Courts have long recognized that applying the First Amendment’s free speech protection to the public employment context requires a balancing act. The Supreme Court’s 1968 decision in Pickering v. Board of Education established the now-familiar framework to determine whether a public employer violates the First Amendment in restricting or disciplining employee speech. Under Pickering, courts weigh a public employee’s right to speak as a citizen on a matter of public concern against the government employer’s interest in preventing workplace or public disruptions and efficiently carrying out its purpose.
That balance is increasingly tested in the age of social media. Online posts are often quickly linked to a public employee’s identity and official role, and can spread quickly to a wide audience. Although Pickering recognizes public employees’ First Amendment interest in speaking on controversial or publicly debated issues, the realities of social media create a particularly strong potential for that speech to attract attention and cause public outrage or disruption. Two recent federal appellate court decisions, Hedgepeth v. Britton from the Seventh Circuit and Hussey v. City of Cambridge from the First Circuit, show how courts have applied Pickering in this new context.
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Hedgepeth v. Britton
Jeanne Hedgepeth taught social studies at Palatine High School in Illinois for twenty years. By 2020, she had twice been suspended for profane outbursts in class and formally warned that further incidents could lead to dismissal. Despite those warnings, Hedgepeth posted a series of inflammatory comments on Facebook during the protests that followed the killing of George Floyd. Her posts included a remark about not wanting to return home “now that the civil war has begun,” a meme suggesting protesters be hosed down, and the statement that “white privilege” was as racist as the “N” word.
Although her account was set to private, roughly 80 percent of her 800 Facebook friends were former students, and the posts quickly circulated within the school community. Current students, parents, and alumni complained, and local and national media covered the story. The School District received more than 135 emails and phone calls expressing outrage. The Superintendent and District Board concluded that Hedgepeth had violated school policies, undermined her role as a model for students, and irreparably damaged her effectiveness as a teacher. After two public meetings filled with critical comments, the District Board voted to terminate her.
Hedgepeth challenged the dismissal in federal court, arguing that her Facebook posts were protected speech. The district court granted summary judgment to the School District, and the Seventh Circuit affirmed. Applying Pickering, the Court held that her comments addressed matters of public concern, but gave her interest less weight in light of the disparaging tone and the nature of the remarks. The Court found the School District’s interest outweighed Hedgepeth’s, finding that Hedgepeth’s statements undermined her credibility with students, parents, and colleagues, and impaired the School District’s ability to carry out its educational mission. The panel concluded that, in this context, the School District’s interest in preserving trust and effective operations outweighed Hedgepeth’s First Amendment interest in making the posts, and that the termination was consistent with Pickering’s balancing framework.
Hussey v. City of Cambridge
Brian Hussey, a longtime officer in the Cambridge, Massachusetts Police Department, was disciplined for a March 2021 Facebook post criticizing the George Floyd Justice in Policing Act, and an article referring to the Act as being “In Honor of George Floyd.” Hussey’s post stated “This is what it’s come to … ‘honoring’ a career criminal,” referred to Floyd as a “druggie,” and concluded that “the future of this country is bleak.” The post was visible to his Facebook friends, which included other officers. Although Hussey deleted the post after a few hours, it had been captured by screenshot, and a local organization contacted the department to express its concerns.
The Department placed Hussey on leave while it investigated. Internal Affairs reviewed the post under departmental rules requiring courtesy, professionalism, and conduct that does not undermine public confidence in the police. Investigators concluded that the language in Hussey’s post violated these standards by casting doubt on his impartiality and reflecting poorly on the department at a time of heightened scrutiny of policing. Hussey was suspended without pay for four days.
Hussey sued the City, arguing that his suspension amounted to retaliation for protected speech. The district court granted summary judgment for the City, and Hussey appealed.
The First Circuit affirmed. Applying Pickering, the Court acknowledged that Hussey’s comments on federal legislation involved a matter of public concern, but accorded his First Amendment interest less weight due to the post’s mocking tone and disparaging language. On the other side of the balancing test, the Court found the City had a strong interest in protecting public trust and preventing disruption to the Department’s law enforcement mission. Although the City had not shown that Hussey’s post caused actual, substantial disruption, the Court reiterated prior First Circuit precedent establishing that a public employer may act on a reasonable prediction of disruption. It accepted the Department’s judgment that failing to discipline Hussey risked undermining confidence in the police and impairing its effectiveness, particularly during a period of heightened public scrutiny of policing. The Court therefore upheld the suspension as consistent with Pickering’s balancing framework.
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Both Hedgepeth and Hussey show how courts apply Pickering balancing to public employees’ social media speech. Each case involved posts about race and policing during periods of heightened national controversy, when institutions were under intense public scrutiny. The courts agreed the speech addressed matters of public concern. However, the same qualities that make online speech relevant to public debate also increase the likelihood that it will be viewed as disruptive. In this setting, courts give significant attention to an employer’s evidence or reasonable prediction of disruption when deciding how the balance should be struck.
Hedgepeth v. Britton, 2025 U.S. App. LEXIS 21793 (7th Cir. 2025); Hussey v. City of Cambridge, 2025 U.S. App. LEXIS 20858 (1st Cir. 2025).