Federal appeals court strikes down NYC transit rule barring wearing of buttons

Wednesday, September 1, 1999

A New York City Transit Authority rule prohibiting employees from wearing buttons, badges or other insignia violates the First Amendment, a federal appeals court has ruled.

An agency rule provided that “Uniformed employees are not permitted to wear buttons, badges, or other insignia other than those specified as part of the regulation uniform, except by permission of the Authority.”

The agency enforced the rule against several employees who were dissident members of the union that represented most of the agency's 40,000 bus and subway employees.

In 1992, while union officials were negotiating with management over a new collective bargaining agreement, members of the union who opposed the agreement began wearing “VOTE NO” buttons.

After agency officials threatened further discipline for violations of the no-button rule, a group of employees sued in federal court. They contended the rule violated their First Amendment free-speech rights.

In 1996, a federal magistrate recommended that the federal court rule against the button ban. Two years later, the court issued a permanent injunction, prohibiting transit officials from enforcing the rule.

On appeal, the 2nd U.S. Circuit Court of Appeals agreed in Scott v. Meyers, finding that the rule was unconstitutionally overbroad.

Transit officials had made three arguments before the appeals court.

  • The lawsuit was moot because the plaintiffs no longer wished to wear the “VOTE NO” buttons.
  • The lawsuit should be dismissed because the labor dispute was not a matter of “public concern.”
  • The rule, even if construed to be a matter of “public concern,” was justified because it helped ensure a safe, harmonious workplace.

In its Aug. 25 ruling, the 2nd Circuit rejected all three arguments. The lawsuit was not moot, said the court, because “the restrictive force of the rule did not cease to operate on plaintiffs when the contract ratification controversy was resolved.”

Next, the appeals court rejected the “public concern” argument. While public employees must show that their speech in such cases was a matter of so-called “public concern” or of general public importance — as opposed to a purely private employment dispute — the 2nd Circuit determined that it did not need to address the “public concern” argument because the plaintiffs' lawsuit challenged more than simply the suppression of the “VOTE NO” buttons.

“By the terms of the rule, plaintiffs are being prohibited from wearing buttons (absent permission) on abortion policy, the rights of Native Americans, trade policy toward China, the conservation of natural resources, and all other subjects,” the court wrote.

Finally, the court addressed the transit authority's argument that the rule was necessary to ensure a safe and efficient workplace. The 2nd Circuit applied the rule laid down by the U.S. Supreme Court in its 1968 decision Pickering v. Board of Education. In Pickering, the high court said that a court must balance “the interests of the [employee], as citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”

The transit officials attempted to justify the rule on three bases:

  • The rule promoted efficient and harmonious relationships with customers.
  • The rule promoted safety by preventing possible hostile reactions to the buttons.
  • The rule prohibiting all buttons, rather than just provocative buttons, kept the city from discriminating on the basis of individual views.

The employees countered that the transit officials failed to show how wearing buttons would undermine the employer's interests. According to the plaintiffs, the agency's justifications fell short.

The 2nd Circuit noted that a “properly drafted rule” against the wearing of buttons may be constitutional. For example, the appeals court noted that a rule prohibiting employees from wearing buttons on their uniforms when dealing with customers would be constitutional.

However, the appeals court noted that the transit authority's rule contained no such qualification. “It prohibits the wearing of buttons at all times, regardless whether the employee's job ever places the employee in contact with the public and regardless whether the employee is in contact with the public while wearing the button,” the court wrote.

The transit authorities argued to the appeals court that the vast majority of workers had jobs which brought them into contact with the public. However, the appeals court noted that “employees whose jobs put them in contact with the public are not necessarily in public contact throughout the day.” The court noted that the buttons were aimed at co-workers, not at the general public which “would not have known even the issue on which the button advocated a 'no' vote.”

“We conclude that the dangers cited by the TA as justification for its no-button rule are not sufficiently great when buttons are worn by employees out of the presence of the public to justify this government restriction on free expression by employers,” the court wrote.