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Briefings: Judge Spikes Free Speech Violation from Moss Lawsuit…

UPDATED 5/15/23 11:11PM: To include comment from the lawyer for Moss.

Darryl Moss

The court answers all prayers (for relief), but on the free speech claim, the answer to Moss was “No.” (WMP&I)

Taking far less time than another judge did on a similar motion last year, Hampden Superior Court Judge James Manitsas has already decided the fate of a claim that lawyers for Mayor Domenic Sarno and his former aide Darryl Moss did battle over on Tuesday. The court dismissed the claim that Sarno violated Moss’s First Amendment rights in a decision posted Friday, although ostensibly filed Wednesday.

Moss lost his job over a Facebook post responding to a Donald Trump comment. The post included the phrase “grab the rifles,” a direct reference to a TV show. Last year, Moss sued his former boss and the city for employment discrimination. However, he included a bevy of other claims, some of which a court struck last year. He had leave to refile the free speech violation but now it appears gone for good.

“Given the clear lack of factual allegations in the amended complaint of threats, intimidation or coercion by Sarno, the Motion to Dismiss Count 5, brought on behalf of Domenic Sarno, shall be allowed,” Manitsas wrote.

The First Amendment claim was the fifth claim Moss brought in his amended complaint filed on February 3 against both Sarno and the city itself. There were also three employment discrimination complaints and a negligence complaint related to the investigation of Moss’s Facebook post. These were in Moss’s original and amended complaints and can now proceed.

There had been a First Amendment claim against the city, which Manitsas also dismissed. However, at Tuesday’s hearing, lawyers for both sides had already agreed that the Massachusetts Civil Rights Act (“MCRA”) did not apply to municipal corporations as Springfield is.

Lawyers for neither the city nor Moss immediately replied to a request for comment. However, after this post was published, Moss’s lawyer, Robert Johnson, said they were considering their options. As discovery had not been exchanged yet, Johnson emailed, they were weighing whether to add a party from the police department to revive the First Amendment claim or proceed with discovery and make changes later.

As a practical matter, it is not clear how significant the First Amendment claim is to Moss’s overall case. The issue does carry some symbolic weight, though. The claim let Moss frame the suit a challenge to the city’s controversial social media policy. Moss’s comment came amid George Floyd protests and, his lawyer argued in court, Springfield’s own history of police misconduct. The social media policy could become a weapon to clamp down on employees’ right to speak on matters of public concern.

Shutting down free speech also plays well in the court of public opinion even if other claims are stronger. When the Walt Disney Co. sued Florida’s governor over the latter’s move on Disneyworld because the company critiqued the so-called “Don’t Say ‘Gay'” law the press immediately gravitated toward the First Amendment claim. While Disney plead that claim convincingly, by far, the strongest claim was Florida’s violation of the far less sexy contract clause.

Judge James Manitsas

Judge Manitsas appearing before the Governor’s Council in 2021 as a nominee to the bench. (via YouTube/Governor’s Council)

Manitsas did not meditate on the defense of Moss’s claim very much. The three-page decision largely adopts the line Sarno’s lawyer, Patricia Rapinchuk, took in court. Moss had not, in his amended complaint, pointed to any threats, intimidation or coercion that could sustain an MCRA claim. Echoing Rapinchuk, the court found that if any MCRA claim existed, it was against now-Police Superintendent Cheryl Clapprood. She is not a party to the suit.

Johnson, Moss’s lawyer, urged the judge to consider the context and that the termination itself was an actionable violation. Manitsas addressed none of this in his opinion. Rather, the judge only invoked Johnson to refer to his admission Sarno had failed to act stop the investigation. The implication being failure to act does not fall under the MCRA either.

With the complaint closed now, the city has a few weeks to officially answer Moss’s complaint. It can request extensions. As is typical in these cases, both Sarno and the city will likely deny the wrongdoing in Moss’s allegations. However, this also means discovery can commence—if it has not already. The defenses the mayor and city raise could offer further clues about their strategies moving forward.