The opinion of the court was delivered by: BLOCK
The Court previously referred to Magistrate Judge Roanne L. Mann for a report and recommendation ("R&R") defendants' motion for summary judgment on plaintiffs' first, tenth, eleventh and twelfth causes of action, and plaintiffs' motion for summary judgment on the first, eleventh and twelfth causes of action. Defendants have submitted objections ("Objections") to the R&R issued by Magistrate Judge Mann on December 24, 1996. These are limited to the R&R's overbreadth ruling in respect to the eleventh and twelfth causes of action, which allege that defendant Transit Authority's ("TA's") anti-adornment regulation (the "Rule") violates the First Amendment to the United States Constitution.
The Court has considered the TA's Objections and conducted a de novo review of the R&R. Fed. R. Civ. P. 72(b); see also United States v. Premises Known as 281 Woodbury Road, 862 F. Supp. 847, 851 (E.D.N.Y. 1994) (magistrate judge's rulings on dispositive matters subject to de novo review). The Court adopts in full Magistrate Judge Mann's disposition of the matters referred to her. However, although the Court agrees with the R&R's conclusion that the Rule is unconstitutional because of its overbreadth, the Court reaches that result through a somewhat different analysis.
It is well settled that a law is facially void if it "does not aim specifically at evils within the allowable area of [government] control, but . . . sweeps within its ambit other activities that constitute an exercise" of protected rights of expression. Thornhill v. Alabama, 310 U.S. 88, 97, 84 L. Ed. 1093, 60 S. Ct. 736 (1940). The Court notes the obvious: that the Rule, which proscribes every conceivable button, badge, or other insignia a TA employee could wear on his or her uniform, is clearly overbroad unless the TA can establish that such a sweeping prohibition serves a government interest that outweighs the employees' First Amendment rights.
The only interest posited by the TA to justify such a ban is its asserted need for strict uniformity in the appearance of TA employees. In their Objections, the TA proffers three reasons to support this contention: (1) the TA's interest in "providing safe and efficient transportation services to millions of New Yorkers without disruption or inconvenience;" (2) the fact that "other emotionally charged controversial messages . . . might be worn on uniforms;" and (3) the fact that TA employees have contact with the public. For purposes of its analysis the Court will assume that all TA employees subject to the Rule have contact with the public.
The cases upholding prohibitions based on the uniformity rationale all concern law enforcement or military organizations. In these cases, the need for uniform appearance is tied to the organization's interest in "fostering discipline, promoting uniformity, encouraging esprit de corps, and enhancing the identification of its employees as members of its organization . . . ." Immigration & Naturalization Serv. v. Federal Labor Relations Auth., 855 F.2d 1454, 1465 (9th Cir. 1988). These cases have established a bright-line rule that, as a matter of law, law enforcement agencies have such needs for strict uniform appearance. See id. at 1464 ("We believe that the right to require a uniform necessarily encompasses the right to require an unadorned uniform."); see also United States Dep't of Justice v. Federal Labor Relations Auth., 955 F.2d 998, 1004 (5th Cir. 1992) ("When a law enforcement agency enforces an anti-adornment/uniform policy in a consistent and nondiscriminatory manner, a special circumstance exists, as a matter of law, which justifies the banning of union buttons."). Even when dealing with the unobtrusive wearing of a yarmulke, the Supreme Court upheld an Air Force regulation that barred the wearing of any head gear whatsoever. Goldman v. Weinberger, 475 U.S. 503, 89 L. Ed. 2d 478, 106 S. Ct. 1310 (1986).
Although the TA is not a military or law enforcement organization, the Court need not here decide whether an anti-adornment rule can never be justified by a non-military or non-law enforcement organization because the TA has, in any event, failed to establish that it has a sufficient interest in uniformity to overcome the broad sweep of the Rule. The TA has offered little more than speculation and conclusory allegations to support its alleged need for uniformity. This does not suffice to overcome a motion for summary judgment. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1995) (summary judgment cannot be defeated through "conclusory statements, . . . conjecture or surmise."). Mere incantations that a pristine uniform is necessary to provide safe public transportation by TA employees having contact with the public is clearly insufficient to legitimatize an anti-adornment rule which renders nugatory all expressions of constitutionally protected speech contained on a button, badge or insignia. The TA has therefore failed to meet its burden of proving an interest sufficient to outweigh the employees' First Amendment rights. See Connick v. Myers, 461 U.S. 138, 150, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (where speech involves a matter of public concern, the employer must then show that its interests in the efficiency of its services outweigh the employee's First Amendment rights).
We are not here dealing with a button-by-button analysis, but rather with the desire of the TA to obtain the Court's approbation for a rule which proscribes any type of button.
Cf. American Fed'n of Gov't Employees v. Pierce, 586 F. Supp. 1559 (D.D.C. 1984) (striking down ban on political buttons); United States Dep't of Justice v. Federal Labor Relations Auth., 955 F.2d 998 (5th Cir. 1992) (upholding Immigration and Naturalization Service ban on union lapels). Nor are we concerned with evaluating the appropriateness of challenges concerning private employers' anti-adornment uniform rules in the context of unfair practice complaints under the National Labor Relations Act which do not implicate constitutional concerns. See, e.g., Burger King v. National Labor Relations Bd., 725 F.2d 1053 (6th Cir. 1984).
As an alternative ruling, the R&R determines that the "as-applied" challenge in the eleventh cause of action should proceed to trial because there are genuine issues of disputed fact as to whether the Rule was enforced in a discriminatory manner. In a related holding, the R&R advises that summary judgment should be denied with respect to the qualified immunity defense to the "as-applied" challenge. Since these provisional denials of summary judgment were both predicated on the contingency that this Court rejects the facial challenge, they are accordingly dismissed as academic.
United States District ...