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Banning "Black Lives Matter" masks
violated the 1st amendment

Local 85 v. Port Authority of Allegheny County (3rd Cir 06/29/2022)
Sent to Custom Alerts™ subscribers on 07/01/2022

Port Authority, a bus and light-rail operator, required its uniformed employees to wear face masks. Employees and their union sued, alleging their 1st Amendment rights were violated by being disciplined for, and restricted from, wearing political and social-protest face masks at work.

The trial court entered a preliminary injunction rescinding the discipline and preventing the employer from enforcing its policy. The 3rd Circuit affirmed, finding that "Port Authority has not shown that its mask policies withstand constitutional scrutiny."

Port Authority has long prohibited its uniformed employees from wearing buttons "of a political or social protest nature," but Port Authority enforced its pin-and-button prohibition laxly. Bus operators wore buttons supporting national and local political candidates, and candidates for union office. Wearing these buttons did not occasion discipline, even though doing so violated Port Authority's long-standing uniform policies. Other employees, including instructors, also wore political buttons without incident.

Masks commenting on social issues have not interrupted Port Authority's operations, though they have created tension among Port Authority employees.

The court found that the employees were speaking "as citizens" rather than "pursuant to their official duties." In the court's words: "Port Authority did not hire these employees to express their views on political and social issues. So, their speech on these issues was not 'pursuant to their official duties.'"

The court also found that Port Authority's mask rules restrict speech on matters of public concern. Quoting the court: "'Black Lives Matter,' 'Thin Blue Line,' and anti-mask-mandate masks all comment on matters of 'political [or] social . . . concern to the community' that are 'subject[s] of legitimate news interest.'"

The court then found that Port Authority could not show that its interests outweigh those of its employees. Port Authority was able to show only minimal risk that the employees' speech would cause workplace disruption, and failed to show its policy was narrowly tailored to prevent anticipated harms.

The court cautioned that its "decision is narrow," and based on the specific facts and circumstances of this case.

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