Blank masks for bus drivers
AU.S. District Court judge in January ruled that Port Authority’s uniform policy, which prevents employees from wearing clothing or accessories with political or social messaging, violated employees’ freespeech rights. The same judge reaffirmed the position this week.
Judge Nicholas Ranjan’s written opinion is compelling. He says the authority was overly broad and failed to answer the question: Exactly what sort of specific political speech could be fairly prohibited under current legal standards? In other words, the judge found that the agency didn’t prove exactly what kind of message would cause precisely what kind of damage and that, in the absence of that proof, the sacrifice of a constitutional right was too big an ask.
We applaud the judge for his support of free speech. But the ruling perches the Port Authority on the proverbial slippery slope — and gives a push. And that’s a good reason for Port Authority to appeal. And the agency is.
Port Authority rightly points to local protests, riots and demonstrations in 2020 as examples of an incendiary environment. Why add political or social messaging to work uniforms? It could reasonably amount to dropping a lit match onto a puddle of gasoline.
The issue merits the further deliberation it will receive during the appeal process: Where falls the legal line between protected speech and speech that could disrupt day-to-day business operations? Must actual disruption happen before the line is drawn or is the reasonable expectation of trouble enough? Even more basic, does a business have a right to control the on-duty work attire of its employees? To this, the well-established answer is “Yes.” And that is reason enough to give the authority the right to ban political and social messaging — how about all messaging? — on face masks.
The legal challenge was launched by Local 85 of the Amalgamated Transit Union, which represents Port Authority employees, when the authority decided to update its uniform policy to address the wearing of face masks after an employee complained about another bus driver wearing a face mask supporting the Black Lives Matter movement. Prior, face masks weren’t addressed because, well, face masks weren’t being worn, pre-pandemic.
The authority has expressed that it supports the BLM movement in principle, but that allowing employees to wear potentially politically charged clothing in today’s fraught climate could prove disruptive for customers and employees. It, therefore, extended an existing ban on political or social statements on clothing to face masks. That original ban dates to the 1970s.
Judge Ranjan ruled that there was not sufficient evidence to support the idea that face masks with a message would be disruptive, calling such messaging “otherwise innocuous speech.” There was evidence that bus drivers who wore Black Lives Matter masks before the ban was put in place rarely, if ever, caused a stir from other employees or the public.
But what would happen if a bus driver showed up to work with a MAGA mask, a “back the blue” mask or even a Confederate flag mask? Once the door to political messaging on work uniforms has been opened, what would prevent the kind of messaging that would be deemed by most to be hostile?
That is why the authority has a reasonable interest in prohibiting all political messaging on work uniforms. And, in this case, the prohibition is merely an extension of a longtime policy — even if there is evidence that policy was not enforced with vigor.
The judge essentially advised the authority to deal with masks on a case-by-case basis.
So, should the Port Authority create a department of political acceptability? A regulator who would give a thumbs up or down to each mask? Who in the Port Authority should be responsible for edicts on the “right” kind of face mask message. As certain as tomorrow’s sunrise, another legal challenge is waiting in the wings.
The Port Authority has a right to establish the parameters of its uniform. If the uniform currently requires face masks, that should be within the purview of the authority. No free-speech violation occurs in this consistency.
Fistfights have broken out in grocery lines over face masks. Tussles have occurred over MAGA hats. Road rage has been sparked over bumper stickers. Anticipating that political messages on face masks could cause trouble is forward-thinking.