The Volokh Conspiracy
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Ban on Town Employees' Displaying Thin Blue Line American Flag Imagery on Town Property Violates First Amendment
From Tuesday's decision in Fraternal Order of Police v. Township of Springfield, decided by Judge Paul Matey, joined by Judge Anthony Scirica, concluding that the policy was unconstitutional:
The "Thin Blue Line American Flag" ("the Flag") is "a black and white American flag." "All of the horizontal stripes are black and white with the exception of one horizontal stripe that is blue." For Plaintiffs it "represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers." In March 2020, the PBA {Springfield Township Police Benevolent Association} incorporated the Flag into its logo, which it uses at fundraisers, some of which occur on Township property. Individual Plaintiffs wish to continue to display the Flag on both personal and Township property. And the PBA wants to continue hosting events on Township property, displaying its logo and the Flag.
In 2021, Township Commissioners met with the PBA and asked them to remove the Flag from their logo. The PBA declined, and in response, the Township passed Resolution No. 1592 "prohibit[ing] 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." The Resolution contains three specific prohibitions:
1) 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).
2) 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.
3) 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.
The First Amendment protects the free speech of government employees when they speak "'as citizens' rather than 'pursuant to their official duties,'" as long as their speech regards "'matters of public concern' rather than mere 'personal interest.'" "Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public."
But an employee's right to speak on matters of public concern is not unlimited. We must "balance … the interests of the [employee], 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." Pickering v. Bd. of Ed. (1968). That balance "depends on whether the employer imposed a prior restraint on speech or disciplined an employee after the fact." Because when an employer imposes a prior restraint, "the Government's burden is greater … than with respect to an isolated disciplinary action." United States v. Nat'l Treasury Emps. Union (1995). So, we "must consider not just the specific speech that concerned the government, but [also] the 'broad range of present and future expression' that the rule chills and the interests of present and future speakers and audiences." …
Defendants concede that Plaintiffs are speaking as private citizens but argue that Plaintiffs' speech is not a matter of public concern. But we previously rejected that argument because speech concerning "'Black Lives Matter,' 'Thin Blue Line,' and anti-mask-mandate masks," comments on political or social concerns of the community. Just as wearing masks supporting Black Lives Matter qualifies as speech on matters of public concern, so too does the Flag in question here.
Because the Resolution and enforcement Memorandum constitute "a policy that prohibit[s] or restrain[s] future speech," we must consider "all present and future expression that the rule may chill." The Township also "bears the burden of showing" that the restricted expression's "'necessary impact on the actual operation of the Government' outweighs that interest." This showing consists of two subparts: "first, that [Defendants] ha[ve] [identified] 'real, not merely conjectural' harms; and second, that the ban as applied … addresses these harms in a 'direct and material way.'"
"To demonstrate 'real, not merely conjectural' harms, a government must not only identify legitimate interests, but also provide evidence that those concerns exist." "The government need not show the existence of actual disruption if it establishes that disruption is likely to occur because of the speech."
The Township has not met its burden. It concedes that it "cannot identify any specific incidents of disruptions" caused by Plaintiffs' use of the Flag. Instead, it points to a 2021 study on policing, which found that African American residents are less likely to cooperate with, and have lower trust in, the Springfield Police Department. But that study was unrelated to the PBA's logo and its display of the Flag. Thus, it cannot support an inference "that disruption is likely to occur because of the speech."
The Township also points to a few complaints from residents who felt that the Flag was offensive. But the Township Manager testified that he was aware of no disruption of services caused by the display of the Flag. And a handful of gripes and grumbles does not resemble "serious disruption caused by protests and riots" impacting public services.
Moreover, the Resolution is not "narrowly tailored to the 'real, not merely conjectural' harm the Township identified." The Resolution applies to "any Township employee, agent[,] or consultant," not just the Police Department. But the Township offers no explanation for how restricting the expression of all employees will increase public trust in the Police Department. And, confusingly, although the Resolution "prohibit[s] the publicly visible display or use of any image that depicts the Thin Blue Line American Flag," the Township concedes that the Resolution permits the display of the "Thin Blue Line Flag" lacking elements of the American flag. That only highlights the underinclusive nature of the restraint, and casts deep doubt on the Township's reasoning. After all, the ban only proscribes the viewpoint the Flag conveys, while giving opposing opinions free rein.
As the District Court observed, "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.'" Such "speech has the same, if not more, potential to cause disruption." Accordingly, this over-and underinclusive policy fails to address the alleged harm "in a 'direct and material way.'"
Judge Patty Shwartz dissented, arguing that the case should go to trial:
To some, the TBLAF represents police solidarity. To others, it communicates a white supremacist message, which could erode public trust in the police. When public confidence in law enforcement declines, public safety suffers. As a result, viewing the facts and drawing inferences in the Defendants' favor, a reasonable jury could conclude that the Township's interest—in preventing the erosion of public trust in law enforcement by restricting the display of a symbol associated by some with white supremacy—outweighs the rights of the Fraternal Order of Police and police officers, to display the TBLAF in certain circumstances. As a result, I conclude that the District Court erred in granting Plaintiffs' motion for summary judgment….
Plaintiffs concede that (1) some residents view the TBLAF as a racist, white supremacist hate symbol, and (2) when public trust in the police is eroded, communities are less safe, which is why public trust in the police is an important consideration for local governments. The Majority discounts these concerns, noting that too "few" residents "felt that the [TBLAF] was offensive" and that there were no identified disruptions caused by displaying the TBLAF. However, as the Majority agrees, the "government need not show the existence of actual disruption," and here, the residents' concerns raise an inference, which we must view in their favor, "that disruption is likely to occur." … [F]or summary judgment purposes, the government has satisfied its burden of showing that Defendants' desire to engage in the speech at issue is outweighed by the "impact [of the speech] on the actual operation of the [g]overnment."
{Furthermore, the officers may communicate the same message they seek to profess (i.e., support for law enforcement) via a different symbol that (1) does not convey a racist message, (2) does not undermine the government's interest in fostering community trust in the police, and (3) protects officers' purported reasons for displaying the TBLAF. See App. 959 (FOP President conceding that the "Thin Blue Line" flag, which is different than the TBLAF, has "exactly the same meaning" as the TBLAF with respect to support for law enforcement).}
{The Majority claims that the Resolution's application to "any Township employee, agent[,] or consultant" indicates that it is not narrowly tailored to the identified harm. I do not think this is a concern in this case. Police officers and the FOP are the only parties challenging the Resolution and Memorandum here and we therefore need not reach the Resolution and Memorandum's application to other employees or groups. Even if we did, the public could infer that an employee's speech through his or her display of the TBLAF demonstrates the Township's endorsement of the message that some think the TBLAF conveys.}
