The American Civil Liberties Union, the ACLU of Rhode Island, and four other Affiliates under the jurisdiction of the U.S. Court of Appeals in Boston filed a brief yesterday in that court in a case addressing public employees’ ability to engage in “disparaging” speech in their personal capacity on important public issues. The case involves a Cambridge, MA police officer who was disciplined for his comments on a personal Facebook post about George Floyd. The brief argues that the court applied an inappropriate standard by judging the officer’s speech based on its tone, rather than any disruptive effect it had in the workplace, potentially diminishing free speech protections for all public employees.
In 2020, Cambridge police officer Brian Hussey, after the murder of George Floyd, shared on his personal Facebook page an article titled “House Democrats Reintroduce Police Reform Bill in Honor of George Floyd,” and added: “This is what it’s come to ... ‘honoring’ a career criminal, a thief and druggie ... the future of this country is bleak at best.” Hussey deleted the post after two hours but was later disciplined for it when it was brought to the attention of police officials. He filed suit over the discipline, arguing that it violated his First Amendment rights. Both the district court and the U.S. Court of Appeals for the First Circuit, in a 2-1 vote, ruled against Hussey by holding that his post was entitled to reduced First Amendment protection because, even though the comments were made in his personal capacity and addressed a serious public issue, they did so in a “mocking, derogatory, and disparaging manner.” Last month, the entire appellate court agreed to rehear the case and invited parties to file briefs on the issue raised by the case.
To determine if punishing a public employee on the basis of their speech is constitutional, courts apply a three-step test known as the Pickering test. The court determines if the plaintiff was speaking as a private citizen on a matter of public importance; whether the discipline was substantially motivated by the content of the employee’s speech; and whether the First Amendment protections of the employee’s speech are outweighed by the government’s interest in preventing workplace disruption. The ACLU brief argues that the test was inappropriately applied in this case by focusing on the tone in which the Facebook post was written rather than whether the post caused workplace disruption.
The civil liberties organizations’ brief explains the consequences of evaluating employee speech — about any topic that could be considered offensive or controversial — with the wrong test, saying:
“The First Amendment value of public-employee speech depends on the extent to which it addresses public issues, rather than its adherence to inherently subjective standards of civility. . . From the cartoons of Thomas Nast to the headlines in the Onion, mocking, derogatory, and disparaging speech has often played a pivotal role in public discourse...
“Reducing the First Amendment value of this speech licenses the government to discriminate against the expression of offensive or controversial views, without showing that the speech threatened to disrupt the workplace. It usurps the public’s right to decide for itself which speech on public issues is most worthy of attention. And it places courts in the untenable position of deciding—according only to their own intuitions and biases, rather than a factual record regarding disruption—which particular messages on matters of public concern are too uncouth to merit constitutional protections.”
The ACLU’s brief requests that the appellate court hold that “mocking, derogatory, or disparaging” messages do not receive less First Amendment weight than other speech on matters of public concern, and to have the district court reexamine the case applying the correct standard.
Last September, in a dispute also involving controversial personal speech made by a public employee, the ACLU of Rhode Island expressed support for the free speech rights of a local public school teacher who was suspended after he made inflammatory statements on his personal TikTok account about the killing of Charlie Kirk.
Lynette Labinger, cooperating attorney for the ACLU of RI, said today: “The constitutional right to express oneself freely, without fear of government sanction or retaliation, means little if it only protects those who speak on the right side of an issue, in moderate tone and civilly. In protecting that right to the fullest extent of the law, we do not necessarily signal an agreement – and many times may vigorously disagree – with the statements being made, but we ensure that the First Amendment protects us all from inappropriate government censorship.”
Background information on the case can be found here.