Local 85 v. Port Authority of Allegheny

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 21-1256
AMALGAMATED TRANSIT UNION LOCAL 85; JAMES
HANNA; SASHA CRAIG; MONIKA WHEELER
v.
PORT AUTHORITY OF ALLEGHENY COUNTY,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2-20-cv-01471)
District Judge: Honorable J. Nicholas Ranjan
_______________
Argued: December 7, 2021
Before: SHWARTZ, PORTER, and FISHER,
Circuit Judges.
(Filed: June 29, 2022)
______________
Brian P. Gabriel
Campbell Durrant Beatty Palombo & Miller
535 Smithfield Street
Suite 700
Pittsburgh, PA 15222
Gregory J. Krock [ARGUED]
McGuireWoods
260 Forbes Avenue
Suite 1800
Pittsburgh, PA 15222
Counsel for Appellant Port Authority of Allegheny
County
Patrick K. Lemon
Joseph J. Pass [ARGUED]
Jubelirer Pass & Intrieri
219 Fort Pitt Boulevard
1st Floor
Pittsburgh, PA 15222
Counsel for Appellees Amalgamated Transit Union
Local 85, James Hanna, Sasha Craig, and Monika
Wheeler
2
______________
OPINION OF THE COURT
______________
PORTER, Circuit Judge.
Beginning in April 2020, the Port Authority of
Allegheny County (“Port Authority”) required its uniformed
employees to wear face masks at work. Some employees wore
masks bearing political or social-protest messages. Concerned
that such masks would disrupt its workplace, Port Authority
prohibited them in July 2020. When several employees wore
masks expressing support for Black Lives Matter, Port
Authority disciplined them under this policy. In September
2020, Port Authority imposed additional restrictions, confining
employees to a narrow range of masks. Together with their
union, Amalgamated Transit Union Local 85 (“Local 85”), the
employees sued, alleging that Port Authority had violated their
First Amendment rights.1 The District Court entered a
preliminary injunction rescinding discipline imposed under the
July policy and preventing Port Authority from enforcing its
policy against “Black Lives Matter” masks. Port Authority
appeals.
The government may limit the speech of its employees
more than it may limit the speech of the public, but those limits
must still comport with the protections of the First
Amendment. Port Authority bears the burden of showing that
1
Employees and Local 85 amended their complaint to reflect
the September policy.
3
its policy is constitutional. It has not made that showing. We
will affirm the District Court’s order.
I
As part of its response to the Covid-19 pandemic, Port
Authority, a municipal bus and light-rail operator, required its
uniformed employees to wear face masks.2 Initially, Port
Authority was unable to procure masks for all its employees,
so they were required to provide their own. Some employees
wore masks bearing political or social-protest messages
including “Black Lives Matter” and “Trump 2020,” as well as
masks expressing support for the police and criticizing mask
mandates.
Port Authority has long prohibited its uniformed
employees from wearing buttons “of a political or social
protest nature.” App. 681. Port Authority extended this
prohibition to face masks in July 2020. The policy prohibited
“[b]uttons, stickers, jewelry, and clothing (including masks or
other face coverings) of a political or social protest nature.”
App. 679–84. Port Authority disciplined employees Sasha
Craig, Monika Wheeler, and James Hanna (“Employees”) for
violating this policy.
In September 2020, as Port Authority became able to
procure more masks, it revised its uniform policy again. The
new policy leaves the “political or social protest” restriction in
place and adds a new “Masks and Other Face Coverings”
section detailing which masks may be worn. App. 668. The
2
Port Authority no longer requires employees or riders to
wear masks. See Face Coverings, Port Authority,
https://perma.cc/354P-U9TX (last visited May 26, 2022).
4
revised policy expressly permits masks with the Port Authority
or Local 85 logo. It also permits Port Authority-issued surgical
masks and solid black or blue masks or gaiters, as well as
white, blue, or black N-95 and KN-95 masks and clear face
shields, whether issued by the Port Authority or belonging to
the employee. If an employee brings a face shield, N-95, or
KN-95 mask from home it may “not have any visible logos,
images, texts or other markings” and the “head band . . . must
be solid white, blue or black.” App. 669. The policy provides
that “no other masks or face coverings are permitted to be worn
while on duty,” and prohibits alteration of permissible masks.
