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Law360 (January 20, 2021, 8:04 PM EST ) A Pennsylvania federal judge blocked a policy from the Port Authority of Allegheny County on Tuesday that prohibited employees from wearing "Black Lives Matter" face masks at work, finding that the policy runs "afoul of the First Amendment."
In a 45-page opinion, U.S. District Judge J. Nicholas Ranjan granted a preliminary injunction against enforcing the mask policy, finding that it unnecessarily restrains free speech of the employees.
"The Port Authority has failed to present sufficient evidence that allowing its employees to wear 'Black Lives Matter' or equivalent masks is 'likely to disrupt the efficient operation of the workplace,'" the opinion said.
Amalgamated Transit Union Local 85, a union representing employees at Port Authority, filed suit against the transit agency in September 2020. In its suit, the union argued that the policy banning workers from wearing Black Lives Matter face masks violates their freedom of speech.
Management for the transit agency became concerned about the masks after receiving a complaint from an employee who asked management how they would feel if he wore a "White Lives Matter" mask in response.
The transit agency then adjusted its policy to prohibit Black Lives Matter masks by expanding its ban on "political or social-protest" uniform adornments to include face masks.
Despite publicly endorsing the Black Lives Matter movement, the transit agency cited concerns that allowing employees to wear masks in support of the movement could potentially disrupt the workplace from other "competing" masks.
The Port Authority insisted it has a heavy interest in preventing any potential employee conflicts and customer-relations problems and that the speech it seeks to contain could instigate such conflicts.
But determining what violates the policy grew difficult, so the Port Authority further narrowed its approved mask guidelines to include only the following — a solid blue or black mask, an N-95 or KN-95 mask, a mask with the Port Authority logo, or an ATU 85 union mask.
In their suit, the employees argue that the policy contradicts previous practices of allowing buttons and signs on buses that supported similar causes.
The Port Authority — which operates buses, light rail and incline services in and around Pittsburgh — had previously spread messages showing support for LGBTQ Pride, Black History Month, women's rights, the victims of the October 2018 Tree of Life synagogue shooting, and Pittsburgh police after three officers were killed by a white supremacist in 2009, according to the suit.
Furthermore, seven instances of disciplinary action were imposed over uniform violations in the past six years, none of which involved violations of the policy around political or social-protest adornments, according to the opinion.
On Tuesday, Judge Ranjan ruled in favor of the transit employees and found that "speech on the clock" is not exempt from First Amendment protection.
In addressing the transit agency's concerns, the judge pointed out that not a single employee donned a more controversial mask in response to those who wore Black Lives Matter masks.
The judge continued that the government may only restrict speech in the workplace if it's likely to be disruptive and that the government must supply evidence to support such disruptive forecasts if challenged.
"A restriction on First Amendment rights in a government workplace cannot be based on speculation over a risk of disruption caused by speech or messages that others may potentially convey in the future," the opinion said. "That is simply too attenuated of a risk of disruption."
Joseph J. Pass, an attorney at Jubelirer Pass & Intrieri PC representing the union, told Law360 that the suit is "clearly a First Amendment issue."
Counsel for the Port Authority did not immediately respond to Law360's request for comment Wednesday.
ATU Local 85 and the individual employees are represented by Joseph J. Pass and Patrick K. Lemon of Jubelirer Pass & Intrieri PC.
The Port Authority is represented by Brian P. Gabriel of Campbell Durrant PC and Gregory J. Krock of McGuireWoods LLP.
The case is Amalgamated Transit Union Local 85 et al. v. Port Authority of Allegheny County, case number 2:20-cv-01471, in the U.S. District Court for the Western District of Pennsylvania.
--Additional reporting by Matthew Santoni. Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
