Third Circuit Court Highlights Free Speech Protections for Public Employees in Context of Discipline for Violation of COVID-19 Face Covering Policy
On June 29, 2022, the Third Circuit Court of Appeals (“Court”) issued a decision providing guidance on how constitutional free speech protections interact with workplace rules, which regulate employee speech on social movements. (Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County (3d Cir. 2022), _F.4th _, 2022 WL 2336480.) The Court agreed that a public employer should be enjoined from enforcing a policy that banned employees from wearing face masks bearing social protest messages. The decision demonstrates that courts are willing to carefully scrutinize public employers’ prior workplace conditions and history of disruptions when assessing an employer’s justification for restricting workplace speech. Given the overlap in constitutional standards for public employers in California, the case is highly instructive guidance on an evergreen constitutional issue.
The Port Authority of Allegheny County (“Port Authority”) is a municipal bus and light-rail operator. Due to the COVID-19 global pandemic, the Port Authority required uniformed personnel to wear face masks at work. The Port Authority decided to (1) implement a policy that banned employees from wearing face makes that displayed social protest messages, and (2) discipline employees for violating said policy by wearing masks that expressed support for various social movements, such as “Black Lives Matter”. Disciplined employees filed a lawsuit alleging that the Port Authority violated their First Amendment rights. The employees sought a preliminary injunction to (a) rescind the Port Authority’s discipline against employees who wore Black Lives Matter face masks, and (b) prevent the Port Authority from enforcing its policy. The district court granted the plaintiffs’ motion for a preliminary injunction, based in part on a finding that they were likely to succeed on the merits of their constitutional claim. The Port Authority appealed the ruling to the Third Circuit Court of Appeals.
Third Circuit Court’s Decision
As an initial matter, it is noteworthy to highlight the procedural posture in which this case arose. As the Court considered whether preliminary injunctive relief was warranted, the case does not involve a final decision regarding whether the Port Authority violated public employees’ First Amendment rights with respect to enforcement of its face mask policy. Instead, the Court considered whether the four elements for preliminary injunctive relief had been met, including whether the Port Authority had demonstrated a reasonable probability of success on the merits, i.e. that its policy was constitutional.
The Court began by noting the black letter constitutional standard, that “speech by government employees receives less protection than speech by members of the public.” (ATU v. Port Authority, supra, 2022 WL 2336480 at *3.) The Court cited the multi-factor Pickering test for evaluating whether government employee speech qualifies for constitutional protection, which would render a government employer liable for taking action to chill or curb. (See Pickering v. Board of Education (1968) 391 U.S. 563.) Specifically, two threshold requirements must be met: (1) employees must speak as “citizens” rather than pursuant to their official duties; and (2) employee speech involves matters of public concern. The Court found that the public employees met each of these initial factors, as commenting on social issues was not part of their job duties and employees’ masks related to matters of political or social concern to the community. The employees and Union’s injunction only addressed “Black Lives Matter” insignia, yet the Court noted in dicta that “Thin Blue Line” and anti-mask mandate messages were also matters of public concern.
The Court then proceeded to apply a balancing test of interests. Under constitutional case law precedent, the balancing test differs based on whether the government’s conduct constitutes a prior restraint on speech or an after-the-fact restraint. The Court observed that the Port Authority’s actions involved both types, as the policy banned future conduct (social protest messages on face masks) and imposed discipline on employees for violating policy after the fact, such that both balancing tests needed to be considered.
