Greenblott, J. P.
Plaintiff commmenced this action as a proceeding pursuant to CPLR article 78. It was converted, under authority of CPLR 103, to an action for declaratory judgment and permanent injunction by order of Supreme Court, Albany County, entered December 10, 1975.
Plaintiff, Joseph Curie, served for six years as a correction officer at the Elmira Facility of the New York State Department of Correctional Services. Defendants do not allege that he performed those services in other than a competent and even-handed manner.
On September 2, 1975, defendant, Benjamin Ward, as Commissioner of the Department of Correctional Services, issued a [288]*288directive concerning employee membership in the Ku Klux Klan. The directive denounced the Klan and termed it a "threat to the productive administration, substantive programming and appropriate security” of its facilities. The directive also stated the department’s awareness of the sensitive constitutional questions involved, and found that the inmates’ inability to control their environment tips the balance in favor of the inmates’ Eighth Amendment right to humane treatment and against the employees’ First Amendment right of free association. The directive forbade membership in the Ku Klux Klan and ordered disassociation by October 1, 1975 under threat of "appropriate disciplinary action”.
Plaintiff was summoned, on October 2, 1975, to appear before an executive deputy commissioner of the department. On advice of counsel, plaintiff refused to answer questions regarding his membership in the Klan and any activities outside his duties as a correction officer and off the grounds of the correctional facility. He answered questions concerning conduct within the facility.
On October 31, 1975, plaintiff received a notice of discipline dismissing him from service for the stated reasons that his refusal to answer questions at the October 2 interrogation constitutes insubordination and that he is a member of the Ku Klux Klan and, as such, is in violation of the September 2, 1975 directive. Plaintiff sought an injunction restraining the department from carrying out the dismissal or in any other way disciplining him for alleged membership in the Ku Klux Klan, and further sought a declaration that the September 2 directive is unconstitutional and void. Upon plaintiff’s motion for summary judgment, Special Term granted the relief requested.
At issue is plaintiff’s right to freely associate with whomever he pleases and the extent to which defendants may infringe upon that right. Although not specifically enumerated in the Constitution, freedom of association is now considered to be a fundamental right, implicit in the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment (Sheldon v Tucker, 364 US 479). And, even though plaintiff has no right to public employment, he may not be discharged for the exercise of a constitutional right (Perry v Sindermann, 408 US 593; Matter [289]*289of Lichtensteiger v Housing & Development Admin., 40 AD2d 810).
The exercise of First Amendment rights, particularly that of association, is not without limitation (Civil Serv. Comm. v Letter Carriers, 413 US 548). However, a significant abridgment of associational freedom cannot be justified upon a mere showing of a legitimate State interest (Kusper v Pontikes, 414 US 51, 58; Bates v Little Rock, 361 US 516, 524). The interest advanced must be compelling, one of vital importance to the State, and the burden is on the State to show the existence of such an interest (Elrod v Burns, 427 US 347, 362). The courts will closely scrutinize the State’s claimed interest to determine if it outweighs the harm caused by the constitutional encroachment. Furthermore, even if the State should demonstrate a substantial interest, the State must seek to protect its interest using the least drastic means available causing the least injury to fundamental constitutional freedoms (Kusper v Pontikes, supra, p 59; Shelton v Tucker, supra, p 488).
It is clear even upon a cursory examination that the directive in question cannot meet the latter test. The directive bars all employees from membership in the Ku Klux Klan. Yet, taking the Department of Correctional Services’ arguments at face value, only prison guards with membership in the Klan present a danger. Defendants offer no explanation why it is in the State’s paramount interest to ban all other employees of the department.
Examining the directive as if it only applied to correction officers, we still find it constitutionally repugnant. Controlling on these facts is United States v Robel (389 US 258), in which the Federal Government brought a criminal indictment under a statute making it unlawful for any member of a Communist-action organization to work in any defense facility. The court recognized the substantial governmental interest in reducing the threat of sabotage and espionage in the Nation’s defense plants, but noted that the means adopted to protect that interest cut deeply into the right of association. "The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it” (id., p 265). The court concluded that it could not uphold a statute which bars employment for association which may not be proscribed consistently with First Amendment rights. The court did point out that the Government was not without remedy, and that a [290]*290statute tailored properly to the end to be achieved could pass constitutional muster.
