First Circuit Will Consider, En Banc, Important Questions About Government Employee Speech

From today's order granting rehearing en banc in Hussey v. City of Cambridge:

The majority panel opinion relied on First Circuit precedent for the proposition that "speech commenting on public 'issues in a mocking, derogatory, and disparaging manner' is accorded less weight in the [Pickering] balancing test." Hussey v. City of Cambridge, No. 24-1279, Slip Op. (Aug. 15, 2025), at 16 (quoting MacRae v. Mattos, 106 F.4th 122, 137 (1st Cir. 2024), and also citing Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) ("Speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance.")).

1. Is this precedent consistent with the Supreme Court's First Amendment jurisprudence, including but not limited to Rankin v. McPherson, 483 U.S. 378 (1987), and Connick v. [Myers], 461 U.S. 138 (1983)? Please address the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern, and—in doing so—please discuss how the consideration of "manner, time, and place" in the Pickering balance bears on that question. Finally, please address whether the propriety of giving less weight to "mocking, derogatory, and disparaging" speech on matters of public concern depends on whether the speech occurred within the workplace or outside the workplace.
2. Is there a more suitable approach, also consistent with First Amendment jurisprudence, for balancing the First Amendment right of a public employee to speak on a matter of public concern against the needs of the public employer?
3. How would any proposed change in approach affect the analysis and outcome in this case? Please also discuss whether, and how, the Pickering balancing would differ under such an approach for speech by a public employee holding a different employment position or rank than appellant Hussey.
4. If the proper Pickering inquiry considers whether the speech at issue disrupted the workplace without reducing the employee's interest in the speech, is it necessary to remand the case to the District Court? Or did the District Court already make a finding on that score?