Yes, The First Amendment Protects Displaying The ‘Thin Blue Line’ Flag Even In Publicly Owned Buildings
Most people seem to understand the First Amendment protects their right to say stupid or offensive things, especially when they’re the ones saying them. These same people often forget the First Amendment does not protect them from counter-speech, during which they may be publicly decried as stupid or offensive.
The same goes for most government employees in most situations. First Amendment protections aren’t quite as free-ranging when public servants are involved, but it certainly doesn’t just disappear because the expression springs from government sources.
That’s the upshot of this decision, which features some hot government-on-government action. On one side, we have police officers and their union litigating on behalf of their First Amendment rights after being “silenced” by a city statute that targeted just one particular form of expression: the display of the cop-bastardized version of the American flag known as the “Thin Blue Line” flag.
The decision [PDF], handed down by a federal court in Pennsylvania (and brought to us by Courthouse News Service), contains some handy depictions just in case no one’s familiar with law enforcement’s preferred “us vs. them” shorthand.
There’s this version, which is described by the law enforcement plaintiffs in their lawsuit as representing a “show of support for [and] a solidarity with member[s] of law enforcement, which includes, police officers.” Not only that but it allegedly “represents the preservation of the rule of law” and the “sacrifice of fallen law enforcement officers.”
Whew. That’s a lot to ask from one slightly altered American flag. But that’s what the suing officers claim, as well as the union reps from the Springfield Township Police Benevolent Association (PBA), which has not-so-boldly decided to incorporate this separatist version of the American flag into its logo:
Kind of gross, to be honest. The “blue line” flag doesn’t do the things the plaintiffs claim it does. Instead, when displayed by cops or their unions, it represents the “us vs. them” mentality that permeates US law enforcement. The “thin blue line” doesn’t represent cops saving us non-cops from criminal anarchy as much as it represents law enforcement’s insular culture. But I suppose a “circle the wagons” flag wouldn’t be nearly as popular.
In this mockup, the stars represent police supervisors, union reps, and other officers on the scene surrounding an officer involved in an egregious violation of rights — a show of solidarity that includes crafting narratives, synchronizing statements, and applying generous amounts of white-out to in-progress reports to ensure everyone is telling the same story the PD’s PR reps are currently delivering to nearby reporters. More accurate but certainly far less inspiring.
Anyway… back to the lawsuit.
Springfield tried to break up the insular cop culture by enacting a resolution prohibiting the display of the “thin blue line” flag “on all township property” earlier this year. That resolution became the immediate target of this lawsuit, filed by a handful of PD employees, as well as their police union.
Why? Because these cops and their reps have plastered the “blue line” flag all over the police station, which resides inside the main township government building. While not displayed (at least not prominently) in areas accessible by the public, the fake-ass flag is displayed nearly everywhere else in the station.
Although there are no depictions of the Flag in the lobby area of the station (Doc. No. 47-1 at ¶ 80), it does appear in other areas of the station, to which the public has limited access (id. at ¶ 75), including:
- A bulletin board displaying patches from other police departments depicting the Thin Blue Line American Flag,
- A wooden Thin Blue Line American Flag hanging on a wall,
- A Thin Blue Line American Flag hanging on a wall,
- Thin Blue Line American Flags displayed in the safety office,
- A wooden “ballot type” box,
- On a recycling bin, and
- On challenge coins displayed on officers’ desks.
The court notes the township perhaps had a legitimate reason to forbid the posting of this flag on town property.
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.
The town passed its resolution, prompted in part by the police union’s decision to revamp its logo to incorporate the “blue line” flag. The police union and these police officers wanted nothing to do with dispelling the perception that those displaying this particular flag were supportive of law enforcement actions/officers who engaged in police brutality and/or racial animosity. Instead, they sued.
They’re right, even if their insistence on displaying this flag is not nearly as correct. Whatever injury they might suffer (which appears to be, at most, a reprimand from city officials and/or removal of the offending flag) is still an injury. The speech is protected and this specific targeting of only one certain form of expression by town employees is exactly the sort of thing the First Amendment strictly forbids.
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.
Not only that, but if the town wished to eliminate expression that might undermine trust in local law enforcement or discourage racially divisive behavior, it needed to go even further than it did here. On one hand, the law goes too far already. On the other hand, it doesn’t go far enough, as least according to the town’s own assertions in defense of its hastily erected (and poorly thought out) resolution against this one particular form of speech.
In addition to being overbroad, the Resolution is underinclusive in that Township employees, including police officers, are allowed to engage in other forms of discourse that could exacerbate racial tensions and undermine public confidence in the Police Department. For example, 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.” Both forms of speech would seem to trigger the same concerns that the Township is trying to address through the Resolution, perhaps in an even more direct way.
Sure, it’s a little bit more complex than that because it involves the government regulating the government, but at the end of it all, it’s still impermissible. The town’s cops are free to be divisive and the town’s residents are free to think the cops are being divisive. But the town itself can’t really do much about this other than encourage its officers to be less divisive. The First Amendment protects this expression, though, as divisive as it may be. And that’s how it should be. Even divisive expression is still protected expression.