Amalgamated Transit Union Local 85 v. Port Auth. of Allegheny Cnty.

Decision Date19 January 2021
Docket Number2:20-cv-1471-NR
Citation513 F.Supp.3d 593
Parties AMALGAMATED TRANSIT UNION LOCAL 85, et al., Plaintiffs, v. PORT AUTHORITY OF ALLEGHENY COUNTY, Defendant.
CourtU.S. District Court — Western District of Pennsylvania

Joseph J. Pass, Patrick K. Lemon, Jubelirer, Pass & Intrieri, Pittsburgh, PA, for Plaintiffs.

Brian P. Gabriel, Campbell Durrant, P.C., Gregory J. Krock, McGuireWoods, LLP, Pittsburgh, PA, for Defendant.

OPINION

J. Nicholas Ranjan, United States District Judge

The Allegheny County Port Authority has long prohibited its employees from wearing uniform adornments, such as buttons and stickers, that reflect "political or social-protest" messages. It has done so based on its belief that such messages are likely to lead to disruption in the workplace. This case presents a First Amendment challenge to a recent extension and modification of that policy to apply to facemasks.

In the early days of the COVID-19 pandemic, the Port Authority, like many employers, directed its employees to wear facemasks while performing their duties. Several employees, including Plaintiffs here, sought to comply with that policy, wearing masks that displayed the slogan "Black Lives Matter." They did so to express their support for the "Black Lives Matter" movement, especially after the highly publicized killing of George Floyd by a Minneapolis police officer. For a period of time, many Port Authority employees wore "Black Lives Matter" and other similar masks without incident.

Eventually, however, the "Black Lives Matter" masks came to the attention of the Port Authority's management, through a complaint from a single employee, who asked how management would feel if he wore a "White Lives Matter" mask in response.

Although the Port Authority had itself publicly endorsed the "Black Lives Matter" movement, it feared that allowing employees to wear "Black Lives Matter" masks would cause disruption (likely from other "competing" masks), much like the "political and social-protest" messages it had banned from other uniform adornments. So the Port Authority took action to prohibit its employees from wearing such masks—first by extending its preexisting policy against uniform adornments containing political or social-protest messages to apply to facemasks; and then, when that policy proved difficult to enforce, by requiring employees to wear one of a few specified facemasks and banning all others. Both of these policies were motivated by a desire to prevent workplace disruption caused by what the Port Authority viewed as controversial speech or counter-speech.

Following the policy change, several employees, including Plaintiffs here, were disciplined or threatened with discipline for wearing "Black Lives Matter" masks. So they, along with the labor union that represents them, filed this lawsuit.

Presently, Plaintiffs seek a preliminary injunction against enforcement of the Port Authority's mask policy. They argue that the policy violates the First Amendment because the Port Authority does not have a substantial interest in prohibiting its employees from engaging in innocuous expressions of personal political or social views, even at work. The Port Authority counters that, in the context of managing its workplace, it has a strong interest in heading off potential employee conflicts and customer-relations issues, and it suggests that the political and social-protest speech it seeks to ban is likely to create just those sorts of problems. The question for the Court is whether the First Amendment tolerates such restrictions.

At the heart of the First Amendment is the time-tested belief that, in almost every context, society benefits from allowing more speech, even (and perhaps especially) when that speech is unpopular or controversial. This belief recognizes that expressive freedom not only benefits the speaker, but also the listener, who might otherwise not be exposed to important new ideas or opportunities to challenge their own orthodoxies. That is especially true where, as here, the speech in question relates to matters of significant public concern. Of course, in the public-employment context, the government necessarily has much wider discretion to regulate the speech of its employees. If the business of government is to get done, some "play in the joints"1 is necessary to allow for restraint of speech that is likely to disrupt the workplace, interfere with customer relations, or undermine employee productivity.

But while the government is afforded unique flexibility in the employment context, that doesn't mean public employees forfeit their right to speak freely upon entering the office (or bus). The government can restrict or punish workplace speech only if it is, in fact, likely to be disruptive of the workplace. And when such restrictions are challenged in a lawsuit like this one, the government must support its predictions of disruption with specific evidence; perhaps not evidence of actual disruption, but at least evidence that disruption can reasonably be expected to occur. Importantly, a speculative fear that otherwise innocuous speech could induce others to engage in counter-speech, which may, in turn, become disruptive, is not enough to justify censorship by the government, even in the employment context.

