The Third Circuit Court of Appeals last week ruled 2-1 against Montgomery County’s Springfield Township in a dispute with its police officers over displaying the pro-cop “Thin Blue Line” version of the American flag.
Previously, the Springfield Township Board of Commissioners had voted 5-2 to approve a resolution banning the “thin blue line on an American flag” (TBLAF) that the township’s Police Benevolent Association (PBA) has adopted as a symbol. Critics call the image, widely used at public events to honor fallen police officers, a “symbol of white supremacy.”
For police officers, however, it’s a sign of solidarity as they perform a dangerous job that’s necessary for society to function.
A federal judge ruled in favor of the PBA. The township filed an appeal to the Third Circuit.
“The township’s attack on the Thin Blue Flag was blatantly unconstitutional,” said Wally Zimolong, who represents the PBA in the case. “The District Court recognized this within days of the filing of the complaint when it issued a preliminary injunction. It recognized this again when the court entered a permanent injunction against the township at summary judgment.
“Now, the Third Circuit has affirmed what we have known all along. Unfortunately, the township doubled and tripled down, sacrificing, at the altar of ‘woke,’ hundreds of thousands of taxpayer dollars defending the ban. That money could have been spent to improve the community rather than chasing ‘woke’ fantasies and attacking our courageous police officers.”
In the non-precedential opinion, Circuit Judge Paul Matey wrote, “A tempest in a teapot brewed when the Township of Springfield passed a policy forbidding township employees from displaying a variation of the American flag supporting law enforcement officers. Because that policy violated the First Amendment, we will affirm the District Court’s judgment.”
Matey noted, “The First Amendment protects the free speech of government employees when they speak ‘as citizens’ rather than ‘pursuant to their official duties.’” He added, “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.”
But his colleague, Judge Patty Shwartz wrote, “To some, the TBLAF represents police solidarity. To others, it communicates a white supremacist message, which could erode public trust in the police.
“When public confidence in law enforcement declines, public safety suffers. As a result, viewing the facts and drawing inferences in the Defendants’ favor, a reasonable jury could conclude that the township’s interest—in preventing the erosion of public trust in law enforcement by restricting the display of a symbol associated by some with white supremacy—outweighs the rights of the Fraternal Order of Police and police officers, to display the TBLAF in certain circumstances.
“As a result, I conclude that the District Court erred in granting Plaintiffs’ motion for summary judgment. Therefore, I respectfully dissent,” Shwartz wrote.
Township Solicitor James Garrity said the township may file a motion for the full Third Circuit Court to decide the case since there was a split decision by a three-judge panel.
On the township website, the Board of Commissioners wrote commissioners are disappointed by the decision but “respect the judicial process.”
“We feel the decision of the court has limited the First Amendment rights of municipalities and public organizations at-large and has taken a measure of control of municipal property out of the hands of the people and their duly elected officials. This will have a substantial impact beyond our own community that may not be fully appreciated at this time.
“It is important to note that the decision was not unanimous, and that the dissenting opinion strongly believes that the Township should have been given a chance to demonstrate both its concern and its right to prohibit the display of this controversial symbol on township property or in any manner suggesting the township’s support. It seems clear that the First Amendment Rights of the township deserve nothing less,” the BOC wrote.
The commissioners called a special meeting to decide whether to appeal for 5:30 Feb. 6 at the township building, 1510 Paper Mill Road.