The U.S. Court of Appeals for the First Circuit granted en banc review Tuesday in *Hussey v. City of Cambridge*, a case that examines First Amendment protections for public employee speech, particularly when that speech is mocking or derogatory toward public issues.

The court's order, entered Jan. 28, withdrew a panel opinion issued Aug. 15, 2025, and vacated the judgment entered the same date. En banc review, where all active judges hear a case rather than a three-judge panel, is rarely granted and typically reserved for cases of exceptional importance or when circuit precedent needs clarification.

Brian Hussey brought the lawsuit against the City of Cambridge, Police Commissioner Christine Elow in her official capacity, and Officer Branville G. Bard Jr. in his individual capacity. The case appears to involve questions about whether and how public employees' speech rights are protected when their comments about public issues take a mocking or disparaging tone.

According to the court's order, the withdrawn panel opinion had relied on First Circuit precedent establishing that "speech commenting on public 'issues in a mocking, derogatory, and disparaging manner' is accorded less weight in the [Pickering] balancing test." The panel cited *MacRae v. Mattos* (1st Cir. 2024) and *Curran v. Cousins* as support for this proposition.

The *Pickering* balancing test, established by the Supreme Court in *Pickering v. Board of Education* (1968), weighs a public employee's First Amendment speech rights against the government employer's interest in maintaining workplace efficiency and order. Courts apply this test to determine when government employers can discipline employees for their speech.

The First Circuit's decision to grant en banc review suggests the panel's application of this precedent may have been problematic or that the circuit's approach to evaluating derogatory public employee speech needs clarification. The court specifically directed parties to file supplemental briefs addressing questions about how mocking or disparaging speech should be weighted in First Amendment analysis.

The order indicates the full court will review previously filed briefs from the parties, but wants additional briefing on the specific legal questions that prompted en banc consideration. The parties must file simultaneous supplemental briefs addressing the court's questions about speech categorization and constitutional balancing, as well as any other issues they wish to raise.

Public employee speech cases often involve tension between First Amendment protections and legitimate government interests in maintaining workplace order. The Supreme Court has established that public employees do not surrender all constitutional rights when they accept government employment, but employers retain authority to regulate speech that disrupts operations or undermines public confidence in government services.

The specific legal question appears to center on whether courts should give less constitutional protection to public employee speech simply because it takes a mocking or derogatory tone when addressing matters of public concern. This distinction could significantly impact how courts evaluate workplace discipline cases involving social media posts, public comments, or other forms of employee expression.

First Amendment scholars and employment lawyers will likely watch this case closely, as the outcome could affect how government employers across the circuit handle employee speech issues. The case may also provide guidance for other circuits grappling with similar questions about the constitutional protection afforded to different types of public employee expression.

The en banc court includes Chief Judge David Barron and Circuit Judges Juan Torruella, William Kayatta Jr., Sandra Lynch, Jeffrey Howard, O. Rogeriee Thompson, David Kayatta, and others. The specific composition of judges hearing the case was not detailed in the order.

The parties now must prepare supplemental briefing addressing the court's specific questions about how derogatory speech factors into constitutional analysis. The court has not yet scheduled oral arguments for the en banc hearing, which typically occurs several months after briefing is complete.

This case represents one of the relatively few times each year that the First Circuit grants en banc review, underscoring the legal significance of the questions presented. The ultimate decision could establish clearer precedent for how courts should evaluate public employee speech cases when the expression involves criticism or mockery of public issues or government operations.