Port Authority asks to stay injunction permitting Black Lives Matters masks while it seeks appeals

The Port Authority of Allegheny County on Friday filed a motion seeking to stay a federal court injunction while it appeals the decision that found prohibiting employees from wearing Black Lives Matter masks was unconstitutional.

In the filing, the agency wrote that the court “disregarded Port Authority’s interest in protecting its captive customers from political or social protest messages.”

The appeal will go to the 3rd U.S. Circuit Court of Appeals.

The authority implemented a uniform policy prohibiting employees from wearing masks “of a political or social protest nature” following widespread protests over the death of George Floyd in May. Weeks later, after increased scrutiny by employees and community protests, the authority implemented an even more restrictive policy, allowing employees to wear only four approved types of masks: one with the agency’s logo, the union logo, solid blue or black, or a surgical N95 mask.

Employees with the authority’s Amalgamated Transit Union Local 85 filed a federal lawsuit against their employer on Sept. 30, alleging the policy violated their constitutional rights to free speech and equal protection.

On Jan. 19, U.S. District Judge J. Nicholas Ranjan ruled on a motion for an injunction in favor of the employees. He found that the authority’s policy banning political speech was arbitrary and overly broad.

The ruling enjoined the authority from enforcing its mask policy.

In its filing Friday, the authority alleges that Ranjan “erred in several important respects.”

Authority attorneys said the court committed reversible error in performing the balancing test to weigh the agency’s interest in prohibiting employees’ social protest speech and serving customers.

In its motion, the authority said it was entitled to consider the potential disruption caused by allowing employees to wear Black Lives Matter masks.

In addition, they alleged the court failed to recognize that the authority’s customers are a captive audience and that, under U.S. Supreme Court precedent, transit agencies can “lawfully prohibit political advertisements to avoid imposing the ‘blare of political propaganda’ upon their captive customers.”

Further, the authority argued that Ranjan’s decision eliminated the agency’s right to prevent anticipated disruption.

Although there was testimony indicating there was no public disruption of service over the masks, the lawyers wrote that doesn’t mean there won’t be in the future. They noted that because of the covid-19 pandemic, ridership declined more than 70%.

“The practical effect of the court’s ruling was to require Port Authority to prove that its employees’ speech had already caused ‘actual disruption,’ and not just that the speech was reasonably likely to cause disruption,” the motion said. “In fact, the court went so far as to suggest that Port Authority should (1) eliminate its uniform policy and (2) discipline its employees on a case–by–case basis after their speech has disrupted Port Authority’s operations.”

To get a stay pending appeal, the authority must show it has a strong likelihood of success on the merits, that it will suffer irreparable harm without a stay and that it serves a public interest.

An attorney for the union employees did not immediately return a message seeking comment.