Corrections Officer’s Web Postings Not Protected By First Amendment

Joseph Curran was hired by the Essex County, Massachusetts Sheriff’s Department as a corrections officer in 1991, and was represented by the Essex County Correctional Officers Association. The Association and Frank Cousins, the Sheriff of Essex County, had an extremely contentious relationship.

In 2005, Cousins suspended Curran for 30 days for making threatening remarks to a captain in the course of a discussion about Curran’s use of sick leave. Within days, Curran had posted an angry message on the bulletin board portion of a web site maintained by the Association.

The bulletin board had earlier hosted threatening and racist messages by others directed toward Cousins, who is African-American. One posting included a picture superimposing crosshairs on the face of the Sheriff with the caption stating “Pull the trigger on the NIGGER!!!” Another posting referred to the Sheriff as a “pimp” and his subordinates as “whores.” Another posting referred to a Department employee as a “house slave” and the Sheriff as a “master who thinks he’s white because he lives in Whiteville.” In a posting responding to a question of whether there was anyone able to help address alleged disparities in discipline, the author responded, “Yeah, there is someone who can help, but James Earl Ray is dead.”

Shortly after his 30-day suspension, Curran, who was a veteran of aggressive posts on the web page, posted the following message: “I wonder what it will take before one of the administrators gets the balls to stand up to the Sheriff and do the right thing. How can a man allow all the evil that is unfairly done to their people. I would think that out of the 320 administrators there would be one that had an ounce of integrity.

“A totally unrelated history lesson (don’t want to get into trouble again). During World War II, Adolph Hitler (whose motto was ‘Have no pity! Act brutally.’), generals were deathly afraid of him, followed orders regardless of how immoral/wrong the orders were. Near the end, some of the generals realized just how wrong the orders were and started to plot against him knowing the end was inevitable. Well you know how the story ended. My point is that the right thing is not always the easy thing.”

When Cousins fired Curran based upon the most recent posting, Curran responded with a lawsuit alleging that his posting on the bulletin board was protected by the First Amendment. The federal First Circuit Court of Appeals sided with Cousins, and upheld Curran’s discharge.

Curran’s primary argument was that the First Amendment is designed to protect even “robust and offensive speech,” citing a series of Supreme Court decisions to that effect. Curran contended that no one could have reasonably taken his speech as being either disruptive or threatening in the workplace; in essence, Curran contended that the Department overreacted to his speech.

The Court disagreed, finding that “the substantial risk of disruption to the Department is apparent from the text of speech and the escalation of Curran’s speech. Significant weight is given to the employer’s reasonable predictions of disruption, even when the speech involved is on a matter of public concern. There is little question in this case that the Department’s concerns about disruption were reasonable. The statements here directly went to impairing discipline by superiors, disrupting harmony and creating friction in working relationships, undermining confidence in the administration, invoking oppositional personal loyalties, and interfering with the regular operation of the enterprise.”

Curran v. Cousins, 2007 WL 4247791 (1st Cir. 2007).

This article appears in the February 2008 issue