The Stanton Foundation First Amendment Clinic filed an amicus brief before the United States Court of Appeals for the First Circuit in the case Hussey v. City of Cambridge. The brief argues that their application of the Pickering balancing test to mocking and unpopular speech should afford public employees’ speech higher protection under the First Amendment. Otherwise, it would constitutionalize the so-called ‘Heckler’s Veto’, and the government would therefore be free to chill their employees’ unpopular viewpoints under the guise of preventing future disruption.
Hussey v. City of Cambridge arose after a police officer faced discipline after making social media comments in his private capacity about matters of public concern. The trial court holding and now-vacated First Circuit panel held in favor of the government.
Clinic student-attorneys Alexander J. McGrail ‘26 and John R. Neal, Jr. ’26 prepared a brief on behalf of amici and argued that the First Circuit en banc should reshape its doctrine to protect public employee’s First Amendment rights. The brief raised two arguments. First, allowing the government to punish controversial or unpopular viewpoints would run contrary to the principles underlying the First Amendment and the marketplace of ideas. Second, government employers should have to provide evidence for their allegations that employee speech would result in disruption in the workplace to prevent the unnecessary censorship of government employees First Amendment rights.
The following amici curiae joined the brief:
- Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law;
- Alan Chen, Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law;
- Bruce Hamilton, Director and Clinical Associate Professor, First Amendment Clinic at Tulane University School of Law;
- David L. Hudson, Jr., Associate Professor of Law, Belmont University School of Law;
- Nadine Strossen, John Marshall Harlan II Professor of Law Emerita at New York Law School and past President of the American Civil Liberties Union (1991-2008), Senior Fellow with the Foundation for Individual Rights and Expression;
- Eugene Volokh, Thomas M. Seibel Senior Fellow at the Hoover Institute at Stanford University and Gary T. Schwartz Distinguished Professor of Law at UCLA Law School.
- The Foundation for Individual Rights and Expression (“FIRE”) is a nonpartisan nonprofit that defends the rights of all Americans to free speech and free thought—the essential qualities of liberty.
- The Rutherford Institute is a nonprofit civil liberties organization that provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public about constitutional and human rights issues affecting their freedoms.
- The Woodhull Foundation is an organization that focuses on recognizing sexual freedom as a fundamental human right and protecting the right to express that.
The brief will not only provide guidance to the circuit court on key questions related to public employee speech rights but also served as an exceptional learning opportunity for students: “I was just really glad I had the opportunity to work on a brief with such enormous potential to change First Circuit doctrine,” said Neal. “This brief allowed me to argue for a creative solution to protect public employees’ free speech rights. I am thankful for the opportunity the Stanton Foundation has afforded me to not only argue on these important issues but also gain valuable practical experience too,” he added.
Working hands-on with partners across the country, McGrail observed, “It was fascinating to observe the iterative process that emerges when collaborating with a diverse group of highly knowledgeable First Amendment scholars from across the country, each bringing their own feedback and distinct perspectives on how best to address the issues.”
The court will review the parties’ filings and other amicus submitted in the case and is expected issue a ruling next year.