Township Violates Free Speech Rights By Banning Thin Blue Line Flag

Written on 01/05/2024

The Springfield Township Police Benevolent Association represents police officers working for Springfield, Pennsylvania. The PBA incorporated the “Thin Blue Line American Flag” into its logo. The flag also appears in areas of the police station, to which the public has limited access. For example, the flag appears on a bulletin board displaying patches from other police departments depicting the Thin Blue Line Flag, hangs on walls, and is part of the challenge coins displayed on officers’ desks.

In 2022, several Township residents contacted both the PBA and the Town­ship’s Board of Commissioners with concerns about the PBA’s logo. The Township offered to cover the cost of the PBA changing its logo, informing the PBA that the Township had arranged for a private donor to pay up to $10,000 for that purpose. But the PBA again voted not to change the logo.

Township Solicitor James Garrity, and Township Manager Michael Taylor, sent a cease-and-desist letter to the PBA about its use of the Flag. Garrity and Taylor explained that many Township residents had expressed deep discontent and distrust of the PBA and even the Township’s own police department, due to the PBA’s use of the Flag. They emphasized that the Flag “has been at the center of the controversy between minority communities and law enforcement officials across the country,” citing the use of the flag by white nationalists. Thus, they reasoned, “regardless of the history or original intent of the PBA in displaying the Flag, to many members of the Springfield Township community, the utilization of the Flag unnecessarily exacerbates the ongoing conflict between police officers and the communities they serve.” The letter ended by directing the PBA and its members to discontinue all depictions of the Flag or have the PBA remove the words “Springfield Township” from its name.

When the PBA refused to change its logo or its name, the Board of Commis­sioners drafted Resolution 1592, which purported to ban depictions of the Thin Blue Line Flag the following ways: (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 Flag symbol on any personal property of a Township employee, agent, or consultant, which is brought into the Township building, 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 Township building; and (3) the display, by installation or affixation of a publicly visible depiction of the symbol, Township vehicles), by any person.”

The PBA and the State FOP sued the Township, alleging that Resolution 1592 violated their free speech rights. A federal court agreed and issued an injunction banning the enforcement of Resolution 1592.

The Court ruled that “it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Viewpoint discrimination is an egregious form of content discrimination, and discrimina­tion against speech because of its message is presumed to be unconstitutional.

“The Township has not, and indeed, cannot, contest that the Resolution is a viewpoint regulation – it prohibits em­ployees, agents, and consultants from displaying only the Thin Blue Line Flag, not from displaying flags or political speech generally. Instead, the Township argues that the Resolution is a permissi­ble restriction on employee speech even though it targets a specific viewpoint. Given the Supreme Court’s consistent assertion that viewpoint discrimination is inherently suspect, the Court questions whether the government can ever permis­sibly regulate employee speech based on viewpoint.

“The Court has no trouble finding that Resolution 1592 regulates speech on a matter of public concern. The Resolution restricts the display of the Thin Blue Line American Flag, a symbol that reflects both a respect for fallen members of law enforcement and protests the Black Lives Matter movement.

“The Township bears the burden of showing that the necessary impact on the actual operation of the government outweighs the constitutional interest restricted by the Resolution. To satisfy this requirement, the Township must show: (1) it has identified a real, not conjectural, harm; and (2) the ban as applied addresses that harms in a direct and material way. The Township has not satisfied either prong.

“The Township seems to concede that it has no evidence of workplace disruption caused by the display of the Flag. Neither has it shown that the Flag has caused a ‘real’ disruption to relations between the police and Township residents. The Township has pointed to complaints that a handful of residents made to it about the Flag. But even accepting those comments as evidence that the PBA’s use of the Flag has caused some strain between residents and the police, a handful of complaints does not transform the Township’s con­cerns of wide-spread discord from the conjectural to the real. Particularly not when Taylor testified that he was unaware of any disruptions in Township services because of the Flag.

“Second, even if the Township could show that it has a real concern that officers’ decision to display the Flag will erode public confidence and trust in the police department and thus, result in an increase of crime in the future, the Resolution does not address that harm in a direct and material way. Most obviously, the Resolution is not limited to the Township Police Department. Instead, it broadly applies to all Township employees, agents, and consultants. This breadth is especially suspect because the ban affects ‘core’ political speech, an area where fit must be particularly close. Indeed, given that the Resolution prohibits political speech based on a particular viewpoint, its overbreadth is particularly egregious. The general prohibition at the beginning of the Resolution has no time or location limitations, and even if the Court focuses on the three subsections, Section One prohibits the Flag’s display while an employee is off duty but representing the Township in any way.

“In addition to being overbroad, the Resolution is underinclusive in that Township employees, including police officers, are allowed to engage in other forms of discourse that could exacerbate racial tensions and undermine public confidence in the police department. For example, 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.’ Both forms of speech would seem to trigger the same concerns that the Township is trying to address through the Resolution, perhaps in an even more direct way.

“In sum, even viewing the admissible evidence in the light most favorable to the Township, the Resolution is an unconsti­tutional restriction on employee speech.”

Pennsylvania State Lodge v. Township of Springfield, 2023 WL 7547494 (E.D. Penn. 2023).