This is one of those cases that seems obvious, until you consult the history books.
You might think to yourself, of course a city can't ban its police officers from contributing to political campaigns -- that's ridiculous. Except, in 1917, the "Bloody Fifth" Ward incident happened: Cops beat up an opposition candidate, killed a detective who tried to intervene, and terrorized the candidate's supporters. Because, ya know, machine politics.
A series of reforms followed, culminating in a 1951 ban on political contributions by cops as a prophylactic against corruption. The ban stood for more than 60 years, until the Third Circuit cut it down this week, citing a few obvious free speech problems.
So, There Might Be a Harm Underlying the Ban
Judge Thomas Hardiman, writing for a unanimous court, began with the U.S. Supreme Court's United States v. National Treasury Employees Union (NTEU) decision from 1955, which held that the government must "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."
He then went back-and-forth on whether the harms were real:
"Over 60 years later, however, the record is essentially devoid of the harms that motivated the charter's passage. To suggest today that there is a Republican machine that controls Philadelphia politics would be viewed as absurd by even a casual political observer. Indeed, with that party having been reduced to a mere 12 percent of registered voters, it is now reasonable to conclude that the Democratic Party dominates the city's politics. Regardless of whether such is the case, the city submitted no evidence to suggest that the Democratic Party has corrupted, or is attempting to corrupt, the Philadelphia Police as the Republican Party had done during the first half of the 20th century."
He didn't stop there. He also that "a government may [not] indefinitely restrict its employees' First Amendment rights by referencing some bygone harm."
But, the law was passed 60 years ago, with undeniable justification, and the threat of the police giving preferential treatment to candidates and donors looms large, with no evidence presented to counteract this long-standing historical justification.
One example cited by the court of preferential treatment in action: the Fraternal Order of Police's "courtesy card," given to large donors, which "may become an improper ticket to preferential treatment."
But This Won't Fix It
Even with that lukewarm finding of harm, the city still has to show that the ban addresses the problem. And that's where the city failed miserably.
"The charter ban, as implemented and applied in this case, is poorly tailored to the city's articulated interests," Hardiman held. "Because the ban is not 'closely drawn to avoid unnecessary abridgment of associational freedoms,' it unconstitutionally restricts the FOP plaintiffs' participation in the political process."
"The city also fails to persuade us why the contribution ban should apply only to the police, and not to the approximately 20,000 other individuals in its employ," he continued.
Hardiman brought up the issue of firefighters, who were also covered by the regulation. The Philadelphia firefighters' union, "in a case remarkably similar to this one, successfully challenged the ban as an unconstitutional infringement on its members' First Amendment rights" in 2003. The city did not appeal and no longer enforces the ban against firefighters.
The court also noted that the city allows officers to participate in physical demonstrations -- on union time -- but bars financial contributions, "political activities by the police that have similar, if not more pernicious, implications" than fundraising.
- Lodge No. 5 of the Fraternal Order of Police v. City of Philadelphia (FindLaw's Cases & Codes)
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