In St. Pat’s Dispute, Free Speech is Not the Issue

If you work for a major bank or retailer or airline, it’s more likely than not that you have to get corporate approval before identifying yourself as an employee while participating in a public event. That sort of approval would typically be required, for example, if you and a group of fellow workers wanted to carry a banner with your employer’s logo on it in a parade.

In many cases, that’s not a problem. Corporations welcome opportunities for branding themselves in a wide array of public settings they view as favorable marketing opportunities. The annual LGBT Pride Parade down Fifth Avenue has, in fact, become a riot of corporate logos and colors, with runners stuffing branded tchotchkes into the hands of often unsuspecting spectators. Corporate America, for the most part, loves to create customer loyalty within the LGBT community.

Employers, however, won’t approve the use of their name or logo in every event. Employee groups would encounter trouble winning approval for identifying themselves at demonstrations over controversial issues — say, abortion rights — whether it was a pro-choice or an anti-choice message the event was promoting. Corporations see little downside today in standing with the gay community, but most see reproductive freedom as an issue that still splinters public opinion. There is no clear winner in that debate from the marketing perspective of most businesses.

Approval would almost certainly be denied if an event were widely deemed as unpopular or patently offensive. It’s hard to imagine any major business allowing its name to be used in a march promoting bigoted or racist views.

Nobody would argue that, in denying their employees the authority to use their corporate identification or logo in a public event, a company was impinging on the free speech rights of their workers. Employers likely — and rightly — have little or no ability to control the right of their workers, on their own time, to participate in even offensive public events, but they can certainly control what events their corporate names are drawn into.

All of this is relevant because Mayor Bill de Blasio, in saying city workers have the right to march in uniform in the discriminatory March 17 St. Patrick’s Day Parade and that he “absolutely respect[s]” the decision by Police Commissioner William Bratton to do the same, suggests that the right to free speech or free expression is somehow at issue here.

It’s not, and the mayor should know that.

“The NYPD has a strong interest in controlling the use of its symbols, including its uniform. When an officer marches in uniform with a particular group, the clearest message sent to the public is that the NYPD –– not the particular officer –– approves of that group.” –– 1999 brief filed by the City of New York in the US Second Circuit Court of Appeals

The right of the parade’s organizers to deny participation by openly LGBT groups — to discriminate against them — has been upheld by the US Supreme Court. The parade is deemed a private event — even if one facilitated by significant public safety resources — and so its organizers have the right to control its message.

The city, however, bound by its human rights law, does not have the right to lend its authority and stamp of approval to that discrimination. And it does have the right to determine when its workers can use their uniforms and other symbols of their employment in public settings.

The city, in fact, has made precisely that argument in a federal appeals court. In a 1999 brief filed with the US Second Circuit Court of Appeals in a case involving police marching in uniform and with an identifying banner, the city argued, “As a quasi-military organization, the NYPD has a strong interest in controlling the use of its symbols, including its uniform. When an officer marches in uniform with a particular group, the clearest message sent to the public is that the NYPD — not the particular officer — approves of that group. If members insisted on the right to march in uniform with the Ku Klux Klan or the Nazi Party, the NYPD’s credibility with the community would be seriously undermined and its ability to perform its mission irreparably damaged.”

That’s the nut of the argument made by several hundred LGBT activists and their allies in a February 3 letter to de Blasio — that in co-signing the discriminatory practices of the St. Patrick’s Day Parade, uniformed city employees, the bulk of them police officers and fire fighters, are compromising the clear message of equal treatment under the law that LGBT New Yorkers, like all their fellow citizens, deserve to hear.

De Blasio has been widely and rightly praised for being the first mayor since David Dinkins to refuse to himself march in the parade. It’s unfortunate, however, that he has chosen to obfuscate the bigger issue at hand. As mayor, he has the potential to forge an historic breakthrough in the city’s sad St. Patrick’s Day history by insisting that the parade organizers either end their bigoted practices or risk losing the colorful participation of uniformed police and firefighter contingents.

LGBT New Yorkers have the right to expect de Blasio to lead in this fashion. And they should also be able to hope that our new progressive mayor does not accord misplaced “respect” toward those who choose to join the narrow-minded crowd that controls Fifth Avenue on the 17th.