In contrast to instances of after-the-fact discipline of disruptive employees, policies that impose broad, prior restraints on employee speech are particularly suspect. Yet that type of broad policy is what the Port Authority initially adopted here when it imposed a sweeping ban on facemasks displaying any "political or social-protest" message. In doing so, the Port Authority specifically targeted for restriction speech that is afforded the greatest protection by the First Amendment. Further, it did so based only on a generalized and speculative fear that a "political or social-protest" message, passively displayed on a facemask, might cause other employees, or members of the public, to engage in more disruptive counter-speech. As will be discussed, this policy was arbitrary and overbroad, while the Port Authority's predictions of likely disruption are unsupported by the evidence that has been presented to the Court.

The Port Authority's subsequently adopted, facially "neutral" policy, requiring employees to wear one of a few specified facemasks, suffers from the same problems. The only proffered justification for the new policy remains the same—to prevent a perceived risk of disruption caused by employees wearing "political or social-protest" masks—and that justification remains impermissible. The Port Authority may not cure a First Amendment violation by restricting even more speech. Nor can the Port Authority's generalized interest in its uniform policy justify the new policy's broad restrictions. "Mere incantations that a pristine uniform is necessary to provide safe public transportation" are "clearly insufficient" to justify broad restraints on non-disruptive employee speech like political buttons or masks. Scott v. Goodman , 961 F. Supp. 424, 428 (E.D.N.Y. 1997), aff'd sub nom. Scott v. Meyers , 191 F.3d 82 (2d Cir. 1999). That is particularly so here, where the evidence overwhelmingly suggests that the Port Authority's uniform policy is laxly enforced, such that political and social-protest uniform adornments have been tolerated for years without incident.

In sum, the Court sympathizes with the Port Authority's good-faith desire to maintain a safe and productive workplace. But the vast majority of the employee speech it has banned here—including its effective ban on "Black Lives Matter" masks—would not materially undermine that goal. Moreover, any of the truly disruptive behavior that the Port Authority fears can be readily deterred and dealt with on a case-by-case basis, and likely using non-speech-based means. For all these reasons, and based on the specific facts of this case and evidentiary record, the Court finds that Plaintiffs are likely to prevail on their First Amendment claims. The Court will thus grant their motion for preliminary-injunctive relief and enjoin the Port Authority from enforcing its ban on "Black Lives Matter" masks.

PROCEDURAL BACKGROUND

Plaintiff Amalgamated Transit Union Local 85, along with several individual Port Authority employees, filed this lawsuit on September 30, 2020. ECF 1. In its complaint, the Union asserts claims under 42 U.S.C. § 1983 for violations of its members’ free speech and equal protection rights under the First and Fourteenth Amendments of the United States Constitution, as well as their analogous rights under Article I, Sections 7 and 20 of the Pennsylvania Constitution. Along with its complaint, the Union moved for a preliminary injunction, asking the Court to enjoin the Port Authority from enforcing its operative facemask policy and to allow its employees to wear facemasks with the message "Black Lives Matter." ECF 3.

The Port Authority initially responded to the Union's complaint by moving to dismiss for lack of subject-matter jurisdiction, arguing that the Union's claims were based on its older facemask policy, which had recently been superseded by a new, modified policy. ECF 10. On November 2, 2020, the Court granted the motion to dismiss, but allowed the Union to amend its complaint to state a claim directed at the now-operative mask policy. ECF 16. The Union did so on November 3, 2020, ECF 17, and the Port Authority again responded by filing a motion to dismiss, this time for failure to state a claim under Fed. R. Civ. P. 12(b)(6), ECF 18.2

The Court held a two-day evidentiary hearing on the Union's preliminary-injunction motion on November 10 and 17, 2020. ECF 27; ECF 30. During the hearing, the Court heard evidence and testimony from 16 witnesses, followed by oral argument from counsel on the pending motions. ECF 30-1; ECF 34; ECF 36. Following the hearing, the Court issued an order directing the parties to address, in their post-hearing briefing, whether the...

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