App. 669.
Before the District Court, Port Authority’s Chief Legal
Officer testified that the purpose of the new policy was “to
make it easier for employees to comply with” the ban on
political and social-protest masks and avoid any “gray area, a
question is that a political message, is that a social protest
message.” App. 529.
Port Authority enforced its pin-and-button prohibition
laxly. Before the District Court, bus operators testified that
they and others wore buttons supporting “Bernie Sanders,
Hillary, Trump, Obama, Biden” and candidates for local and
union office. App. 483. One bus operator described employees
as “wear[ing] buttons on their sweaters as though they are
military type . . . medals.” App. 485. Wearing these buttons
did not occasion discipline, even though doing so violated Port
Authority’s long-standing uniform policies. Other employees,
including instructors, also wore political buttons without
incident.
Like its employees, Port Authority speaks on political
and social issues. Port Authority endorses Black Lives Matter
5
and decorates buses to celebrate causes it supports. Buses
bearing images of beer cans and buses decorated to support gay
pride caused controversy among employees. A manager
threatened to discipline employees who refused to drive the
gay-pride bus, but it appears that no one was disciplined. Some
employees also reportedly resisted driving the beer-can bus,
though, again, the record reveals no associated disciplinary
action.
Masks commenting on social issues have not
interrupted Port Authority’s operations, though they have
created tension among Port Authority employees. Port
Authority’s general counsel was not aware of any disruption to
service through September 2020, when the revised mask policy
came into effect.
Port Authority is particularly concerned about the
disruptive potential of racial discord. Black Lives Matter
demonstrations in Pittsburgh precipitated rioting and property
damage in 2020. Port Authority has also had some problems
with racial tensions in the past.
II
The District Court had subject-matter jurisdiction under
28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1). We review the District Court’s grant of a
preliminary injunction for abuse of discretion. Tenafly Eruv
Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 156 (3d Cir.
2002). But “determinations made in assessing each
[preliminary injunction] factor are reviewed according to the
standard applicable to those particular determinations.”
Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002).
Our review of the District Court’s conclusions of law and
6
application of law to fact is plenary. Tenafly, 309 F.3d at 156.
“Although we normally will not disturb the factual findings
supporting the disposition of a preliminary injunction motion
in the absence of clear error, we have a constitutional duty to
conduct an independent examination of the record as a whole
when a case presents a First Amendment claim.” Brown v. City
of Pittsburgh, 586 F.3d 263, 268–69 (3d Cir. 2009) (quoting
Child Evangelism Fellowship of N.J. v. Stafford Twp. Sch.
Dist., 386 F.3d 514, 524 (3d Cir.2004)).
III
To determine whether a preliminary injunction should
issue, a court must consider “(1) whether the movant has a
reasonable probability of success on the merits; (2) whether
irreparable harm would result if the relief sought is not granted;
(3) whether the relief would result in greater harm to the non-
moving party, and (4) whether the relief is in the public
interest.” Swartzwelder, 297 F.3d at 234.
The first two factors are prerequisites that the moving
party must establish. See Greater Phila. Chamber of Com. v.
City of Phila., 949 F.3d 116, 133 (3d Cir. 2020). If these
“gateway factors” are established, the “court then determines
in its sound discretion if all four factors, taken together, balance
in favor of granting the requested preliminary relief.” Id.(internal quotation marks omitted). But “[i]n First Amendment
cases the initial burden is flipped. The government bears the
burden of proving that the law is constitutional; thus, the
plaintiff must be deemed likely to prevail if the government
fails to show the constitutionality of the law.” Id. (internal
quotation marks omitted).
7
A
We first consider whether Port Authority has shown that
it is likely to succeed on the merits. At this stage, at least, Port
Authority has not.
1
Speech by government employees receives less
protection than speech by members of the public. Historically
“a public employee had no right to object to conditions placed
upon the terms of employment—including those which
restricted the exercise of constitutional rights.” Connick v.
