A Massachusetts police officer urged a federal appeals court on Wednesday to strike down his four-day suspension over a social media post he wrote criticizing George Floyd, claiming the police department infringed on his free speech rights.
The full bench on the U.S. Court of Appeals for the First Circuit heard arguments in a case brought by Cambridge police officer Brian Hussey challenging his suspension for a February 2021 Facebook post he made criticizing Floyd, a black man who was killed by a white police officer in Minneapolis in 2020. The post, which was quickly deleted by Hussey, included a link to a news article about House Democrats introducing a police reform bill named after Floyd, and in it Hussey questioned the decision to name the bill after Floyd, calling him a “druggie,” “thief,” and “career criminal.”
Hussey was suspended for four days without pay after the police department placed him on administrative leave for weeks pending an investigation into his social media post. He filed a lawsuit challenging his suspension, claiming it violated his First Amendment free speech rights. A federal district court judge and a three-judge panel of the First Circuit both sided with the police department in Hussey’s First Amendment claims, prompting him to appeal to the full First Circuit.
The full appeals court heard arguments Wednesday afternoon in a Boston courtroom, with Hussey’s lawyer, Jack Bartholet, claiming the police officer “posted a mainstream, but locally unpopular political view” and argued that being disciplined for such a post “is not and cannot be consistent with the First Amendment.”
The judges on the First Circuit sharply questioned Bartholet’s claims that Hussey’s post was not capable of causing a “disruption” and therefore was not speech that the department could lawfully discipline. One of the judges questioned how disruptive a post would need to be for punishment to be lawful and not infringe upon free speech rights.
“The disruption needs to be related either to the operations of the employer generally, or the day-to-day operations of the employee,” Bartholet said in response. “They would need to show some sort of disruption, either to what officer Hussey did on a day-to-day basis, or that was felt throughout the department.”
When asked about hypothetical scenarios, Bartholet stressed that an action or post by an officer could not be a disruption simply because it is labeled as such, noting that “you need to weigh the disruption against the First Amendment interest.”
Robert Loeb, the lawyer for the city of Cambridge and the other local officials, argued that their actions were justified because Hussey’s comments disrupted the police department’s relationship with the community. Loeb specifically singled out Hussey, describing Floyd as a “druggie,” claiming the police department had spent “years” earning trust through its rehabilitation programs for people with substance abuse issues.
“In this case, where he is on the force for more than 20 years and spent more than a decade working on drug offenses, for someone like him, to flippantly call someone who’s a substance user a ‘druggie,’ sends a message that of disrespect to those people and to their families,” Loeb said, as he was grilled on how Hussey’s comments were disruptive to the police department’s work.
Loeb told the panel of judges that they suspended him for violating department policy with his post and that it disrupted public trust in the police department.
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“The disruption is one of undermining the trust. And the police report cites him for one of the rules there, you need to be courteous and respectful to the citizens of the city of Cambridge, and found that he had violated that,” Loeb said. “And showed that he had shown specific disrespect for the class of people who have substance issues and their families, etc. So he’s in violation of that rule.”
The appeals court did not offer a timeline for when it will issue a ruling in the case. The forthcoming appeals court ruling, whether in favor of Hussey or the city of Cambridge, could be appealed to the Supreme Court.
