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  • Jim Chapman

The First Amendment and an Officer’s Right to Comment.

Author: Jim Chapman

 

Plaintiff Brian Hussey began working as a Cambridge, Massachusetts police officer in 1998. For the first decade of his career, Officer Hussey worked as a patrol officer in lower Cambridge. In June 2009, Officer Hussey applied to and joined the Special Investigations Unit (“SIU”), where he conducted (approximately) a couple hundred drug crime investigations. As part of the SIU, Officer Hussey worked with confidential informants and spoke with drug users throughout the City of Cambridge. In order to secure the cooperation of these informants, Officer Hussey had to reassure the informants that the police officer were going to protect them and that the police officers would do whatever they could to help the informants. Indeed, much of Officer Hussey’s time was spent convincing drug users to trust him.


            On February 25, 2021, Officer Hussey shared—on his personal Facebook page—a news article from a local television station entitled, “House Democrats reintroduce police reform bill in honor of George Floyd.” In a comment that he made alongside the article, Officer Hussey wrote, “This is what its [sic] come to ‘honoring’ a career criminal, a thief and druggie  . . . the future of this country is bleak at best.” The bill in question, which never became law, proposed reforms to increase accountability for police misconduct, enhance transparency and data collection, and to eliminate discriminatory policing practices. The day that he made that Facebook post was a training day, and because he had previously completed his training online, Officer Hussey spent the day taking his children to the New England Aquarium instead. Officer Hussey made the post using his personal phone while at home, and Officer Hussey deleted the post a couple of hours after he posted it. In his post, Officer Hussey did not identify himself as a Cambridge police officer or reference his position in the police department. However, most of the people on his Facebook page would have known that Officer Hussey was a police officer because most of his Facebook friends were either retired or active members of the Cambridge Police Department. Officer Hussey’s Facebook account is restricted, and therefore, only those who have accepted his friend requests are able to see his posts. Officer Hussey does not accept friend requests from people whom he does not know.


            Approximately six days after he made it, Cambridge Police Commissioner Branville Bard became aware of Officer Hussey’s Facebook post after Richard Harding, who was then either the President or Vice-President of the Cambridge NAACP, contacted him. According to Commissioner Bard, Officer Hussey’s post was less than an hour old when a screenshot was shared with the NAACP, who then shared it with Commissioner Bard.


            Thereafter, Commissioner Bard and Cambridge City Manager Louis Depasquale met via video-conferencing with Harding, community activist Mo Barbosa, and former Mayor Ken Reeves (who was then an Officer with the Cambridge NAACP) to discuss Officer Hussey’s Facebook post. At that meeting, Commissioner Bard obtained a copy of the Facebook post and shared it with the Professional Standards Unit (“PSU”) for investigation. Commissioner Bard considered the post damaging to the reputation of the Cambridge Police Department because it was insensitive to individuals who’ve suffered from substance use issues. Specifically, Commissioner Bard considered the use of the word “druggie” derogatory and “dehumanizing” to people with substance abuse issues. Although he did not think that race played a role in Officer Hussey’s post, Commissioner Bard felt that the post disparaged George Floyd and would cause irreparable harm to the Cambridge Police Department’s reputation. Commissioner Bard considered the post especially harmful in the context of the national climate. During the course of the litigation, Commissioner Bard could not recall whether he received any additional calls or complaints about Officer Hussey’s Facebook post or if he received any additional complaints from Officer Hussey’s fellow employees at the Cambridge Police Department.


            During the investigation, the PSU investigators only interviewed Officer Hussey. During this interview, Officer Hussey gave his reasons for, explanation of, and intent in making his Facebook post. At the conclusion of its investigation, the PSU investigators determined that Officer Hussey’s Facebook post violated the Cambridge Police Department Rules and Regulations, which prohibits “discourtesy, rudeness, or insolence, to any member of the public” and which requires officers to “be courteous and act professionally at all times.” After two months of being placed on administrative leave, Commissioner Bard informed Officer Hussey that he was suspending him, without pay, for four days based on his Facebook post and based upon the violation of the Cambridge Police Department’s Rules and Regulations. Despite the PSU investigators’ findings and despite Commissioner’s Bard’s discipline of Officer Hussey, no policy prohibits Cambridge Police officers from posting on social media, although they are prohibited from posting on social media about non-work-related matters during work times.