Myers, 461 U.S. 138, 143 (1983). But in time, the risk that
“government employees could be prevented or ‘chilled’ by the
fear of discharge from joining political parties and other
associations” led courts to adopt a balancing test, weighing an
employee’s interest in speaking against a government
employer’s interest in quelling that speech. Id. at 145.
Two threshold requirements must be met for employee
speech to qualify for interest balancing. First, employees must
speak “as citizens” rather than “pursuant to their official
duties.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). If an
employee’s job is to speak, the First Amendment does not
prevent a government employer from controlling the speech
for which the employee is employed. Id. at 421–22. Second,
employees must speak on “matters of public concern” rather
than mere “personal interest.” Borden v. Sch. Dist. of Twp. of
E. Brunswick, 523 F.3d 153, 168 (3d Cir. 2008). If an employee
speaks “upon matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel decision
taken by a public agency allegedly in reaction to the
8
employee’s behavior.” Connick, 461 U.S. at 147. “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.” Snyder v. Phelps, 562
U.S. 443, 453 (2011) (internal quotation marks omitted).
The conduct of Port Authority’s employees satisfies
both prerequisites. Port Authority did not hire these employees
to express their views on political and social issues. So, their
speech on these issues was not “pursuant to their official
duties.” Garcetti, 547 U.S. at 421. Port Authority’s mask rules
restrict speech on matters of public concern. “Black Lives
Matter,” “Thin Blue Line,” and anti-mask-mandate masks all
comment on matters of “political [or] social . . . concern to the
community” that are “subject[s] of legitimate news interest.”
Snyder, 562 U.S. at 453. Indeed, Port Authority imposed its
restrictions to prevent commentary on political and social
issues. To establish the constitutionality of its policies,
therefore, Port Authority must show that its interests outweigh
those of its employees.
2
Two precedents govern our analysis. Pickering v. Board
of Education establishes that when considering a restriction on
employee speech, courts must “arrive at a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.” 391 U.S. 563, 568 (1968).
How we weigh these considerations depends on whether the
employer imposed a prior restraint on speech or disciplined an
9
employee after the fact. United States v. National Treasury
Employees Union “clarified how courts should apply Pickering
when a restriction operated as an ex ante prohibition on
speech.” Lodge No. 5 of Fraternal Ord. of Police ex rel.
McNesby v. City of Phila., 763 F.3d 358, 368 (3d Cir. 2014)
(citing United States v. Nat’l Treasury Emps. Union (NTEU),
513 U.S. 454, 467 (1995)). When a “ban chills potential speech
before it happens . . . . the Government’s burden is greater . . .
than with respect to an isolated disciplinary action.” NTEU,
513 U.S. at 468. In prior-restraint cases, courts must consider
not just the specific speech that concerned the government, but
the “broad range of present and future expression” that the rule
chills and the interests of present and future speakers and
audiences. Id.In this case, we have both discipline imposed on
employees after they had engaged in certain speech and a
policy that prohibited or restrained future speech. Pickering
governs the former while NTEU governs the latter.
a
To determine whether the discipline meted out under
the July policy violated the First Amendment, Pickering
requires that we balance (1) the interest of the employee, “as a
citizen, in commenting upon matters of public concern,”
against (2) “the interest of the State, as an employer, in
promoting the efficiency of the public services it performs
through its employees.” Pickering, 391 U.S. at 568. This
balancing test is a “fact-intensive inquiry that requires
consideration of the entire record, and must yield different
results depending on the relative strengths of the issue of public
concern and the employer’s interest.” Munroe v. Cent. Bucks
Sch. Dist., 805 F.3d 454, 472 (3d Cir. 2015), as amended (Oct.
10
25, 2019). In other words, the inquiry “involves a sliding
scale” where “the amount of disruption a public employer has
to tolerate is directly proportional to the importance of the
disputed speech to the public.” Id.The Employees’ masks bore messages relating to
matters of public concern on which they had a strong interest
in commenting. See id. at 473 (“[S]peech involving
government impropriety occupies the highest rung of First
Amendment protection”); Love-Lane v. Martin, 355 F.3d 766,
778 (4th Cir. 2004) (assistant principal had an “especially
strong interest” in criticizing in-school racial discrimination).
