Could what you say in a private setting and in your personal capacity put you at risk of losing your career?
The question is at the center of a free speech lawsuit involving a Cambridge, Massachusetts, police sergeant whose opinions he shared about the late George Floyd — on his private social media account — led to his being placed on administrative leave for almost two months and to a four-day suspension without pay.
He deleted the post hours after it was posted, and after it had been screenshotted and shared with the National Association for the Advancement of Colored People, who shared it with his employer.
The issue has gained attention from the religious liberty nonprofit Becket, which filed a friend-of-the-court brief in Brian Hussey’s case on Thursday, citing a broader issue: The “accelerating trend of government employers punishing employees for their private speech, especially their religious speech.”
What did the post say?
Hussey’s post expressed his frustrations with the naming of the federal legislation focused on law enforcement accountability, titled the “George Floyd Justice in Policing Act of 2021.”
According to court filings, Hussey posted an article referencing the bill and its homage to Floyd, adding, “This is what it’s come to ... ‘honoring’ a career criminal, a thief and druggie ... the future of this country is bleak at best.”
Hussey filed a lawsuit against the city, alleging that his First Amendment rights were violated. A trial court dismissed his lawsuit. On appeal, the U.S. Court of Appeals for the 1st Circuit also ruled against Hussey, saying the “First Amendment guarantees the right of the people to speak on matters of public concern, and individuals do not lose that right simply by choosing to work for the government,” but, “Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.”
His comments, the court said, were too “disparaging.”
Despite multiple failures in the court, Hussey was granted a rehearing of his case last January that will include the full 1st Circuit.
In its amicus brief, Becket said that the circuit court’s use of the word “disparaging” is “not consistent with the Supreme Court’s 1st Amendment jurisprudence because it invites impermissible viewpoint discrimination and facilitates a heckler’s veto.”
“Americans don’t lose their right to speak their mind when they take a government job,” Adèle Keim, senior counsel at Becket, added in a release. “Someone who doesn’t like your politics — or your religion — shouldn’t be able to get you fired because of something you said to your friends outside of work.”
“The Supreme Court rejected McCarthyism in 1968,” said Keim. “The 1st Circuit should remind New England that when government employees talk politics or religion on their own time, the Constitution protects them.”