            After receiving his discipline, Officer Hussey filed suit in the United States District Court for the District of Massachusetts against the City of Cambridge and Commissioner Bard, alleging that they had retaliated against him in violation of his First Amendment right to freedom of speech. After Defendants filed a motion to dismiss, the District Court denied the motion, except as to the claim brought against Commissioner Bard in his individual capacity. Although the District Court found that Officer Hussey’s post could have had a detrimental impact on the perception of the Cambridge Police Department internally and in the community, the District Court held that it could not dismiss the case on the question of whether the Department’s interest outweighed Officer Hussey’s interests without a more developed factual record. Therefore, the District Court allowed Officer Hussey’s claim to proceed against the City of Cambridge and Commissioner Bard in his official capacity. 


            At the conclusion of the period for discovery, the City of Cambridge filed a motion for summary judgment. The same day, Officer Hussey filed his own cross-motion for partial summary judgment based on the question of the Defendants’ liability for violating his First Amendment right to free speech. After considering the issue, the District Court found in the Defendants’ favor and against Officer Hussey, and the District Court dismissed the case. Hussey v. City of Cambridge, ___ F. Supp. 3d ___, 2024 WL 1075296  (D. Mass. Mar. 12, 2024).


            In reaching this conclusion, the District Court explained that the Constitutional right to free speech is protected by the First Amendment’s guiding principle that debate on public issues should be uninhibited, robust, and wide-open. Indeed, the public interest in that free and unhindered debate on matters of public importance is the core value of the Free Speech Clause of the First Amendment.


            The District Court further noted that there is universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs. This principle also protects, albeit to a more limited degree, the speech of public employees because public employees do not lose their First Amendment rights to speak on matters of public concern simply because they are public employees.


            However, when a citizen enters a public role, he or she must accept certain limitations on his or her freedoms because government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. A government employee speaking as a citizen on a matter of public concern can only be subject to those speech restrictions that are necessary for their employers to operate efficiently and effectively.


            The District Court, then, noted that the United States Court of Appeals for the First Circuit has established a three-step test for determining whether an adverse employment action violated a public employees’ First Amendment right to free speech. First, the court must evaluate whether the employee spoke as a citizen on a matter of public concern. If the court finds that the speech in question was made pursuant to the speaker’s official duties, then there is no First Amendment claim because restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties. Second, if the employee did speak as a citizen on a matter of public concern, then the court must look to whether the government entity involved had an adequate justification, based on the impact to its own operations, for the action it took towards that employee. Third, the court looks to whether the protected speech was a substantial or motivating factor in the adverse employment action.


            In Officer Hussey’s situation, the District Court opined that there was no dispute as to the first and third prong of the relevant test. Therefore, the Defendants’ liability turned on balancing the interest of Officer Hussey, as a citizen speaking on a matter of public concern, with the interests of the Defendants in restricting that speech to aid the effective and efficient fulfillment of its responsibilities to the public. In making that determination, the District Court stated that it had to consider: (1) the time, place, and manner of the employee’s speech, and (2) the employer’s motivation in making the adverse employment decision. If these factors demonstrate that the employee only faced those speech restrictions that were necessary for his employer to operate efficiently and effectively, then the defendants’ restrictions on speech were adequately justified and did not violate the First Amendment.


            Here, the District Court found that Officer Hussey’s post was, undoubtedly, about a matter of public concern: the naming of an official act of Congress and his objections to the name chosen for it. The proposed act sought to address police reform and racial inequality—issues of tremendous importance to the public. Moreover, given the galvanizing role that George Floyd’s death played in the widespread protests in 2020 and thereafter, the District Court found that there was value in the public’s continued discussions of George Floyd’s life and legacy.


            Furthermore, the District Court stated that the fact that Officer Hussey is employed as a police officer was relevant given that his comments were about the nature of a police reform bill. Discouraging Officer Hussey and other police officers from participating as citizens in discussions about public safety, police brutality, and racial profiling would deprive the public of a valuable viewpoint. It was also notable that Officer Hussey’s post was made on his personal Facebook account from his personal phone.


            However, the District Court found that the reach of Officer Hussey’s statement was amplified by it being made on a social media platform. According to the District Court, writing on Facebook is accurately compared to writing a letter to a local newspaper, and it suggests an intent to communicate to the public or to advance a political or social point of view beyond the employment context.


            Furthermore, the Court rejected Officer Hussey’s argument that his post could not have had a disruptive impact because the post was only up for a couple of hours on his private Facebook account because the post was screenshotted, its content was shared beyond Officer Hussey’s network, and it had begun to attract attention. Social media use in this context can be a double-edged sword. On one hand, social media can make any citizen a town crier with a voice that resonates farther than it could from any soapbox, increasing the message’s reach and Officer Hussey’s First Amendment interest along with it. At the same time, such increased exposure amplifies the potential consequences to employers.


