Court blocks policy banning BLM masks: 4 things you need to know

Another lawsuit involving Black Lives Matter (BLM) face masks has reached a federal appeals court. This time, the Third Circuit sided with employees – and blocked the enforcement of a policy that prohibited employees from wearing face masks that feature BLM and other “political or social-protest messages.”

As you may recall, last month the First Circuit rejected Title VII race discrimination claims brought by employees who were disciplined for wearing BLM masks at a Whole Foods in Massachusetts.

But this case – involving Pennsylvania public employees who alleged First Amendment violations – turned out differently. Here’s what happened:

Employer bans BLM masks

Shortly after the COVID-19 pandemic hit, the Port Authority of Allegheny County began requiring uniformed employees to wear face masks at work. Before long, employees began to wear face coverings with a variety of political messages, including those that featured the BLM logo and showed support for candidates running in the then-upcoming – and hotly contested — 2020 election.  

As an FYI, the Port Authority has long prohibited its uniformed employees from wearing pins and buttons “of a political or social protest nature.” Expressing concern that some masks would disrupt the workplace, the Port Authority extended this prohibition to face masks in July 2020.  When a group of employees continued to wear BLM masks despite the new rule, they faced discipline under the policy.

Then in September, the Port Authority was finally able to obtain face masks after nationwide shortages. As such, it distributed masks to employees and revised its uniform policy again. This revision imposed additional restrictions on face masks. Specifically, employees’ choices regarding face coverings were limited to masks featuring the Port Authority logo, the union logo,  or solid-colored masks without “any visible logos, images, texts or other markings.”

The employees and their union filed a First Amendment lawsuit.  

According to the testimony of several employees, the Port Authority had been lax in the enforcement of its dress code rules. For example, bus drivers testified that they’d worn pins and buttons showing support for well-known political candidates, including “Bernie Sanders, Hillary, Trump, Obama, Biden,” and local candidates. They testified that they were not disciplined, even though the aforementioned items violated the longstanding uniform policy.

Moreover, employees testified that the Port Authority itself “speaks” on political issues and “decorates buses to celebrate causes it supports.” Specifically, employees testified that the Port Authority “endorses Black Lives Matter” and has buses in its fleet that were “decorated to support gay pride.”

The district court granted a preliminary injunction that rescinded the July 2020 discipline and also blocked the enforcement of the policy against BLM masks.

The Port Authority appealed to the Third Circuit.

To determine whether a preliminary injunction is appropriate, courts look at four factors: 1) whether the movant is likely to win the claim; 2) whether irreparable harm would result if the injunction was not granted; 3) whether the relief would result in greater harm to the non-moving party, and 4) whether the relief is in the public interest.

Here, the Third Circuit turned to the first factor: the likelihood of success on the free speech claim.

Free speech in the public sector

First things first: As a government employer, the Port Authority is in the public sector, the Third Circuit explained. So its public employees enjoy some First Amendment protections – unlike their private-sector counterparts.

Moreover, if the Port Authority employees plausibly alleged that their speech was protected here, the court explained, then the Port Authority – because of its status as a public employer – would have “the burden of proving [that its policy was] constitutional.”

And if it failed to meet this burden, then the employees would be deemed “likely to prevail on the merits,” which is the first step – and the biggest hurdle — in getting a preliminary injunction.

1. Employees were likely to win First Amendment claims

Generally, public employees have a First Amendment right to speak out as citizens on matters of public concern – as long as the expression is not outweighed by the employer’s interest in an efficient, disruption-free workplace.

As such, courts have adopted a balancing test to weigh employees’ interest in speaking against a public employer’s interest in quelling that speech to maintain an efficient workplace.  

Here, the Third Circuit noted that the Port Authority did not hire the employees to express their views on political or social issues, so that meant their speech was made “as citizens” and was not “pursuant to their official duties.”

Next, the court noted that the Port Authority’s mask policy restricted “speech on matters of public concern,” as BLM masks comment on matters of “political [or] social … concern to the community” that are of “legitimate news interest.”

