Transit Agency's Ban of 'Black Lives Matter' Masks Likely Unconstitutional

​A trial court properly issued a preliminary injunction prohibiting a municipal bus and light-rail operator from enforcing its ban on the wearing of "Black Lives Matter" masks, a federal appeals court ruled. The employees who challenged the policy were likely to prevail in their lawsuit alleging that the ban violated the First Amendment to the U.S. Constitution. Therefore, the employees were entitled to the order barring enforcement of the policy pending the outcome of the lawsuit, the appeals court said.  

Beginning in April 2020, the Pittsburgh-area transit agency required its uniformed employees to wear face masks at work. Some employees wore masks bearing political or social-protest messages. Concerned that such masks would disrupt its workplace, the agency prohibited them in July 2020. When several employees wore masks expressing support for the Black Lives Matter movement, the agency disciplined them under this policy.

In September 2020, the agency imposed additional restrictions, confining employees to a narrow range of masks. Together with their union, the employees sued, alleging that the agency had violated their free-speech rights under the First Amendment. The trial court entered a preliminary injunction, rescinding discipline imposed under the policy and preventing the agency from enforcing its policy against Black Lives Matter masks. The agency appealed.

The appellate court first noted that although the government may limit the speech of its employees more than it may limit the speech of the public, those limits must still comport with the protections of the First Amendment. The agency bears the burden of showing that its policy is constitutional, the court explained.

Standards for Granting Preliminary Injunction

To determine whether a preliminary injunction should issue, a court must consider:

• Whether the party seeking the injunction has a reasonable probability of success on the merits.
• Whether irreparable harm would result if the relief sought is not granted.
• Whether the relief would result in greater harm to the other party.
• Whether the relief is in the public interest.

To determine if speech by public employees is protected, the courts have adopted a balancing test, weighing an employee's interest in speaking against a government employer's interest in stopping that speech.

Two threshold requirements must be met for employee speech to qualify for interest balancing, the court said. First, employees must speak as citizens rather than pursuant to their official duties. Second, employees must speak on matters of public concern rather than mere personal interest.

The conduct of the employees satisfied both prerequisites, the court found. First, the agency did not hire the employees to express their views on political and social issues, so their speech on these issues was not pursuant to their official duties.

Second, the agency's mask rules restricted speech on matters of public concern. In fact, the agency imposed its restrictions to prevent commentary on political and social issues.

To establish the constitutionality of its policies, therefore, the agency was required to show that its interests outweighed those of its employees, the court said. The agency failed to do this, the court concluded.

Although the agency claimed that allowing the wearing of Black Lives Matter masks would disrupt the workplace, employees have long worn political buttons without disrupting the agency's operations, the court said.

Enforcing the ban would cause irreparable injury to the employees, the court added. The agency's mask rules prevent employees from expressing their views on a range of issues. The First Amendment protects that speech, so curtailing it would inflict an irreparable injury, the court said.

The court further concluded that granting the relief would benefit the employees more than it would hurt the agency and that preventing enforcement of the rule would be in the public interest.

In short, the court said, applying the established First Amendment balancing test, the agency had not shown that the face masks posed a great enough risk of disrupting its operations to justify the infringement on free speech.

Therefore, the court said, the lower court acted properly in issuing the preliminary injunction prohibiting the agency from enforcing its mask rule pending the outcome of the trial.

Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County, 3rd Cir., No. 21-1256 (June 29, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.