To evaluate the constitutionality of the Port Authority’s discipline action, the Court applied the after-the-fact restraints on speech balancing test: (1) the interest of the employee, as a citizen, in commenting upon matters of public concern, against (2) the interest of the State in promoting the efficiency of the public services it performs. The Port Authority’s proffered justification for its disciplinary decisions was disruption to services, particularly from the “disruptive potential of racial discord.” The Court determined that the Port Authority failed to demonstrate any adequate disruption or reasonable risk of disruption to its operations in relation to employees’ use of Black Lives Matter masks. In evaluating the latter claim, the Court cited the Port Authority’s prior conduct and history:
“The record shows a lone employee complaint, three race-related incidents among Port Authority employees within the past fifteen years, wholly unrelated to and predating the mask rules, and electronic messages among employees expressing differing opinions about the Black Lives Matter movement. Moreover, Port Authority itself supported the Black Lives Matter movement after the July policy was in place, previously supported African-American Heritage celebrations, and consistently allowed employees to wear political buttons and hats in violation of its uniform policy, all without precipitating the disruption it contends the Employees' masks are likely to cause.” (ATU v. Port Authority, supra, 2022 WL 2336480 at *4.)
For prior restraints on speech, the Court had to apply a far more stringent standard. The Port Authority was required to show that “the necessary impact on the actual operation” of the government agency outweighs public employees’ interests in commenting on matters of public concern. (Ibid.) To make this showing, the Port Authority had to demonstrate that it identified “real, not merely conjectural” harms, and that its actions (i.e. face mask policy banning social messages) as applied addresses those harms in a “direct and material way.” (Id.) The Court concluded that the Port Authority’s prior-restraint ban on social protest messages for face masks did not satisfy this heightened test, as it was both over and under-inclusive. The policy was deemed overboard because it swept in a wide array of political and social issue speech that “Port Authority employees have long engaged without causing disruption.” The ban was also under-inclusive because the Port Authority had no policy prohibiting political speech in other ways such as written communication, and the Port Authority’s pre-existing ban on wearing political-type buttons on uniforms was largely unenforced. Given this, the Port Authority’s prior restraint was deemed not narrowly tailored.
The Court found that the other factors for preliminary injunctive relief had also been met, i.e. whether irreparable harm would result in the absence of a court order, potential harm to the Port Authority, and the public interest. Consequently, the Court affirmed the district court’s decision.
This case should serve as a cautionary tale for public employers in California, concerning prior restraints on social protest speech. At present, individuals in California and throughout the country continue to engage in protests and social movements on a variety of subjects, across the political spectrum. These enduring and occasionally conflicting statements can pose complex challenges for public employers, who seek to avoid confrontations between co-workers and creating an inflammatory workplace. The Third Circuit’s Port Authority decision illustrates the dangers for public employers who fail to take thoughtful, nuanced action in seeking to regulate the free speech of their workers on various social issues.
Notably, the Court took into account the employer’s own conduct (e.g., failing to enforce a similar ban involving political messages on buttons; and demonstrating support for social issues such as Black Lives Matter) to conclude that said history undermined the employer’s position regarding the anticipated disruption that it sought to avoid. The Court suggested that, given the difficulties in a prior restraint on protected speech, employers may need to rely on after-the-fact restraints as a more feasible manner of controlling speech.
While this out-of-state case provides strong persuasive guidance for California public employers, they should note certain differences between the Third Circuit and the Ninth Circuit. The Third Circuit in this case highlighted the importance of articulating the grounds for measures that restrict employee speech. The Port Authority cited the avoidance of disruption caused by employee-to-employee tension via racial discord. However, the Ninth Circuit recognizes various grounds for assessing disruption to public services including whether the statement: (i) impairs discipline by superiors, (ii) impairs harmony among co-workers, (iii) has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, and/or (iv) impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. (See Moser v. Las Vegas Metropolitan Police Department (9th Cir. 2021) 984 F.3d 900, 908.)
Lastly, as noted above, the procedural posture of this case impacted the final outcome, in which a government employer was enjoined on First Amendment free speech grounds. In the context of the preliminary injunction issue, the Court only determined that the Port Authority was unlikely to prevail on the merits. The unique procedural posture of this case worked in favor of the employees since, in the usual context (that is, a direct challenge of the conduct outside the preliminary injunction standard), the employer would have been granted some deferential treatment in its prediction of workplace disruption. (Moser, supra, at p. 909.)
Employers with questions about free speech restraints and in need of assistance should contact the authors or their usual counsel at Atkinson, Andelson, Loya, Ruud & Romo for guidance.