Because the court found that the Port Authority imposed restrictions “to prevent commentary on political and social issues,” the burden shifted to the Port Authority. Simply put, it had to show that its own interest – enforcing the policy to maintain an efficient workplace – outweighed the employees’ interest in their First Amendment rights.

Complicating matters further, the court had to assess two different alleged violations involving:

1. Employees’ past speech, focusing on the discipline imposed on employees after they wore BLM masks to work, and
2. Employees’ future speech, focusing on the uniform policy restrictions that potentially “chill” future speech.

To decide the “past speech” issue — whether the discipline for the BLM masks violated the workers’ speech rights — the Third Circuit looked to Pickering v. Board of Educ. for guidance. In Pickering, the U.S. Supreme Court instructed lower courts to conduct a “fact-intensive inquiry” that “involves a sliding scale” where the “amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech to the public.”

Here, the Third Circuit said the employees’ BLM masks contained “messages relating to matters of public concern on which they had a strong interest in commenting.” By contrast, the court held, that the Port Authority demonstrated “only minimal risk” that the workers’ BLM masks “would cause a workplace disruption.” Specifically, the court said that the record showed only “three race-related incidents” at the Port Authority in the past 15 years – and none of them were related to BLM masks. Moreover, the court gave weight to the fact that “the Port Authority itself supported the Black Lives Matter movement.”

In the court’s view, the union and the employees were likely to prevail on the merits regarding the “past speech” allegation that disciplining employees for wearing BLM masks violated the First Amendment.

Next, the court turned to the “future speech” allegation – i.e., that the policy limiting employees’ mask choices to a narrow range violated the First Amendment by chilling their speech.

In U.S. v. National Treasury Employees Union, the U.S. Supreme Court explained that the government’s burden to justify its restrictive action increases “when a ban chills potential speech before it happens.”

Here, to justify its ban on employees’ future speech, the Port Authority had to show that it: 1) identified “real, not merely conjectural” harms, and 2) that the policy, as applied, “addresses these harms in a ‘direct and material way.’”

The Third Circuit acknowledged that a Port Authority employee had “complained about a ‘Black Lives Matter’ mask” and that it was concerned about “protests and riots following Pittsburgh’s Black Lives Matter demonstrations.

But even so, the evidence also showed that “a wide range of political and social-issue speech” has not been disruptive, the court explained, as employees had worn political buttons for many years without disrupting Port Authority operations.

In short, the Port Authority failed to show its policy was narrowly tailored to address actual harm and alleviated that harm in a “direct and material way,” the court held. Thus, the Port Authority did not meet its burden of showing that its policy was constitutional.

That meant the court had to find the union and the employees were likely to prevail on the merits of the claim – the first step in obtaining the preliminary injunction they sought.

2. Employees showed ‘irreparable harm’

Next, the court had to consider whether the employees would suffer an irreparable injury without the injunction. It’s well established that loss of First Amendment protections, “even for minimal periods of time, unquestionably constitutes irreparable injury,” the court noted.

Here, the Port Authority’s face mask rules “prevented employees from expressing their views on a range of issues, from race relations to mask mandates,” the Third Circuit pointed out.

As such, the second factor falls to the union and the employees’ favor, the court determined.

 3. BLM masks were not likely to harm employer

Balancing the relative harm and benefit to both the Port Authority and the employees, the court determined the employees’ BLM masks were not likely to “cause the feared disruption,” and the Port Authority “suffers no legitimate harm from not enforcing an unconstitutional policy.” As such, this factor also falls to the union and the employees’ favor.

4. Injunction favors public interest

As to the final factor, the court stressed that there is “a strong public interest in upholding the requirements of the First Amendment.”

Moreover, if a party demonstrates “both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will also favor” that party.

Here, the union and the employees showed they were likely to win their claim and also showed they’d suffer irreparable injury without the injunction.

That, coupled with the public’s “strong interest in upholding the First Amendment,” showed that the final factor favors granting the injunction, the court held.

As such, the Third Circuit affirmed the district court’s ruling that blocked the policy banning BLM masks.

Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County, No. 21-1256, 2022 WL 2336480 (3d Cir. 6/29/22).