            Finally, the District Court held that the value of Officer Hussey’s speech was lessened by the inflammatory and insulting manner in which his post was written because speech done in a vulgar, insulting, and defiant manner is entitled to less weight. The post called George Floyd a career criminal, a thief and druggie. The term “druggie” may be subject to differing interpretations, but in both its common understanding and in the manner it was used in the Facebook post, the term is employed as a pejorative to disparage its subject as a person struggling with drug addiction. Regardless, the District Court stated that the terms “thief” and “career criminal” are insulting, even though they reflect the fact that, for a ten-year period in George Floyd’s life from 1997 until 2007, he participated in criminal activity that included offenses related to theft and robbery.


            In sum, the District Court found that Officer Hussey maintained an  interest in being able to share his opinion on the topic through his Facebook post. Nevertheless, the District Court found that, even if it viewed his post in the light most favorable to him and resolved any factual disputes about its content or context in his favor, Officer Hussey’s interest was outweighed by the strong interest that the Cambridge Police Department had in restricting his speech.


            In evaluating the government’s interest in restricting its employee’s speech, courts must consider whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. Here, Officer Hussey asserted that there was no indication that his speech would disrupt the functioning of the Cambridge Police Department because of the lack of objections within the Cambridge Police Department, the Defendants’ failure to address similarly offensive speech, and the lack of controversy in the public sphere that followed the post. Conversely, the Defendants argued that Officer Hussey’s comments threatened the Cambridge Police Department’s functions because his public disparagement of George Floyd, who struggled with substance abuse and had a criminal history, could have jeopardized public trust in the Department.


Defendants noted that their concerns were underscored by a national climate, which placed a magnifying glass on the issue of bias within every police department.


            The District Court stated that the focus of its inquiry was on whether the Cambridge Police Department and Commissioner Bard’s predictions of disruption to the Department flowing from Officer Hussey’s post were reasonable, rather than whether Officer Hussey’s comments caused an actual adverse effect. The nature of the inquiry reflected the fact that government employers must have wide latitude in managing their offices without intrusive oversight by the judiciary in the name of the First Amendment. With that understanding, the District Court held that it must give substantial weight to government employers’ reasonable predictions of disruption and must give greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.


            In this case, the District Court was persuaded that the Defendants’ strong interest in maintaining public trust outweighed Officer Hussey’s interest in making his Facebook post. According to the District Court, the timing of events was a crucial factor—Officer Hussey’s statements came mere months after George Floyd’s death galvanized public criticism of policing and racial disparities, including in the City of Cambridge and the greater Boston area. Given the nationwide riots that followed, the District Court found that it was understandable that the Cambridge’s Police Department’s sensitivity to public perception was heightened, especially regarding discussions related to victims of police violence.

Notably, the effectiveness of the Cambridge Police Department, and any police department, depends on the maintenance of public trust. Acting in a biased manner, or creating a perception thereof, undermines that trust. The centrality of trust is highlighted by the Cambridge Police Department’s Mission Statement, which describes the Department’s mission as partnering with the community to solve problems and improve public safety in a manner that is fair, impartial, transparent, and consistent.


            In addition, the District Court held that it must provide greater deference to the Cambridge Police Department’s assessments of the risk of disruption because of its status as a law enforcement agency. Following George Floyd’s death and while police departments sought to rebuild trust in their communities, the need for this deference was even greater. According to the District Court, the community’s complaints about Officer Hussey’s Facebook post provided the necessary evidence to justify Defendants’ perception that Officer Hussey’s comments could have undermined public trust. Therefore, after weighing Officer Hussey’s interest in his Facebook post against his employer’s interest in the potential damage that it could have caused, the District Court found that the Defendants’ interest in maintaining the public’s confidence in the Cambridge Police Department outweighed any First Amendment interest that Officer Hussey had in making his Facebook post.


            In conclusion, the District Court opined that ensuring the free participation of the people in discussions of public affairs is of paramount importance—including for individuals who are employed by the public. The District Court recognized a limited exception to that principle here because the Defendants’ disciplinary actions were reasonably calculated to prevent disruption to the Cambridge Police Department via a further breakdown of trust from community members that Plaintiff’s comments could have caused. Accordingly, the District Court granted the Defendants’ motion for summary judgment and dismissed Officer Hussey’s First Amendment retaliation case against them.

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