Amicus Brief: Cambridge Cannot Punish Twenty-Year Police Veteran for Facebook Post Based on Mere Speculation.

Hussey v. City of Cambridge 

Brian Hussey has served the City of Cambridge as a police officer for more than two decades. In February 2021, Brian shared an article about a federal police reform bill on his personal Facebook account, adding a short comment criticizing the decision to name the bill after George Floyd. No one was harmed. No work was disrupted. Brian even deleted the post within hours. 

That should have been the end of it. But the Cambridge Police Department launched an investigation, suspended Brian without pay for four days, and placed him on administrative leave for nearly two months—solely because his supervisors disagreed with what he said. 

After the district court dismissed his lawsuit, a panel of the U.S. Court of Appeals for the First Circuit affirmed, concluding that his speech deserved less First Amendment protection because the panel found it “mocking, derogatory, and disparaging.” The full First Circuit vacated that decision and granted rehearing en banc.  

CIR’s amicus brief urges the en banc court to bring the First Circuit back in line with every other federal appellate court that has addressed the issue. The Supreme Court has long held that a government employer cannot punish an employee for speech based on mere speculation that the speech would likely disrupt the workplace. The employer must produce real evidence. The First Circuit has been an outlier. This case is the court’s chance to fix that. 

Why This Case Matters: 

There are more than 23 million public employees across the country—teachers, nurses, firefighters, building inspectors, scientists, librarians, police officers. These employees do not give up their First Amendment rights when they accept a government job. The Constitution protects their right to speak as private citizens, on their own time, about matters of public concern. Courts must weigh that protection against a government employer’s interest in running an efficient workplace. But that balance cannot be decided by guesswork, and it cannot tip against an employee just because supervisors find the speech distasteful or politically inconvenient. The Supreme Court has been clear: The government must make a substantial showing—backed by evidence—that the speech is actually likely to disrupt operations. 

Across the country, public employers have punished workers for off-duty social media posts on controversial topics—not because the speech caused any real disruption, but because supervisors disagreed with it. If courts allow that, public employees face an unconstitutional ultimatum: Stay silent on public issues or risk your livelihood. 

Background: When Can a Government Employer Punish an Employee for Speech? 

The First Amendment protects public employees who speak as private citizens on matters of public concern. Under the Supreme Court’s line of cases, courts balance the employee’s free speech interest against the government’s interest in workplace efficiency. In Watters v. Churchill (1994), the Court made clear that when the speech addresses a matter of public concern, the government must make a “substantial showing” that the speech is likely to be disruptive before it may be punished.  

Brian’s case shows what happens when courts allow government employers to skip that step. After receiving an isolated complaint, the Cambridge Police Department suspended Brian without pay for four days and then placed him on administrative leave for nearly two months—all for a private social media post he had voluntarily taken down within hours. A panel of the First Circuit affirmed the district court’s dismissal of Brian’s First Amendment claim, ruling that Brian’s speech was less deserving of First Amendment protection because it was “mocking derogatory, and disparaging.” The full First Circuit vacated that decision and granted rehearing en banc. 

CIR’s amicus brief surveys recent decisions from the Third, Sixth, Eighth, and Ninth Circuits—each of which has rejected discipline based on the kind of speculation about disruption and “loss of public trust” that the Cambridge Police Department offered in this case. The panel’s rule is out of step with its sister courts. The full First Circuit should bring it back in line.