction may actually have inflicted additional damage on the Postal Service, since in the retraction Gordon published a falsehood again by saying that he never sorted third-class mail, J.A. at 73, 290. In the eyes of readers who knew Gordon and thus could recognize this statement as untrue, his retraction might well appear insincere and hence a further flouting of the Postal Service's authority. Be that as it may, the retraction here cannot be said to dissipate the harm caused by Gordon's original statement of his misconduct.

Perhaps the majority, like the district court, is impelled by a feeling that the sanction applied to Gordon was unreasonably severe. However that may be, it provides no reason to deform the settled law of the first amendment. Today's decision works such a deformation and, moreover, fails to give adequate weight to the first amendment interest in free communication through the mails.

I dissent.