Ban on Town Employees’ Displaying Thin Blue Line American Flag Imagery on Town Property Ban on Display of Thin Blue Line American Flag Imagery on Town Property Violates First Amendment
From Tuesday’s decision in Fraternal Order of Police v. Township of Springfield, decided by Judge Paul Matey, joined by Judge Anthony Scirica, concluding that the policy was unconstitutional:
The “Thin Blue Line American Flag” (“the Flag”) is “a black and white American flag.” “All of the horizontal stripes are black and white with the exception of one horizontal stripe that is blue.” For Plaintiffs it “represents a show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers.” In March 2020, the PBA incorporated the Flag into its logo, which it uses at fundraisers, some of which occur on Township property. Individual Plaintiffs 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.
In 2021, Township Commissioners met with the PBA and asked them to remove the Flag from their logo. The PBA declined, and 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.” The Resolution contains 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.
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.
The First Amendment protects the free speech of government employees when they speak “‘as citizens’ rather than ‘pursuant to their official duties,'” as long as their speech regards “‘matters of public concern’ rather than mere ‘personal interest.'” “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
But an employee’s right to speak on matters of public concern is not unlimited. We must “balance … the interests of the [emplo
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