By contrast, Port Authority can demonstrate an only minimal
risk that the Employees’ speech would cause workplace
disruption. The record shows a lone employee complaint, three
race-related incidents among Port Authority employees within
the past fifteen years, wholly unrelated to and predating the
mask rules, and electronic messages among employees
expressing differing opinions about the Black Lives Matter
movement. Moreover, Port Authority itself supported the
Black Lives Matter movement after the July policy was in
place, previously supported African-American Heritage
celebrations, and consistently allowed employees to wear
political buttons and hats in violation of its uniform policy, all
without precipitating the disruption it contends the Employees’
masks are likely to cause. Thus, the record does not “establish[]
that disruption is likely to occur because of” the Employees’
“Black Lives Matter” masks. Munroe, 805 F.3d at 472.
Accordingly, Local 85 has shown a likelihood of success in
proving that disciplining the Employees for wearing Black
Lives Matter masks pursuant to the July policy violated the
First Amendment.
11
b
We apply NTEU to Port Authority’s September policy
confining employees to a narrow range of masks. In prior-
restraint cases we consider not just the speech that concerned
the government, but all present and future expression that the
rule may chill. NTEU, 513 U.S. at 468. The government bears
the burden of showing that the “necessary impact on the actual
operation of the Government” outweighs that interest. Id.(internal quotation marks omitted). To satisfy this requirement,
Port Authority “must make two showings: first, that it has
[identified] ‘real, not merely conjectural’ harms; and second,
that the ban as applied . . . addresses these harms in a ‘direct
and material way.’” Fraternal Order of Police, 763 F.3d at 370
(quoting NTEU, 513 U.S. at 475).
i
“To demonstrate real, not merely conjectural harms, a
government must not only identify legitimate interests, but also
provide evidence that those concerns exist.” Id. (internal
quotation marks omitted). “The government need not show the
existence of actual disruption if it establishes that disruption is
likely to occur because of the speech.” Munroe, 805 F.3d at
472. Here, masks bearing political and social-protest messages
did cause controversy. Employees engaged in heated
arguments about the views expressed on such masks.
Management became involved because an employee
complained about a “Black Lives Matter” mask. And the
serious disruption caused by protests and riots following
Pittsburgh’s Black Lives Matter demonstrations justified Port
Authority’s concern that more severe disruption would likely
follow mask-related controversy. In addition, Port Authority
has demonstrated that the disruptive potential of political
12
speech is not unique to present-day circumstances. Political
speech disrupted Port Authority’s operations in the past; its
long-standing ban on political buttons was drafted in response
to an employee strike.
But there is also evidence that a wide range of political
and social-issue speech is not disruptive. Despite Port
Authority’s policy, employees have long worn political buttons
without disrupting Port Authority’s operations. Moreover,
employee dissension incited by Port Authority’s own social-
issue speech did not interfere with Port Authority’s operations.
These facts illustrate that even controversial speech on political
and social issues often does not disrupt Port Authority’s
operations.
Port Authority’s fear that “Black Lives Matter” and
other controversial masks might cause disruption to its service
is more than merely conjectural. But Port Authority has not
shown that the “broad range of present and future expression”
its policy forbids will disrupt operations. NTEU, 513 U.S. at
468.
ii
For its September policy to survive NTEU balancing
Port Authority must show that its policy is narrowly tailored to
the “real, not merely conjectural” harm it identified. Fraternal
Order of Police, 763 F.3d at 370 (quoting NTEU, 513 U.S. at
475). Port Authority has not made this showing.
Under NTEU, “[w]hen the Government defends a
regulation on speech as a means to redress past harms or
prevent anticipated harms, it must do more than simply posit
the existence of the disease sought to be cured. It must
13
demonstrate . . . that the regulation will in fact alleviate these
harms in a direct and material way.” Fraternal Order of
Police, 763 F.3d at 369 (alteration and emphasis in original)
(internal quotation marks omitted) (quoting NTEU, 513 U.S. at
475); see also Swartzwelder, 297 F.3d at 236 (“[A] tailoring
requirement . . . seems to be implicit in the [Supreme] Court’s
discussion.”). Proper tailoring does not require the regulation
to redress the harm entirely or that the regulation sweeps in no
harmless speech: Port Authority’s policy need not be
“perfectly tailored.” Williams-Yulee v. Fla. Bar, 575 U.S. 433,
454 (2015) (quoting Burson v. Freeman, 504 U.S. 191, 209
(1992)). “But when the burden comes closer to impairing core
first amendment values, or impairs some given first
amendment value more substantially, the requisite closeness of
fit of means and end increases accordingly.” Fraternal Order
of Police, 763 F.3d at 375 (internal quotation marks omitted).
