Boston Police Officer’s Tweets from “Stop the Steal” Rally Protected by First Amendment Against Government Employer Retaliation

⋅ 13 de janeiro de 2025

An excerpt from the >16,000-word opinion written by Commissioner Paul Stein in Abasciano v. Boston Police Dep’t, decided last month by the Commonwealth of Massachusetts Civil Service Commission, though just posted on Westlaw:

The substantive issue presented in this appeal is whether certain tweets sent by the Appellant on January 6, 2021, while attending the so-called “Stop the Steal” rally in Washington, D.C., constituted substantial misconduct that warranted his termination as a Police Officer in the Boston Police Department (BPD). It was undisputed that, when the tweets were sent, the Appellant was off duty, they were sent from a private Twitter account and they did not identify the Appellant or his employment with the BPD. It was also undisputed that the Appellant did not participate in any way in the violent insurrection that day at the Capitol following the rally.

The BPD conducted two thorough internal investigations—one by the Anti-Corruption Division (ACD) completed in May 2021 and another by the Internal Affairs Division (IAD) completed in November 2021. The ACD investigation confirmed that the Appellant had not personally participated in the violent insurrection or committed any criminal acts. As to the Appellant’s tweets, the IAD investigation concluded that they were not intended to incite or condone violence and they did not impact the Appellant’s ability to do his job. Overall, these investigations concluded that the Appellant had not engaged in any misconduct that violated the BPD’s Rules and Procedures.

More than a year later, in December 2022, newly appointed BPD leadership reopened the Appellant’s IAD file and, this time, reached a starkly different conclusion that charged the Appellant with “conduct unbecoming” for sending the January 6, 2021 tweets and recommended that the Appellant be terminated, which recommendation the new Police Commissioner adopted.

The Commission held in Abasciano’s favor:

After a five-day de novo hearing, the [Civil Service] Commission concluded that the two 2021 investigations were more objective, timely and thorough; were supported by a preponderance of the evidence; and deserve more weight than the less thorough December 2022 “paper review” which relied on erroneous facts and conclusions that were not substantiated by credible evidence. In short, the Commission allowed the Appellant’s appeal because the preponderance of the evidence confirmed the BPD’s 2021 initial findings and conclusions that the Appellant did not engage in misconduct on January 6, 2021, that there was not just cause to justify any discipline against him solely for the handful of tweets he sent from an anonymous account that day, and that the BPD had not shown, beyond speculation, that his tweets negatively impacted the BPD’s operations or public mission.

This decision does not overlook the fact that most citizens, including members of this Commission, rightly reject the Appellant’s misinformed opinions contained in his tweets about the 2020 election and its aftermath. The limited issues before the Commission, however, were: (1) whether the Appellant’s disability retirement application filed by the BPD in June 2022 and approved retroactively to his termination date divested the Commission of jurisdiction to adjudicate the just cause for the BPD’s termination decision, which the Commission decided it did not; and (2) whether, on the facts and the law, the Appellant’s tweets were constitutionally protected speech, as he claimed, or whether, when made, or after they became public, the tweets rose to the level of sanctionable misconduct that justified his termination as the BPD claimed.

The Commission’s decision finds the Appellant’s tweets to be protected speech and are not just cause for his termination. The decision is not to be construed as endorsing the substance of those misinformed opinions nor as condoning the underlying, unconscionable criminal acts committed by those who stormed the Capitol that day….

The Tweets were apparently these:

[17.] At 5:27 p.m. on January 5, 2023 [presumably means 2021 -EV], the Appellant sent a reply tweet to @realDonaldTrump @senatmajlder @johnCornyn @senJohn Thune, concerning the size of the rally: “Thousands? With Respect Mr. President I am here and it is going to be Millions by tomorrow.”

[18.] In the early morning of January 6, 2021, the Appellant received a tweet from an unknown source stating, among other things, that Gabriel Sterling, the “”Georgia ‘Republican’ Secretary of State” had “[c]aved to Stacy Abrams and eliminated meaningful signature match” and “[t]aped and leaked a phone call with [President Trump]”. The Appellant thought such reports showed that Sterling broke the law and violated his oath of office.