In the case at bar, defendants seek to exclude all persons affiliated with the Ku Klux Klan, claiming that that affiliation is disruptive to prison administration and that it prevents the member from properly carrying out his functions. This argument suffers from the same infirmity as the Government’s argument in Robel. It provides no room for examination of the nature of an employee’s affiliation; what he believes to be the goals of the organization, to what extent he adheres to those goals, and to what extent his performance of correctional department duties is affected. Nor does the directive require the defendants to show that membership in the Klan poses the threat that they fear. It is "guilt by association”, and in the area of First Amendment freedoms this cannot be countenanced.
The foregoing analysis makes scant mention of the nature of the State’s interest in promulgating the directive; it, in effect, assumed a valid, compelling interest. Although we need not do so, we comment on the State’s claimed interest for future guidance. We agree that the interests—maintaining proper prison security and protecting inmates from uneven treatment—are laudable and substantial. However, we are not certain that the proofs submitted in the affidavits adequately demonstrate the dangers that the defendants fear are threatening those interests, particularly in view of plaintiff’s past unblemished record.
Supporting their claim that the Klan’s presence in the correctional facilities will be disruptive, defendants offer three articles documenting the violent and racist history of the Klan. Even accepting the truth of the numerous allegations in those articles, more than a decade has passed since the articles were prepared, and more time still since the events portrayed took place. Further, none of the acts took place in this area.
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Greenblott, J. P.
Plaintiff commmenced this action as a proceeding pursuant to CPLR article 78. It was converted, under authority of CPLR 103, to an action for declaratory judgment and permanent injunction by order of Supreme Court, Albany County, entered December 10, 1975.
Plaintiff, Joseph Curie, served for six years as a correction officer at the Elmira Facility of the New York State Department of Correctional Services. Defendants do not allege that he performed those services in other than a competent and even-handed manner.
On September 2, 1975, defendant, Benjamin Ward, as Commissioner of the Department of Correctional Services, issued a [288]*288directive concerning employee membership in the Ku Klux Klan. The directive denounced the Klan and termed it a "threat to the productive administration, substantive programming and appropriate security” of its facilities. The directive also stated the department’s awareness of the sensitive constitutional questions involved, and found that the inmates’ inability to control their environment tips the balance in favor of the inmates’ Eighth Amendment right to humane treatment and against the employees’ First Amendment right of free association. The directive forbade membership in the Ku Klux Klan and ordered disassociation by October 1, 1975 under threat of "appropriate disciplinary action”.
Plaintiff was summoned, on October 2, 1975, to appear before an executive deputy commissioner of the department. On advice of counsel, plaintiff refused to answer questions regarding his membership in the Klan and any activities outside his duties as a correction officer and off the grounds of the correctional facility. He answered questions concerning conduct within the facility.
On October 31, 1975, plaintiff received a notice of discipline dismissing him from service for the stated reasons that his refusal to answer questions at the October 2 interrogation constitutes insubordination and that he is a member of the Ku Klux Klan and, as such, is in violation of the September 2, 1975 directive. Plaintiff sought an injunction restraining the department from carrying out the dismissal or in any other way disciplining him for alleged membership in the Ku Klux Klan, and further sought a declaration that the September 2 directive is unconstitutional and void. Upon plaintiff’s motion for summary judgment, Special Term granted the relief requested.
At issue is plaintiff’s right to freely associate with whomever he pleases and the extent to which defendants may infringe upon that right. Although not specifically enumerated in the Constitution, freedom of association is now considered to be a fundamental right, implicit in the First Amendment to the United States Constitution, as applied to the States through the Fourteenth Amendment (Sheldon v Tucker, 364 US 479). And, even though plaintiff has no right to public employment, he may not be discharged for the exercise of a constitutional right (Perry v Sindermann, 408 US 593; Matter [289]*289of Lichtensteiger v Housing & Development Admin., 40 AD2d 810).
The exercise of First Amendment rights, particularly that of association, is not without limitation (Civil Serv. Comm. v Letter Carriers, 413 US 548). However, a significant abridgment of associational freedom cannot be justified upon a mere showing of a legitimate State interest (Kusper v Pontikes, 414 US 51, 58; Bates v Little Rock, 361 US 516, 524). The interest advanced must be compelling, one of vital importance to the State, and the burden is on the State to show the existence of such an interest (Elrod v Burns, 427 US 347, 362). The courts will closely scrutinize the State’s claimed interest to determine if it outweighs the harm caused by the constitutional encroachment. Furthermore, even if the State should demonstrate a substantial interest, the State must seek to protect its interest using the least drastic means available causing the least injury to fundamental constitutional freedoms (Kusper v Pontikes, supra, p 59; Shelton v Tucker, supra, p 488).