In some respects, Port Authority’s uniform policy is
overbroad. It sweeps in the wide array of social-issue and
political speech in which Port Authority employees have long
engaged without causing disruption. See e.g., Swartzwelder,
297 F.3d at 238–39 (holding that a rule governing all expert
testimony by police officers was insufficiently tailored to the
interests of preventing officers from revealing confidential
information or missing work). This breadth is especially
suspect because the ban affects “core” political speech, an area
where fit must be particularly close. See Connick, 461 U.S. at
145 (“[S]peech on public issues occupies the highest rung of
the hierarchy of First Amendment values[] and is entitled to
special protection.” (internal quotation marks omitted)); see
also Fraternal Order of Police, 763 F.3d at 375. Port Authority
defends the breadth of its policy because it “make[s] it easier
for employees to comply.” App. 529. But the Supreme Court
14
has disapproved administrative convenience as a justification
for broad bans on government-employee speech. NTEU, 513
U.S. at 474.
In other respects, Port Authority’s policy is
underinclusive. Port Authority employees are permitted to
engage in political speech in other ways, such as through oral
or written communication. That speech has the same, if not
more, potential to cause disruption. Although the First
Amendment does not necessarily prohibit underinclusive
policies, underinclusiveness is relevant if it “reveal[s] that a
law does not actually advance a compelling interest.”
Williams-Yulee, 575 U.S. at 449 (“[A] State’s decision to
prohibit newspapers, but not electronic media, from releasing
the names of juvenile defendants suggested that the law did not
advance its stated purpose of protecting youth privacy.”). Port
authority must “show[] how the ban has any causal impact on
its stated harms,” so its failure to target equally disruptive
speech is probative. Fraternal Order of Police, 763 F.3d at
384.
For many years, Port Authority has not enforced its
political-button prohibition. And it became concerned about
political masks in response to growing division over the
messages on those masks. These facts suggest that prevailing
political conditions, rather than employees’ mode of speech,
dictates how contentious employees’ workplace political
debates will be. Port Authority makes no showing that
preventing mask-related disputes will redress the disruption it
fears. That suggests Port Authority’s policy “permit[s] many
of the harms that [Port Authority] purportedly seeks to
address” and that the “ban is illogically under-inclusive” and,
15
so, fails to satisfy the narrow tailoring requirement. Fraternal
Order of Police, 763 F.3d at 384.
Some considerations cut in Port Authority’s favor. Port
Authority’s policy applies only to speech at the workplace
expressed using masks. Limiting restrictions to working hours
has weighed in favor of employers in other circuits. See, e.g.,
Commc’ns Workers of Am. v. Ector Cnty. Hosp. Dist., 467 F.3d
427, 442 (5th Cir. 2006) (“A strong argument can be made that
governmental employer genuine and essentially neutral
uniform anti-adornment policies, administered without
discrimination, applicable only to employees while on duty,
will of themselves almost always pass Pickering balancing.”).
In addition, the “First Amendment does not require States to
regulate for problems that do not exist.” Williams-Yulee, 575
U.S. at 451 (quoting Burson, 504 U.S. at 207). The discord Port
Authority observed was mask-related, so naturally its solution
was mask-related. Finally, as Port Authority recognizes, it
should not and cannot discriminate on the basis of viewpoint.
But Port Authority has not shown that a narrower policy would
necessarily be viewpoint discriminatory.
The narrow-tailoring inquiry balances against Port
Authority, and any uncertainty must weigh against Port
Authority, as well, because Port Authority bears the burden of
showing that it is likely to succeed on the merits at trial. See
NTEU, 513 U.S. at 475 n.21 (“Deferring to the Government’s
speculation about the pernicious effects of thousands of articles
and speeches yet to be written or delivered would encroach
unacceptably on the First Amendment’s protections.”).
