The Volokh Conspiracy
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Court Strikes Down Ban on Town Employees Displaying "Thin Blue Line" Flag While on Town Property
A Springfield Township (Pennsylvania) resolution provides:
[T]he Board of Commissioners of Springfield Township does, as a matter of respect and sensitivity to all the citizens of the Township, hereby prohibit the publicly visible display or use of any image which depicts the Thin Blue Line American Flag symbol by any Township employee, agent, or consultant and in an effort to be clear and as reasonably limited as possible, specifically prohibits the following:
- The publicly visible depiction of the symbol on the clothing or skin of any Township employee, agent or consultant while on duty, during the workday of the individual or while representing the Township in any way (specifically including the off duty time of any such individual if still wearing the Township uniform).
- The publicly visible depiction of the Thin Blue Line American [F]lag symbol on any personal property of a [T]ownship employee, agent, or consultant, which is brought into the [T]ownship building (except prior to or subsequent to reporting for duty or any official assignment for the Township), and which, in the reasonable opinion of the Township Manager, is placed in a location likely to be seen by a member of the public while visiting the [T]ownship building.
- The display, by installation or affixation of a publicly visible depiction of the symbol, on [T]ownship owned property (including [T]ownship vehicles), by any person.
This violates the First Amendment, Judge Karen Marston (E.D. Pa.) concluded today in Pennsylvania State Lodge, Fraternal Order of Police v. Township of Springfield:
[T]he Resolution is a viewpoint regulation—it prohibits employees, agents, and consultants from displaying only the Thin Blue Line American Flag, not from displaying flags or political speech generally. Instead, the Township argues that the Resolution is a permissible restriction on employee speech even though it targets a specific viewpoint. Given the Supreme Court's consistent assertion that viewpoint discrimination is inherently suspect, the Court questions whether the government can ever permissibly regulate employee speech based on viewpoint. {One exception to this rule is when the government is speaking on its own behalf. But the Township has not argued that [the Resolution] regulates government speech.} …
"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Nevertheless, the Supreme Court has "made clear that public employees do not surrender all their First Amendment rights by reason of their employment." A public employer has limited authority to regulate employee speech when "employees are speaking as citizens about matters of public concern." In such instances, the government may restrict speech only to the extent necessary for it to "operate efficiently and effectively." The Supreme Court first discussed this limitation in Pickering v. Board of Education (1968).
In Pickering, the local board of education dismissed a teacher after he submitted a letter to a local newspaper that was critical about the board's allocation of school funds between academic and athletic programs and about the board's reasons for seeking additional tax revenue. In finding the teacher's dismissal improper, the Court held that "absent proof of false statements, knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment." To determine whether the dismissal passed constitutional muster, the Court weighed "(1) the interest of the employee, 'as a citizen, in commenting upon matters of public concern,' against (2) 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"
Almost 30 years after Pickering, the Supreme Court drew a distinction between pre- enforcement challenges to regulations of employee speech and post-enforcement challenges after an employee is disciplined for a specific statement. See United States v. National Treasury Employees Union (1995) ("[B]ecause § 501(b) constitutes a wholesale deterrent to a broad category of expression by a massive number of potential speakers, the Government's burden here is even greater than it was in Pickering and its progeny, which usually involved individual disciplinary actions taken in response to particular government employees' actual speech."). When the government imposes a "statutory restriction on [employee] expression," it "must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation' of the Government." …
Applying NTEU and its progeny here, the Court has no trouble finding that [the Resolution] regulates speech on a matter of public concern. The Resolution restricts the display of the Thin Blue Line American Flag, a symbol that reflects both a respect for fallen members of law enforcement and protests the Black Lives Matter movement. {The Township repeatedly suggests that the Thin Blue Line American Flag is of limited, if any, public value or concern because it is "offensive" and "racist." But … "the First Amendment protects speech even when it is considered 'offensive.'"} … [Given this, u]nder NTEU, the government "bears the burden of showing that the necessary impact on the actual operation of the Government outweighs [the constitutional interest]" restricted by the Resolution. To satisfy this requirement, the Township must show: (1) it has identified a real, not conjectural, harm, and (2) the ban as applied addresses that harms in a direct and material way….
Under the first inquiry, the Township argues that it has a "real, not conjectural," concern that racial discord will impede the functioning of its police department…. [But t]he Township seems to concede that it has no evidence of workplace disruption caused by the display of the Flag. Neither has it shown that the Flag has caused a "real" disruption to relations between the police and Township residents. {The Township heavily relies on [a] September 2021 presentation as evidence of tension in police-resident relations, but as stated above, the Court cannot consider the presentation because it is inadmissible double hearsay. Even if the presentation were admissible, it suggests only that some residents have reported concerns about potential racial tension with Township police officers. The presentation does not connect those residents' views to the depiction of the Flag by the individual Plaintiffs or other members of the PBA. In other words, the Township has not shown that the display of the Flag has led to an erosion in public trust of the police.}
The Township has pointed to complaints that a handful of residents made to it about the Flag. But even accepting those comments as evidence that the PBA's use of the Flag has caused some strain between residents and the Department, a handful of complaints does not transform the Township's concerns of wide-spread discord from the "conjectural" to the "real." Particularly not when Manager Taylor testified that he was unaware of any disruptions in Township services because of the Flag.
Second, even if the Township could show that it has a real concern that officers' decision to display the Flag will erode public confidence and trust in the Police Department and thus, result in an increase of crime in the future, the Resolution does not address that harm in a direct and material way. Most obviously, the Resolution is not limited to the Township Police Department. Instead, it broadly applies to all Township "employees, agents, and consultants." "This breadth is especially suspect because the ban affects 'core' political speech, an area where fit must be particularly close." Id. Indeed, given that the Resolution prohibits political speech based on a particular viewpoint, its overbreadth is particularly egregious. Also problematic is the fact that the Resolution is not limited to displays of the Flag by Township employees while they are at work. The general prohibition at the beginning of the Resolution has no time or location limitations, and even if the Court focuses on the three subsections, Section One prohibits the Flag's display while an employee is off duty but representing the Township in any way.
In addition to being overbroad, the Resolution is underinclusive in that Township employees, including police officers, are allowed to engage in other forms of discourse that could exacerbate racial tensions and undermine public confidence in the Police Department. For example, nothing in the Resolution precludes an officer, while on duty and in uniform, from voicing opposition to the Black Lives Matter movement or for example, carrying a coffee cup that says, "Blue Lives Matter." Both forms of speech would seem to trigger the same concerns that the Township is trying to address through the Resolution, perhaps in an even more direct way.
In sum, even viewing the admissible evidence in the light most favorable to the Township, the Resolution is an unconstitutional restriction on employee speech under NTEU. Because the Court finds the entire Resolution unconstitutional on this ground, we need not reach Plaintiffs' vagueness and overbreadth arguments. That said, the Court shares Plaintiffs' concerns that as phrased, it is likely difficult for Township employees and residents alike to know to whom the restrictions apply. Similarly, it is unclear where the restrictions apply.
The Resolution's broad prohibition lacks any location limitations, but at other times, the Resolution suggests it is limited to areas in the Township building, which, in the "reasonable opinion of the Township Manager" are "likely to be seen by a member of the public." And even ignoring the inconsistencies, the Court is extremely skeptical of the Township's argument that the Resolution's vagueness is not unconstitutional because employees could simply ask the Township Manager his interpretation before displaying the Flag.