[19.] At 5:53 a.m. on January 6, 2021, the Appellant replied to a tweet from @GabrielSterling, in which Secretary Sterling offered an explanation for his actions, writing: “I can’t wait to see you dragged away in handcuffs.” The Appellant said this tweet used the “hyperbole of the day” to deplore Mr. Sterling’s attempt to defend his actions.

[20.] At 6:44 a.m., the Appellant tweeted:

MAGA Millions Patriots here in DC. Today is a day for choosing. Today there will be only two parties in America. Traitors and Patriots!” The Appellant added the hashtags #January6, #MAGA and #MarchForTrump”

The Appellant attached an image showing a crowd of people with the Washington Monument in the background….

[22.] At 8:14 a.m., the Appellant tweeted:

Hey @senmajlder look out your window. Millions of Patriots are at your doorstep and we are watching. It is time for choosing. Are you a traitor or are you a Patriot #MarchforTrump, #StopTheSteal and #PatriotParty.

[23.] At 9:49 a.m., the Appellant tweeted to Vice President Pence’s Twitter account:

@VP I have friends and family who do not believe you have the courage to fulfill your oath and send the illegitimate electors back to the states. Mr. VP I have faith in God you will do your duty! Stand up for America!

[24.] At 10:03 a.m., the Appellant tweeted:

“Send it back @VP”.

[25.] At 12:40 p.m., while still at the rally, the Appellant tweeted:

Everything that happens going forward @VP is now on your conscience” with the hashtags #1776Again, #MarchForTrump and #WeThePeople.

[26.] The Appellant and the fellow officer stayed at the rally listening to the speeches. When President Trump finished speaking, at approximately 1:15 p.m., they left the rally and began slowly walking to the Capitol. Since they had been close to the stage, it took them over an hour to reach a grassy area near some rotaries on the west side of the Capitol, arriving there about 3:00 pm or 3:30 p.m.

[27.] By the time of their arrival, a mob had broken into the Capitol through the east side of the building and had made its way to the doors on the west side. The House and Senate had gone into recess and the building was in lockdown.

[28.] At 3:54 p.m., the Appellant tweeted:

I hope you never sleep well again @VP your Treasonous Act lead [sic] to the murder of an innocent girl and the death of America. You are not a Godly man. I guess @LLinWood was right about you all along….

[31.] At 5:22 p.m., while on the road home, the Appellant tweeted:

What I saw in [sic] today frankly made me weep for our once great nation. The Political Elitist Class has successfully turned Americans against each other. Patriots and Law Enforcement trying to do their jobs in a no win [sic] position. I fear this Treasonous election has killed the republic….

And here’s part of the Commission’s First Amendment analysis:

BPD Rules 102, Section 30 expressly acknowledges the right of all BPD members to participate in public affairs, including, specifically to “[e]xpress opinions as private individuals on political issues” and “attend political conventions, rallies and similar political gatherings as private individuals.” In addition, as a matter of law, “basic merit principles” of civil service law include a requirement to assure “fair treatment of all applicants and employees in all aspects of personnel administration without regard to political affiliation … and with proper regard for privacy, basic rights outlined in this chapter and constitutional rights as citizens.”

Thus, in almost all circumstances, political speech and conduct that is protected by the U.S. Constitution and the Massachusetts Declaration of Rights cannot be used as the basis for discipline of a tenured employee. Put another way, the BPD may not discipline a tenured police officer under any other BPD Rule for engaging in political speech or conduct to the extent that the speech or conduct falls squarely within the employee’s interest in freedom of speech recognized by BPD Rule 102 Section 30, and his constitutional rights and statutory protection provided under basic merit principles of civil service law.

However, a public employee’s rights are not absolute, and they must accept certain limitations on freedom of speech. To determine where those limitations exist, Massachusetts law generally follows the federal law in matters of protected public speech and, accordingly, employs a three-prong framework. Pereira v. Comm’r of Soc. Servs. (Mass. 2000), citing Pickering v. Bd. of Ed. (1968).

