Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—3d Cir.: Township violated First Amendment by forbidding display of ‘thin blue line’ flag, (Jan 29, 2025)

By Jason Albright, J.D.

“A tempest in a teapot brewed,” according to the court, when the township passed the policy.

Three police officers were entitled to a permanent injunction against a township’s enforcement of a resolution that forbade its employees from displaying the “thin blue line” flag, a variation of the American flag signaling support for law enforcement officers, the Third Circuit found in a nonprecedential opinion by Judge Paul Matey, who was appointed by President Trump in 2018 and ultimately confirmed in 2019. The township, which conceded that it “cannot identify any specific incidents of disruptions” caused by the plaintiffs’ use of the flag, could not show “that disruption is likely to occur because of the speech,” and the resolution—which applied to any township employee and did not, for instance, prohibit township police officers from voicing opposition to the Black Lives Matter movement while in uniform—was not “narrowly tailored to the ‘real, not merely conjectural’ harm the Township identified.” Judge Shwartz dissented (Fraternal Order of Police of Pennsylvania Lodge v. Township of Springfield, No. 23-3165 (3d Cir. Jan. 28, 2025, nonprecedential)).

Police officers. The plaintiffs in the case are three police officers employed by the Township of Springfield, Pennsylvania. All three are members of the Springfield Township Police Benevolent Association (PBA), and one is also a member of the FOP Pennsylvania Lodge.

The “thin blue line” flag. The “Thin Blue Line American Flag” is “a black and white American flag.” All its horizontal stripes are black and white, with the exception of one horizontal stripe that is blue. For the officers, it “represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers,” and in March 2020, the PBA incorporated the flag into its logo, which it uses at fundraisers, some of which occur on Township property. The three officers 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.

Remove the flag. In 2021, Township commissioners met with the PBA and asked them to remove the flag from their logo. The PBA declined.

Resolution. 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.”

Three specific prohibitions. The resolution elaborates 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”; and (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.”

Additional memorandum. In addition, the Township Manager issued a Memorandum on January 16, 2023, making the Resolution “effective immediately.”

Lawsuit and permanent injunction. The three officers then sued the Township in federal district court under 42 U.S.C. § 1983 alleging that the Township’s threatened enforcement of the Resolution violated the First Amendment. The district court granted their motion for summary judgment and entered a permanent injunction against further enforcement of the Resolution.

Matter of public concern. The appeals court first observed that the Township conceded that the officers are speaking as private citizens but argued that their speech is not a matter of public concern. However, the Third Circuit noted that it previously rejected that argument because speech concerning “‘Black Lives Matter,’ ‘Thin Blue Line,’ and anti-mask-mandate masks” constitute comments on political or social concerns of the community. Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95, 103-04 (3d Cir. 2022).

Real, not merely conjectural harms. Nor did the Township show “real, not merely conjectural” harms that the prohibition, as applied, addresses “in a ‘direct and material way.’” It in fact conceded that it “cannot identify any specific incidents of disruptions” caused by officers’ use of the flag. Instead, it pointed 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,” the appeals court observed. The Township also pointed 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 its display and “a handful of gripes and grumbles does not resemble ‘serious disruption caused by protests and riots’ impacting public services,” said the court.

Not narrowly tailored. Finally, the resolution was not “narrowly tailored to the ‘real, not merely conjectural’ harm the Township identified.” It applied to “any Township employee, agent[,] or consultant,” not just the Police Department, and the Township also conceded that it permits the display of the “Thin Blue Line Flag” lacking elements of the American flag. And finally, 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,” and thus, the Resolution’s “over- and underinclusive policy” failed to address the alleged harm “in a ‘direct and material way.’”

The judgement of the district court was thus affirmed.

Dissent. In her dissent, Judge Schwartz, nominated by President Obama in 2011 and ultimately confirmed in 2013, argued that, viewing the facts and drawing inferences in the Township’s favor, “a reasonable jury could determine that (1) some residents interpret the symbol as hateful; (2) law enforcement’s embrace of a hateful symbol on officers’ clothing in the Township building, or affixed to Township property, erodes residents’ trust in the police; and (3) the erosion of trust undermines public safety by making it less likely for people to report crime and otherwise cooperate with the police.’

The case is No. 23-3165.

Judge: Matey, P.

Attorneys: Jonathan F. Mitchell (Law Offices of Jonathan F. Mitchell) for Fraternal Order of Police Pennsylvania Lodge. Rufus A. Jennings (Cohen Vaughan) for Township of Springfield.

Companies: Fraternal Order of Police Pennsylvania Lodge; Township of Springfield

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