Appeals Court Says Town Can’t Forbid Cops From Flying The ‘Thin Blue Line’ Flag

Free Speech

from the free-speech-even-for-those-making-the-worst-of-it dept

While we all know the “Thin Blue Line” flag is just a bastardization meant to signify cops are above the law, there’s no constitutional way we can forbid cops from displaying their deliberate antagonism against their obligations to the people they serve: things like transparency, accountability, and the service and protection so many law enforcement agencies promise in their agency slogans.

A little more than a year ago, Springfield, Pennsylvania passed a statute forbidding the posting of the “thin blue line” flag by public employees of the city, including its police department. This got the city sued by two police unions: the Fraternal Order of Police (FOP) and the Springfield Police Benevolent Association (PBA).

According to the cop unions, the flag many non-cops view as signifier of law enforcement’s “us vs. them” attitude was actually a heroic bit of American flag vandalism that expressed “preservation of the rule of law” and the “sacrifice of fallen officers.”

Whatever your take on the flag, the law is wrong. You can’t block cops from flying this flag without violating the Constitution. Last December, a Pennsylvania federal court made that clear, even while acknowledging the brandishing of this particular flag was often a devisive act in and of itself.

While Plaintiffs revere the Thin Blue Line American Flag, many members of the public, including residents of Springfield Township, view it as a symbol of police brutality and racial animosity.

Given that, it might make sense for a local government to attempt to head off increased animosity by banning displays of this flag. But the city erred by targeting only this form of political speech, which opened it up to the kind of First Amendment scrutiny that ensured the statute would be found unlawful.

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 American Flag, not from displaying flags or political speech generally.

If the town was serious about preventing government employees from generating animosity, it would have banned other forms of expression, like other “Blue Lives Matter” paraphernalia or, indeed, public expressions by officers that Black lives don’t matter.

This decision was appealed. But there’s nothing in it for the city, which is still on the wrong side of the Constitution. (h/t Volokh Conspiracy)

The Third Circuit rejects the city’s argument that the speech being regulated isn’t of “public concern.” But, of course it is, since it deals directly with police officers and their relationship with the communities they serve. Sure, the city might have wanted to patch up this damaged relationship, but limiting what cops could say wasn’t the way to do it.

The first fatal flaw is that the town can’t show it has suffered the sort of public disruption needed to justify this sort of incursion on public employees’ constitutional rights. From the decision [PDF]:

The Township has not met its burden. It concedes that it “cannot identify any specific incidents of disruptions” caused by Plaintiffs’ use of the Flag. Instead, it points to a 2021 study on policing, which found that African American 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. Thus, it cannot support an inference “that disruption is likely to occur because of the speech.” The Township also points 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. And a handful of gripes and grumbles does not resemble “serious disruption caused by protests and riots” impacting public services.

On top of that, in its effort to sidestep constitutional challenges based on content, the township went too far in the other direction, claiming that any posting of this flag by any city employee would cause further harm to community relationships. The Third Circuit shuts down this argument with a single sentence:

[T]he Township offers no explanation for how restricting the expression of all employees will increase public trust in the Police Department.

Springfield, Pennsylvania has now been told twice. There’s a dissent attached, but it’s just as speculative about harm to public safety as the town’s defense of its statute. While it’s undeniable many people view Thin Blue Line flags as implicit admissions cops feel they are above the law (or are obligated to serve themselves first), plenty of others see it as nothing more than cops congratulating themselves for being cops, which is its own problem, but one that can’t be fixed by tossing the Constitution into the nearest wastebasket.

Filed Under: 1st amendment, 3rd circuit, fraternal order of police, free speech, pennsylvania, police union, springfield pba, thin blue line