First, it must be determined whether the employee was speaking “as a citizen upon matters of public concern” when making the statements at issue. If so, the second prong, known as the Pickering balancing test, requires “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In performing that balance, the question becomes “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” The third prong requires the employee to provide “sufficient evidence” that the protected speech was “a substantial or motivating factor” in the adverse employment decision. If the employee satisfies that initial burden, the burden of persuasion shifts to the employer to prove that “it would have taken the same action regardless of the protected speech.” …

The issue before the Commission on the merits of this appeal is whether tweets sent by the Appellant on January 6, 2021 are protected speech or constituted misconduct that justified his termination. The uncontroverted evidence established that the Appellant’s tweets satisfy the first and third prongs of the Pereira framework, i.e.: (a) the Appellant’s tweets were sent as a private citizen, while off duty on FMLA leave, using an anonymous handle from a Twitter account that did not identify the Appellant as a police officer; and (b) the BPD’s decision to terminate the Appellant is grounded explicitly on the tweets he sent. Thus, the only disputed issue here arises under the second prong of the Pickering balancing test, i.e., whether, on balance, the Appellant’s tweets are constitutionally protected private free speech or may be restricted by the BPD as qualified speech because they have been adequately shown to adversely affect the BPD’s operations or mission.

After careful consideration of the entire record, I am persuaded by the preponderance of evidence that, applying the Pickering balancing test: (1) the Appellant’s tweets are private political speech on matters of public concern that fit within the scope of BPD Rule 102, Section 30 and (2) the BPD has not established an adequate justification to restrict that speech in the interest of protecting the BPD’s mission or operations. Therefore, the tweets cannot be sanctioned as “conduct unbecoming” under BPD Rule 102, Section 3 or as a violation of the BPD’s Canon of Ethics under Rule 113, Canon 8.

This decision should not be construed to condone or turn a blind eye to the unconscionable criminal acts committed by those who stormed the Capitol on January 6, 2021. To be sure, January 6, 2021 was a dark day in American history. Most Americans watched in disbelief as some so-called “protestors” turned violent and assaulted Capitol police officers who fought valiantly to protect the Vice President, members of Congress, their staffs and family members. In my view, no amount of revisionism can change those facts.

Thus, I do not doubt that the BPD was understandably concerned to learn that two BPD Police Officers had attended the rally and that the Appellant had tweeted about it. The BPD’s ACD (criminal) investigation and an IAD internal affairs (rules and regulations) investigation into the Appellant’s actions that day were entirely appropriate, including a forensic reconstruction of where he went and review of all 2500 tweets received by and sent from the Appellant’s anonymous Twitter account. However, at the conclusion of those investigations, which spanned several months, the highest members of the BPD’s management and command staff cleared the Appellant of any wrongdoing based on the findings of these two investigations. [Further arguments based on the different results of the two investigations omitted. -EV] …

[A]s one part of the Pickering balancing test, the intensity of inflammatory and insulting speech can be factored into account in considering the weight to be given to the Appellant’s interest to speak freely…. The other factor in the Pickering balancing test is whether the offensive speech bears a nexus, based on evidence, to some negative effect on the operations of the BPD. While evaluating the government’s interest, the law considers “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”

Here, no credible evidence was presented to establish that the Appellant’s tweets caused any internal disruption in the BPD’s operations. Thus, this case lacks any similarity to other cases that have come before the Commission in which the problematic speech makes unambiguously false, racist, scurrilous, or otherwise reprehensible claims against the public employer or its employees.

Rather, the BPD argues that the Appellant’s tweets threatened the BPD’s functions because his (misinformed) political view that the 2020 election was stolen could have jeopardized public trust in the Department by the great majority of Bostonians who disagreed with that allegation. Government employers, especially public safety employers, must have “wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” The Court must give “substantial weight to government employers’ reasonable predictions of disruption” and gives “greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large.”

