The Fraternal Order of Police Pennsylvania Lodge, the Springfield Township Police Benevolent Association, and individual police officers Christian Wilbur, Robert Baiada, and Chris Calhoun, challenged a policy enacted by Springfield Township that restricted Township employees from displaying a Thin Blue Line flag, arguing that it violated their First Amendment rights.
The PBA incorporated the Thin Blue Line flag into its logo in March 2020 and used it at fundraisers, some of which took place on Township property. The individual plaintiffs wanted to continue displaying the flag on personal and Township property, and the PBA wanted to continue hosting events on Township property displaying its logo and the flag. In 2021, Township Commissioners asked the PBA to remove the flag from their logo, but the PBA declined. In response, the Township passed Resolution No. 1592, which prohibited the public display or use of any image which depicted the Thin Blue Line symbol by any Township employee, agent, or consultant.
The Resolution contained three specific prohibitions. The first prohibited the public display of the symbol on the clothing or skin of any Township employee, agent, or consultant while on duty, during the workday, or while representing the Township in any way, even including the off-duty time of any such individual if still wearing the Township uniform. The second prohibited the public display of the symbol on any personal property of a Township employee, agent, or consultant, which was brought into the Township 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, was placed in a location likely to be seen by a member of the public while visiting the Township building. The third prohibited the display, by installation or affixation of a publicly visible depiction of the symbol, on Township-owned property (including Township vehicles), by any person.
The plaintiffs sued the Township under 42 U.S.C. Section 1983, alleging that the threatened enforcement of the Resolution violated the First Amendment. The District Court granted the plaintiffs’ motion for summary judgment and entered a permanent injunction against further enforcement of the Resolution. The defendants appealed.
The United States Court of Appeals for the Third Circuit affirmed the district court, rejecting the Township’s contention that the flag was not speech regarding a matter of public concern. Because the Resolution and enforcement memorandum constituted “a policy that prohibits or restrains future speech,” the Court considered “all present and future expression that the rule may chill.” The Township bore “the burden of showing that the restricted expression’s necessary impact on the actual operation of the Government outweighs that interest.” This required showing “first, that the Defendants have identified real, not merely conjectural harms; and second, that the ban as applied addresses these harms in a direct and material way. To demonstrate real, not merely conjectural harms, a government must not only identify legitimate interests but also provide evidence that those concerns exist. The government need not show the existence of actual disruption if it establishes that disruption is likely to occur because of the speech.”
The Township conceded that it could not “identify any specific incidents of disruptions” caused by plaintiffs’ use of the flag. Instead, it pointed to a 2021 study on policing, which found that black 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 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 the display of the Flag.
The Resolution was not “narrowly tailored to the ‘real, not merely conjectural’ harm the Township identified.” The Resolution applied to “any Township employee, agent, or consultant,” not just the Police Department. But the Township offered no explanation for how restricting the expression of all employees would increase public trust in the Department. Further, the Township conceded that the Resolution permitted the display of the Thin Blue Line Flag which lacked elements of the American flag. The ban only proscribed the viewpoint the flag conveys, while giving any opposing opinions free rein. 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.’”
FOP Pa. Lodge v. Twp. of Springfield, 2025 U.S. App. LEXIS 1823 (3rd Cir. 2025).