It is clear even upon a cursory examination that the directive in question cannot meet the latter test. The directive bars all employees from membership in the Ku Klux Klan. Yet, taking the Department of Correctional Services’ arguments at face value, only prison guards with membership in the Klan present a danger. Defendants offer no explanation why it is in the State’s paramount interest to ban all other employees of the department.
Examining the directive as if it only applied to correction officers, we still find it constitutionally repugnant. Controlling on these facts is United States v Robel (389 US 258), in which the Federal Government brought a criminal indictment under a statute making it unlawful for any member of a Communist-action organization to work in any defense facility. The court recognized the substantial governmental interest in reducing the threat of sabotage and espionage in the Nation’s defense plants, but noted that the means adopted to protect that interest cut deeply into the right of association. "The statute quite literally establishes guilt by association alone, without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it” (id., p 265). The court concluded that it could not uphold a statute which bars employment for association which may not be proscribed consistently with First Amendment rights. The court did point out that the Government was not without remedy, and that a [290]*290statute tailored properly to the end to be achieved could pass constitutional muster.
In the case at bar, defendants seek to exclude all persons affiliated with the Ku Klux Klan, claiming that that affiliation is disruptive to prison administration and that it prevents the member from properly carrying out his functions. This argument suffers from the same infirmity as the Government’s argument in Robel. It provides no room for examination of the nature of an employee’s affiliation; what he believes to be the goals of the organization, to what extent he adheres to those goals, and to what extent his performance of correctional department duties is affected. Nor does the directive require the defendants to show that membership in the Klan poses the threat that they fear. It is "guilt by association”, and in the area of First Amendment freedoms this cannot be countenanced.
The foregoing analysis makes scant mention of the nature of the State’s interest in promulgating the directive; it, in effect, assumed a valid, compelling interest. Although we need not do so, we comment on the State’s claimed interest for future guidance. We agree that the interests—maintaining proper prison security and protecting inmates from uneven treatment—are laudable and substantial. However, we are not certain that the proofs submitted in the affidavits adequately demonstrate the dangers that the defendants fear are threatening those interests, particularly in view of plaintiff’s past unblemished record.
Supporting their claim that the Klan’s presence in the correctional facilities will be disruptive, defendants offer three articles documenting the violent and racist history of the Klan. Even accepting the truth of the numerous allegations in those articles, more than a decade has passed since the articles were prepared, and more time still since the events portrayed took place. Further, none of the acts took place in this area. Are we to assume that the current New York chapters hold to the same ideals and will act in a similar manner? The inferential gap is too great. Absent proof of recent Klan activities within the region, we are unable to credit defendants’ characterizations of the Ku Klux Klan.
We are also troubled by the nature of the proofs supporting the claim that inmate fear of the Klan will disrupt the delicate peace of the correctional facilities. No evidence pertinent to the plaintiff’s facility is offered.
[291]*291We agree with defendants’ contention that the standard set down in Tinker v Des Moines School Dist. (393 US 503) applies here. The one who would abridge constitutional freedoms must demonstrate the disruption that the exercise of that freedom has caused to others in the institution. Defendants simply have failed to meet that burden. In the area of constitutionally protected action, we cannot rule on the basis of unfounded speculation.
To conclude, we reiterate our sympathy with the State’s interest in a safe and efficient administration of its prison facilities. However, the method chosen treads too broadly on constitutional rights and cannot stand. Further, the defendants’ offerings are inadequate proof that the dangers they fear truly exist. Finally, we are fearful that the challenged directive will not achieve the result the defendants hope for. Rather, tranquility and elimination of discrimination in the prisons will come only through a thorough examination of the practices of all corrections officers and by ferreting out those who violate departmental policy within the facilities.
This appeal also raises for review defendants’ contention that they can lawfully inquire into plaintiff’s associations. We hardly think this contention need be answered in light of our voiding of the directive, but we do note that even in the asking the State bears a heavy burden to show that the inquiry is necessary to protect a legitimate State interest (Baird v State Bar of Arizona, 401 US 1, 6-7). Where, as here, the State has failed to establish the danger of plaintiff’s alleged associations, it cannot meet that burden.
The order and judgment should be affirmed, with costs.