Although Port Authority is right to be concerned that if its
facially neutral policy does not comport with the First
Amendment it may be impossible to craft one that does, “where
16
there are heavy weights on both sides of the scale—the
balancing process can be performed more satisfactorily after
the speech has occurred, when both its usefulness and its
impact can be more accurately assessed.” Swartzwelder, 297
F.3d at 241. So, too, “the question before us here is not even
whether [the September policy] can ultimately be sustained,
but only whether the District Court abused its discretion in
holding that the plaintiff was likely to succeed in challenging
[it].” Id. At this stage, Port Authority has not shown that its
September policy is narrowly tailored, and, so, it has not shown
that it is likely to prevail on the merits at trial.
B
We next consider the second preliminary injunction
prerequisite: irreparable injury. “The loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Id. (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976)). When a government employer’s
restrictions on employee speech tread on First Amendment
interests, those restrictions work irreparable injury. Port
Authority’s mask rules prevented employees from expressing
their views on a range of issues, from race relations to mask
mandates. The First Amendment protects that speech, so
curtailing it inflicts an irreparable injury.
C
Our conclusion that Port Authority is unlikely to
succeed on the merits means we find that Local 85 is likely to
succeed. So we must also consider the final two preliminary
injunction factors: “whether an injunction would harm the
[Port Authority] more than denying relief would harm [Local
85],” and “whether granting relief would serve the public
17
interest.” Ass’n of New Jersey Rifle & Pistol Clubs, Inc. v. Att’y
Gen. N.J., 910 F.3d 106, 115 (3d Cir. 2018). We must also
consider whether the District Court abused its discretion in
weighing all four factors against each other. Id.We consider the ramifications of the injunction when
analyzing the final two factors. The District Court enjoined
Port Authority’s rule as to speech supporting Black Lives
Matter only. The injunction does not compel Port Authority to
restrict speech on other viewpoints, but it fails to foreclose that
outcome, raising a troubling risk of viewpoint discrimination.
On this point, the District Court spoke too broadly in
declaring that “there is nothing in NTEU, Pickering, or any
other precedential case from the Supreme Court or Third
Circuit that forbids content or viewpoint-based discipline in the
context of public employment.” App. 46–47. Government
speech may adopt a particular viewpoint, so long as it does not
coerce private speakers into espousing a certain view. See, e.g.,
Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576
U.S. 200, 207–08 (2015). But viewpoint-based government
regulations on speech are nearly always presumptively suspect.
See, e.g., Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 828 (1995).
That is no less true in the Pickering-NTEU context,
outside of certain narrow exceptions. See, e.g., Curinga v. City
of Clairton, 357 F.3d 305, 312–14 (3d Cir. 2004) (permitting
public employer to dismiss employee holding policymaking
position based on political affiliation). Concern over viewpoint
discrimination is the very reason Pickering rejected the older
rule that the First Amendment does not protect government-
employee speech. Connick, 461 U.S. at 144–45. In NTEU, both
the majority and dissent observed that employees were not as
18
heavily burdened by the honoraria ban as they could have been
because there was no content or viewpoint discrimination.
NTEU, 513 U.S. at 468; id. at 490–91 (Rehnquist, C.J.,
dissenting). So if the ban had been viewpoint discriminatory,
the government’s burden of justification would have been even
heavier. And in Rankin v. McPherson, an employee-speech
case, the Court cautioned that Pickering balancing must be
undertaken with “vigilance” to “ensure that public employers
do not use authority over employees to silence discourse, not
because it hampers public functions but simply because
superiors disagree with the content of employees’ speech.” 483
U.S. at 384.
