By Jim Cline and Peter Haller
In Hussey v Cambridge, a police officer sued after he was suspended for four days without pay following a Facebook post he made criticizing a police reform bill named after George Floyd. The Court held that the officer’s First Amendment rights were not violated because the officer’s right to free speech was outweighed by the City’s interest in promoting community trust.
In the wake of George Floyd’s death, and amongst a heated national debate over police reform, Congress responded by proposing the George Floyd Justice in Police Act of 2021. Officer Brian Hussey of the City of Cambridge Police Department reposted an article about the act to his personal Facebook page. In the post, Hussey criticized the name of the act as “honoring a career criminal, a thief and druggie…” and stated, “the future of the Country is bleak at best.”
Hussey later deleted the Facebook post, but screenshots were taken and circulated, and community activists brought the post to the attention of the police commissioner sparking an investigation. Hussey clarified that he was outraged by Floyd’s death, that the officer who killed Floyd was a “disgrace to the badge,” and that his issue with the act was the fact that naming it after George Floyd was a “disservice to the spirit of the bill.” After the investigation resulted in a suspension without pay, Hussey sued the City of Cambridge and the police commissioner, Branville Bard, alleging that his First Amendment free speech rights had been violated.
The Court first noted that existing first amendment case law states that fostering free and unhindered debate on matters of public importance and government affairs is a core value and purpose of the First Amendment. Further, a public employee does not lose their free speech rights simply because they are a public employee. And that in general, government officials may not subject an individual to retaliatory actions simply for speaking out. In voicing his opinion about an act of Congress via his personal Facebook account, Hussey was a citizen engaging in speech on a matter of “public concern” that is typically protected by the above-mentioned principles.
However, the Court claimed that a public employee accepts certain limitations on their free speech rights when they enter a public role. The Court asserted that such limitations arise when a public employee’s speech is at odds with the “goals and missions” of the agency that employees them. It explained that while courts do not take restrictions on personal liberties lightly, there are situations where a government’s interest outweighs that of a public employee’s free speech rights.
“The heightened scrutiny on Hussey’s public comments is connected to the fact that a police officer is an especially public-facing role… Hussey’s post was subject to multiple interpretations, including some of which could undermine the non-punitive and rehabilitative approach that Bard and the Cambridge Police Department aimed to have.”
The Court reasoned that the City and the Police Department had a strong interest in maintaining public trust with the community. Further, that the timing of Hussey’s comments – made just month after the killing of George Floyd – came at a time when public trust was of paramount importance to the effectiveness of the Police Department. It adopted the City’s arguments that Hussey’s comments created a strong likelihood of undermining public trust and suggested that the Department did not believe in a non-punitive and rehabilitative approach to policing. Therefore, the Court concluded that the City’s interest in promoting public trust outweighed Officer Hussey’s free speech rights.
This case is probably wrongly decided but it’s still wise to recall the adage about expression, including use of personal social media accounts – “Just because you can, doesn’t mean you should.” In this case, the officer raised legitimate and logical questions about the wisdom of honoring George Floyd given him criminal past. But his use of the pejorative phrase “druggie” likely tipped this case against him.
This case is mostly out of step with the larger body of existing federal court case law on public employee speech which has robustly protected off duty speech on matters of public interest. It also seems to adopt and apply a less protective standard for police officers. The court undoubtedly was reacting to the strong expressions of public sentiments towards law enforcement in the wake of the George Floyd death. The purpose of the first amendment’s protection of speech that might be unpopular got lost in the court’s analysis.
Typically, public employee speech is protected whenever it addresses matters of “public concern.” The court acknowledged that standard was met here. Yet it found that City could discipline the officer for his off-duty comments because of the concern that members of the public would react negatively to it.
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