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Banning "Black Lives Matter"
violated the 1st amendment
Local 85 v. Port Authority of Allegheny County (3rd
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
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
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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