We exercised such vigilance in Swartzwelder. There,
we disapproved the vague standard applied by the government
for approval of employee speech. That standard was whether
the speech was “valid” in the judgment of an assistant city
solicitor. Swartzwelder, 297 F.3d at 240. Specifically, we said
that so discretionary a standard is “troubling” and “disturbing”
because it “creates a danger of improper application,”
particularly in the hands of a single government employee. Id.Other circuits are similarly vigilant in requiring viewpoint
neutrality. See, e.g., James v. Tex. Collin Cnty., 535 F.3d 365,
380 (5th Cir. 2008) (emphasizing the need for viewpoint
neutrality in the Pickering line of cases); Wolfe v. Barnhart,
446 F.3d 1096, 1108–09 (10th Cir. 2006) (same) (collecting
cases). So contrary to the District Court’s statement, public
employers do not have a free hand to engage in viewpoint
discrimination toward their employees. At present, it suffices
to note that the more a public employer’s policy looks like
viewpoint discrimination—or is likely to foster such
discrimination—the less likely it will be to survive scrutiny
under Pickering-NTEU.
19
1
As for the third preliminary injunction factor, the
injunction does not harm Port Authority more than the enjoined
policy would harm Port Authority’s employees. See Greater
Phila. Chamber of Com., 949 F.3d at 133. As explained above,
the Employees’ masks are unlikely to cause the feared
disruption, and Port Authority suffers no legitimate harm from
not enforcing an unconstitutional policy. See ACLU v.
Ashcroft, 322 F.3d 240, 250, 251 n.11 (“[N]either the
Government nor the public generally can claim an interest in
the enforcement of an unconstitutional [rule].”), aff’d, 542 U.S.
656 (2004). The injunction enjoins Port Authority from
enforcing only the portion of its uniform policy that prohibits
any employee from wearing masks that display “Blacks Lives
Matter” or any similar messages identified during the hearing.
It does not affect other uniform rules or compel their
enforcement. Although Port Authority has no legitimate
interest in discriminating on the basis of viewpoint by
enforcing the mask rules that the District Court’s injunction
leaves undisturbed, the injunction does not compel Port
Authority to enforce those rules, so it does not adversely affect
Port Authority’s interests. Finally, Local 85 would face a great
harm if its members’ speech was restricted based upon the
viewpoint expressed.
2
The injunction is also in the public interest. There is a
strong public interest in upholding the requirements of the First
Amendment. See id. And, “if a plaintiff demonstrates both a
likelihood of success on the merits and irreparable injury, it
almost always will be the case that the public interest will favor
the plaintiff.” Am. Tel. & Tel. Co. v. Winback & Conserve
20
Program, Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994). Because
Local 85 has made both these showings and considering the
strong public interest in upholding the First Amendment, the
public interest favors granting an injunction.
* * *
We balance all four factors to determine if a preliminary
injunction should issue. “The decision to grant or deny a
preliminary injunction is within the sound discretion of the
district court.” New Jersey Rifle, 910 F.3d at 114. “Preliminary
injunctive relief is an extraordinary remedy,” and typically
“should be granted only in limited circumstances.” Kos
Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004)
(internal quotation marks omitted). But under the mirror-image
preliminary injunction analysis we apply in First Amendment
cases, that rule favors the grant of an injunction. Greater Phila.
Chamber of Com., 949 F.3d at 133. Port Authority bears the
burden of showing that it is likely to succeed at trial, and it has
not made that showing as to the narrow-tailoring requirement
of the Pickering-NTEU analysis. The harm the policy works is
irreparable, and both discretionary preliminary injunction
factors favor the injunction. The District Court did not abuse
its discretion by issuing the preliminary injunction.
In upholding the District Court’s ruling, we do not
suggest that Port Authority must allow the display of all
messages. For example, Port Authority could still prohibit
employee masks with messages that categorically fall outside
the scope of First Amendment protection, such as messages
that do not implicate matters of public concern. See Munroe,
805 F.3d at 474. Port Authority could also prohibit messages
that fall within the “well-defined and narrowly limited classes
of speech, the prevention and punishment of which have never
21
been thought to raise any Constitutional problem”: messages
that are obscene, defamatory, fraudulent, integral to criminal
conduct, or inciteful, such as “a hate group naming specific
groups or individuals as targets, or specifying instructions for
committing a crime.” United States v. Stevens, 559 U.S. 460,
468–69 (2010) (quoting Chaplinsky v. New Hampshire, 315
U.S. 568, 571–572 (1942); Unites States v. Bell, 414 F.3d 474,
483 n.10 (3d Cir. 2005). Nor do we suggest that Port Authority
may discriminate on the basis of viewpoint when imposing
limits on employee speech.
