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