Hussey v. Cambridge – Free Speech of Public Employees

We filed an amicus brief urging a federal appeals court to apply the correct test to determine if a Massachusetts police officer’s comments are protected by the First Amendment.

The brief does not take a position on the ultimate outcome of whether the speech was protected, but seeks to ensure the proper test is applied to determine the ultimate outcome.

The friend-of-the-court brief was filed in Hussey v. City of Cambridge by the ACLU of Maine, ACLU of Massachusetts, ACLU of New Hampshire, ACLU of Rhode Island, and the ACLU Speech, Privacy, and Technology Project.

The case involves a Cambridge police officer, Brian Hussey. In 2020, Mr. Hussey posted on his personal Facebook page to criticize federal police reform legislation known as the “George Floyd Justice in Policing Act.” Mr. Hussey used insulting and derogatory terms to describe George Floyd in the post, saying, “this is what it's come to ... ‘honoring’ a career criminal, a thief and druggie ... the future of this country is bleak at best.”

The Cambridge Police Department disciplined him for the post. Mr. Hussey sued, arguing that the discipline violated his First Amendment rights. The ACLU does not take a position on whether Mr. Hussey’s discipline was justified. Instead, the ACLU brief urges the en banc First Circuit to clarify the proper standard for evaluating if Mr. Hussey's First Amendment rights were violated, and to send the case back to the district court for reconsideration under the proper test.

The U.S. District Court for the District of Massachusetts ruled that Mr. Hussey’s speech was not protected by the First Amendment. The court asserted that because the speech was mocking, insulting, and derogatory, it should receive less constitutional weight in the legal balancing test that governs the speech of public employees.

The ACLU strongly disagrees with the officer’s comments about George Floyd and does not take a position on the ultimate outcome of whether Mr. Hussey’s speech was protected by the First Amendment. But this case raises important questions about how the First Amendment rights of public employees are evaluated. Our brief requests that the en banc appeals court hold that “mocking, derogatory, or disparaging” messages do not receive less First Amendment weight than other free speech on matters of public concern.

We’re asking the appeals court to have the trial court reexamine the case by applying the correct standard. The U.S. Supreme Court has repeatedly held that the controversial or offensive character of speech on public issues is irrelevant to the weight of its First Amendment value. In cases like this one, the only proper place for the court to consider the character of the speech is in its fact-based analysis of whether the speech threatened to disrupt the workplace and undermine the provision of public services.

If courts allow government employers to punish employees’ political speech just because it is vulgar or offensive, the First Amendment rights of public employees will depend on subjective codes of etiquette and standards of good taste. That kind of government thumb on the scale of public discourse is anathema to the principles of free speech we all depend on, and that is exactly why we are asking that the court apply the proper standard to this case.