Labor & Employment Law Daily Wrap Up, RETALIATION—1st Cir.: Officer’s ‘mocking’ post about bill honoring George Floyd not constitutionally protected, (Aug 18, 2025)

By Kathleen Kapusta, J.D.

Speech “commenting on public ‘issues in a mocking, derogatory, and disparaging manner’ is accorded less weight in the balancing test.”

Although a divided First Circuit agreed that a Cambridge, Massachusetts, police officer and the public had a significant First Amendment interest in the officer’s speech—a Facebook post about a House police reform bill named in honor of George Floyd—it found the value of that speech was modestly diminished due to its “mocking, derogatory, and disparaging nature.” Concluding that the police department’s interest outweighed the officer’s, the court also noted that the department’s prediction the post could undermine its relationship of trust with the community was reasonable and there was no evidence suggesting anything else drove the department’s decision to discipline him. Accordingly, the court affirmed summary judgment against his First Amendment retaliation claim. Judge Howard, dissenting, argued that “a government agency is not free to discipline an employee for simply expressing a viewpoint with which the employer disagrees to friends outside of work” (Hussey v. City of Cambridge, No. 24-1279 (1st Cir. Aug. 15, 2025)).

Eleven years after he joined the Cambridge Police Department as a patrol officer, the plaintiff joined the department’s Special Investigations Unit. While there, he participated in numerous drug investigations and developed relationships with confidential informants, who were often current or former drug users. In 2020, he returned to his role of patrol officer.

Facebook post. In February 2021, while at home and from his personal phone, he shared to his personal Facebook page an article titled "House Democrats Reintroduce Police Reform Bill in Honor of George Floyd.” He also posted the following comment: "This is what it's come to... 'honoring' a career criminal, a thief and druggie... the future of this country is bleak at best." He deleted the post several hours later, purportedly because it did not generate much conversation. At that time, only people he accepted as “friends” could view his posts and he had 674 Facebook friends, including 90 current or former members of the department.

Suspension. Six days later, a senior officer of the Cambridge chapter of the NAACP informed the police commissioner about the post. The commissioner placed the officer on leave and initiated an investigation by the department’s Professional Standard’s Unit (PSU), which determined that he violated department policy against "[d]iscourtesy, rudeness, or insolence to any member of the public" and its rule that officers must "[b]e courteous and act professionally at all times." The officer was ultimately suspended without pay for four days.

Prior proceedings. In his subsequent lawsuit, the officer alleged that he was disciplined in retaliation for exercising his First Amendment rights. Granting summary judgment in favor of the department, the district court, emphasizing the contemporaneous civil unrest, found that the officer’s suspension did not violate his constitutional rights.

Significant weight? The officer appealed to the First Circuit, which first noted that the parties agreed he spoke as a citizen on a matter of public concern and that his speech motivated the department’s decision to suspend him. The officer, however, argued that his comment on the House bill was entitled to significant weight in the Pickering balancing test because it touched on important political issues. Although the Supreme Court “has frequently reaffirmed[,]... speech on public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is entitled to special protection,” the First Circuit pointed out that speech commenting on public issues “in a mocking, derogatory, and disparaging manner" is accorded less weight in the balancing test.

For his part, the officer argued that the term "druggie" is not offensive and that none of the individual words he used were inherently derogatory, profane, or racially charged. Disagreeing, the court looked to the context of his words and how the message was conveyed in finding that his speech was not entitled to special protection. He referred to George Floyd as "a career criminal," "a thief," and a "druggie" and suggested that "the future" of a country that would honor him by naming legislation after him "is bleak at best.” Because of the words he chose, said the court, his post “disparaged both George Floyd and those who rallied in response to the horrific circumstances of his death” and thus his speech was not on the "highest rung" of the First Amendment "hierarchy.”

Actual disruption. The officer next argued that despite the department's legitimate interest in preventing disruption to its ability to carry out its mission, it should not have been permitted to take adverse action against him absent a showing of "actual disruption" resulting from his speech. According to the officer, allowing government employers to regulate political speech based only on predicted disruption would "invite governmental abuses" and violate "the intent of the First Amendment."

Emphasizing that it has long recognized that an “employer need not show an actual adverse effect in order to terminate an employee under the" Pickering balancing test, the court pointed out that "an employer may consider a speech's potential to disrupt" even when a government employee's speech touches upon important political issues. Refusing to depart from it is own precedent by requiring government employers to wait for actual disruptions to their operations before disciplining employees for their speech, the court stressed that the rule in this circuit “requires a government employer's prediction of disruption to ‘be reasonable based upon the record.’”

Reasonable prediction. While the officer argued that the department’s prediction of disruption was not reasonable because it could not have reasonably anticipated his speech would negatively impact internal workplace harmony, the department explained that it was motivated by its concern the officer’s post would undermine its relationship of trust with the public. Finding the department’s prediction was reasonable, the court pointed out that he posted about the House bill during a period of intense scrutiny of, and protests against, law enforcement. Further, sometimes the protests turned violent and resulted in injuries and deaths. “Given the contentiousness of this period, the Department's concern about its reputation within the community is easy to understand,” said the court.

As to the officer’s assertion that "nothing about the time, place, and manner of [his] speech had the potential to be disruptive" because he posted on his personal Facebook account, from his personal phone, while he was at home, the court explained that “speech does not need to occur within the workplace during working hours for a government employer to predict reasonably that it could disrupt the employer’s provision of public services.” Moreover, the court noted, “once speech is posted on the internet, the speaker has virtually no control over its distribution, creating the possibility that it will reach a far broader audience far more quickly than speech disseminated in other ways.”

No disruption during pendency of investigation. Also rejected was the officer’s argument that the department’s prediction of impaired community relations was unreasonable because "there was no evident disruption" during the pendency of the investigation. Here, said the court, “the reasonableness of the Department's prediction of disruption cannot turn solely on whether its initial prediction materialized during the time it took the PSU to conduct its investigation,” as to “hold otherwise would be to require the Department to show actual disruption to justify suspending [the officer].”

Rather, the court explained, a lack of actual disruption during the investigation, prior to the imposition of final discipline, is simply one factor to consider as part of the reasonableness inquiry. The court also pointed out that, here, the probative weight of the absence of actual disruption was diminished because of a plausible link between the period of calm during the investigation and the investigation itself. Accordingly, the court found the department's prediction of disruption was reasonable.

Thus, affirming summary judgment to the department, the court found the department’s interest outweighed the officer’s in the Pickering balancing test.

Dissent. Dissenting, Judge Howard argued that “As is commonplace in the era of social media, [the officer] expressed a view online that may very well have fared poorly in the court of public opinion and that even he attests, in retrospect, that he wishes he had phrased differently. Even so, ‘the First Amendment does not permit one side of a debate to use the government to cancel the other side. It allows all perspectives, even the very offensive, to be heard.’”

His “expression of one such unpopular perspective on legislation pending before his elected representatives,” Howard continued, “is of the kind quintessentially draped with the utmost protection by the First Amendment. Especially as the Department's justification for punishing him for that speech was demonstrably unreasonable, the Pickering balance tilts decisively in his favor -- a result that the appropriate analysis on even just one side of the scales would produce.”

The case is No. 24-1279.

Judge: Lipez, K.

Attorneys: Jack Ives Bartholet (Lichten & Liss-Riordan) for Brian Hussey. Kate Kleimola, City of Cambridge Law Department, for Cambridge, Massachusetts, Christine Elow, and Branville G. Bard, Jr.

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