A Cambridge, Massachusetts, police officer is suing the city, claiming that his employer violated his right to free speech.

The city moved to dismiss the lawsuit, but a federal district court is allowing it to move forward.

Officer Brian Hussey maintains a private Facebook page, which does not identify him as a police officer, where he occasionally posts political comments or articles. While off-duty, Hussey used this platform to criticize Democrats in the House of Representatives for naming a police reform bill in honor of George Floyd. He shared a news story and added a comment writing, “This is what its [sic] come to ‘honoring’ a career criminal, a thief and druggie . . . the future of this country is bleak at best.”

Hussey took the post down approximately two hours later. However, the Cambridge Police Department was notified of the post. Hussey was placed on administrative leave for two months and ultimately received a four-day suspension. He then sued the city for violating his First Amendment right to free expression.

The U.S. Supreme Court has established that government employees have a First Amendment right to speak on public issues as private citizens. However, that right must be balanced against the public employer’s interests, namely that of delivering efficient public services.

U.S. District Court opinion

The U.S. District Court acknowledged that the post was potentially inflammatory and likely to be offensive to both members of the public and other officers.

The court also acknowledged that the Cambridge Police Department has a strong interest in promoting public trust and preventing discord among officers. However, the court reasoned that, at this stage, there was no evidence those interests were actually harmed.

Without further information, the court felt unable to weigh the public interests of free speech and discourse against the police department’s interests. The court signaled that those interests would likely supersede Hussey’s if evidence was provided, but the city is still required to proceed with costly litigation.

In its opinion, the court provided examples of evidence that could support the police department’s case, including evidence that the case had received attention from the public or the media, had interfered with outreach efforts, had violated written policies, or had been discussed by Hussey’s coworkers.

Takeaway for employers

The case is a reminder that discipline should not be an automatic response when an employee makes a controversial social media post. Take time to collect evidence and document the actual or likely impact of the employee’s comments and cite that evidence in any disciplinary action. Be certain that you understand the constitutional protections employees may be entitled to when posting online.