Sophia Serrao
Thu, 07/14/2022
The Third Circuit enjoined a Pittsburgh-area transit authority’s ban on workers wearing face masks with political messages, including “Black Lives Matter” masks.
Beginning in April 2020, the Port Authority of Allegheny County (now Pittsburgh Regional Transit) required its employees to wear face masks at work. Some employees work masks bearing “political or social-protest messages.” The Port Authority banned masks with political and social messaging, in July 2020, claiming such masks disrupted services. After the ban, several employees continued to wear masks with “Black Lives Matter” messaging and were disciplined. In September 2020, the Port Authority imposed additional restrictions on employees’ masks, confining them to a narrow range of blue or black masks and face shields. In September 2020, Amalgamated Transit Union Local 85 and the union members sued the Port Authority, arguing that the prohibition of masks that were not solid black or blue violated their rights to freedom of speech under the First Amendment.
The district court agreed with the workers, entering an injunction preventing enforcement of the policy as to “Black Lives Matter” masks, because although the government may limit its workers’ speech, the Port Authority had not demonstrated that the messaging masks were disruptive and should be prohibited.
Three Judges in the Third Circuit agreed with the lower court. According to the Third Circuit, the masks and employee speech they represented touched on matters of public concern, and the employees were “speaking” as citizens and not expressing official viewpoints of their employer. The Court affirmed that employees have a right to freedom of speech under the First Amendment, and that the mask ban “imposed restrictions to prevent commentary on political and social issues.” The Court found that, although employees argued online about masks with “Black Lives Matter” (or pro-police “thin blue line” messaging) and the policy itself, the Port Authority had not shown any actual disruptions to service. The Court further concluded that the policy was not specifically tailored to prevent potential service disruptions, as it covered a broad range of speech that employees had previously engaged in without disruption, but also singled out masks while ignoring other forms of speech that were just as likely to cause disruption. The Court noted that its ruling was narrow, and that “[a]nother policy, another message, a uniform requirement, or another set of interests may be different,” and confirming that “[i] n each case the specific facts and circumstances will be dispositive.”
MSE has a history of protecting employee speech, and regularly represents workers who have been disciplined or otherwise experienced retaliation after speaking out on matters of public concern. If you believe your first amendment rights are being violated by your employer, please contact us.