Still, the BPD’s judgment must be based on some evidence and cannot rely on speculation alone to justify its actions…. Here, most of the Appellant’s tweets about the January 6, 2021 rally (see Finding nos. 17, 19, 20, 22, 23, 24 & 25) were sent before he left the rally to walk to the Capitol grounds, and before he had any notice whatsoever that the rally had turned violent. These tweets focused entirely on the Appellant’s political objective of promoting the rally and exhorting elected officials (the Congress and the Vice President) to honor there oath of office and “choose” what the Appellant was calling the patriotic path—sending disputed electoral votes back to the states. These particular tweets (albeit controversial, and, in the view of many, patently wrongheaded) are not directed at the BPD or its employees and do not involve any racial or otherwise vulgar, profane or obscene subject matter. They are classic examples of protected political speech.

One of these tweets (Finding Nos. 19) and two others sent by the Appellant after arriving at the Capitol (Findings 28 & 30) are closer calls and could be construed to deserve heightened scrutiny under the Pickering balancing test. To be sure, some of the language in these tweets is particularly harsh—i.e., accusing Vice President Pence of and the “Political Elitest Class” of treason that led to the “murder of an innocent girl” and has “killed the republic”. However, these tweets also expressed a theme similar to his earlier tweets: what the Appellant considered betrayal by elected officials whom the Appellant (erroneously) was misled into believing had violated their oaths of office. They do not express animosity toward any members of the BPD or any individual, group or class of Boston citizens or officials.

Finding No. 19—The 5:53 a.m. tweet on January 6, 2021 responding to the Georgia Secretary of State: “I can’t wait to see you dragged away in handcuffs.”

Finding No. 28—The 3:54 p.m. tweet to Vice President Pence: “I hope you never sleep well again @VP your Treasonous Act lead [sic] to the murder of an innocent girl and the death of America. You are not a Godly man. I guess @LLinWood was right about you all along”

Finding No. 31—The 5:22 p.m. tweet, while on the road home: “What I saw in [sic] today frankly made me weep for our once great nation. The Political Elitist Class has successfully turned Americans against each other. Patriots and Law Enforcement trying to do their jobs in a no win [ [sic] position. I fear this Treasonous election has killed the republic.

This scenario is inapposite to those cases in which a public employer established the requisite actual or reasonable expectation of a loss of the public trust required to override an employee’s right freedom of expression. Those cases of “external” disruption that have met the Pickering balancing test have involved government employees who publicly express racist bias or sexually deviant behavior, not pure political speech. Despite extensive research, I found no comparable example in which just cause was found to discipline a police officer or other public employee for expressing unpopular political opinions of the kind or tone involved here.

In sum, the BPD failed to meet their burden of producing evidence to prove that any BPD personnel, Boston employees, or members of the public (save for the Appellant’s one nemesis) protested any of the Appellant’s tweets, including the three more severely critical ones singled out above, or voiced any complaints about him. The BPD’s own command staff took different views about the risk of disruption that these tweets had on the BPD’s ability to fulfil its public mission. Those who knew the Appellant professionally provided credible evidence of his ability to keep his politics from having any influence on his ability and duty to do his job as a BPD police officer. Neither Deputy Superintendent Crispin nor Captain Martin saw the Appellant’s tweets as conduct unbecoming. Hearty disagreement by those in positions of authority can generally form no basis for employment discipline. It becomes a slippery slope when personal political differences, consciously or unconsciously, begin to influence decisions about employees’ professional careers and capabilities in the workplace….

The remedy in this appeal must be designed to reflect the unique circumstances involved. In particular, the Appellant has not performed the duties of a police officer since July 2020. He is currently totally disabled from performing those duties. Prior to March 13, 2023, he had been on injured leave and receiving 111F benefits, which equal payment of base salary substantially tax-free, and, as he is now retired, he would not be eligible to receive such benefits after March 13, 2023.

Moreover, the Appellant has been receiving accidental disability retirement benefits pursuant to G.L. c. 32, § 7, effective March 13, 2024, which are 72% of his base salary, also substantially tax free, and are at least equivalent to or better than the base salary he would earn as a full-duty BPD police officer…..

Mark P. Gagliardi represents Abasciano.

The post Boston Police Officer’s Tweets from “Stop the Steal” Rally Protected by First Amendment Against Government Employer Retaliation appeared first on Reason.com.

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