Our decision is narrow. We hold only that at this early
stage Port Authority has not shown that its mask policies
withstand constitutional scrutiny and, so, the District Court did
not abuse its discretion to enjoin enforcement of that policy
against “Black Lives Matter” masks. Another policy, another
message, a uniform requirement, or another set of interests may
be different. In each case the specific facts and circumstances
will be dispositive. In this case, we will affirm the District
Court.
22
PORTER, Circuit Judge, concurring.
Pickering v. Board of Education invites judges to
“balance” government employees’ First Amendment interest
in speaking on matters of public concern against “the interest
of the State, as an employer.” 391 U.S. 563, 568 (1968). And
so we have. But I write separately to observe that, applying
basic First Amendment principles, Port Authority’s July
restriction on “masks or other face coverings[] of a political or
social protest nature” fails before balancing even begins. App.
681.
Pickering itself is “rooted” in cases rejecting the rule
that the First Amendment did not protect government-
employee speech. Connick v. Myers, 461 U.S. 138, 144 (1983).
Specifically, the Court feared that the government would
discriminate on the basis of viewpoint. Id. at 144–45. The
Court reiterated this concern in United States v. National
Treasury Employees Union (NTEU). 513 U.S. 454, 468 (1995)
(“Although § 501(b) neither prohibits any speech nor
discriminates among speakers based on the content or
viewpoint of their messages, its prohibition on compensation
unquestionably imposes a significant burden on respondents’
expressive activity.”).
Another way of saying this, using a more recent
Supreme Court locution, is that “all forms of content-based
restrictions must be capable of reasoned application.” Ctr. for
Investigative Reporting v. Se. Pa. Transp. Auth. (SEPTA), 975
F.3d 300, 313–14 (3d Cir. 2020) (citing Minn. Voters All. v.
Mansky, 138 S. Ct. 1876, 1892 (2018)). In Minnesota Voters
Alliance v. Mansky, the Supreme Court held that a prohibition
on wearing a “political badge, political button, or other
political insignia” failed to provide any “sensible basis for
distinguishing what may come in from what must stay out.”
138 S. Ct. at 1888.
The same viewpoint-discrimination concerns that gave
rise to Pickering animate the Court’s reasoned-application
requirement for content-based restrictions of speech: The
potential for a government entity’s “‘own politics [to] shape
[its] views on what counts as “political”’ . . . [is] precisely the
problem at the heart of” that requirement. SEPTA, 975 F.3d at
316 (first alteration in original) (quoting Mansky, 138 S. Ct. at
1891). Content-based restrictions on speech must be capable of
reasoned application because “an indeterminate prohibition
carries with it ‘[t]he opportunity for abuse.’” Mansky, 138 S.
Ct. at 1891 (alteration in original) (internal citation omitted).
Although “some degree of discretion . . . is necessary” when
government officials enforce speech limitations, to prevent
“unfair or inconsistent enforcement,” that “discretion must be
guided by objective, workable standards.” Id.The viewpoint-discrimination concerns underlying
Pickering and NTEU’s limits on government-employee speech
restrictions make this reasoned-application requirement
applicable in the government-employee context. The D.C.,
Fourth, Ninth, and Tenth Circuits have all considered
viewpoint neutrality when conducting Pickering balancing.1
1
See Sanjour v. EPA, 56 F.3d 85, 96–97 (D.C. Cir. 1995);
Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550,
560–61 (4th Cir. 2011); Barone v. City of Springfield, 902
F.3d 1091, 1106 (9th Cir. 2018); Wolfe v. Barnhart, 446 F.3d
1096, 1108–09 (10th Cir. 2006).
2
Similar to the unconstitutional policy in Mansky, Port
Authority’s prohibition on “masks or other face coverings[] of
a political or social protest nature” defies reasoned application,
lacks objective, workable standards, and invites viewpoint
discrimination. App. 681. The July policy—a content-based
prohibition on speech—is too ill defined to pass constitutional
muster under any balancing test.
3