43 F.4th 966
9th Cir.2022Background
- Phoenix Police Department adopted Operations Order 3.27 (Social Media Use Policy) in 2013, regulating on- and off-duty social media and warning personal posts may reflect on the Department.
- Sgt. Juan Hernandez posted four items on his personal, publicly viewable Facebook between 2013–2014 that denigrated Muslims/Islam; he did not explicitly identify himself as a Phoenix officer but had other posts showing him in uniform.
- In 2019 the Plain View Project publicized many Phoenix officers’ posts; the Department investigated Hernandez and concluded the four posts violated §3.27.9.B.(6), exposing him to discipline up to termination.
- Hernandez (with AZCOPS and another officer) sued under §1983 alleging First Amendment retaliation and facial vagueness/overbreadth of the policy; the district court dismissed the retaliation claim (no public concern) and rejected most overbreadth claims but allowed a vagueness challenge to proceed and later granted summary judgment for defendants on vagueness.
- The Ninth Circuit reversed the dismissal of the retaliation claim (holding Hernandez’s posts addressed matters of public concern) and remanded for Pickering balancing; it affirmed rejection of most facial overbreadth arguments but allowed overbreadth challenges to the “embarrass/discredit” clause and the blanket prohibition on divulging any information gained on duty to survive the motion-to-dismiss; it affirmed the district court’s ruling that the policy is not facially vague.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hernandez’s Facebook posts concerned a matter of public concern | Hernandez: posts addressed public issues (government spending, media coverage, cultural assimilation) | City: posts were private, offensive, not public- concern speech | Held: Posts qualify as matters of public concern; dismissal of retaliation claim reversed and remanded for further factual development |
| Whether the Department can justify disciplining an officer for such speech (Pickering balancing) | Hernandez: speech’s low First Amendment value and context weigh against discipline | City: legitimate employer interests (mission, public trust, working relationships) justify restrictions on officer speech | Held: Not resolved on pleadings—remanded to develop factual record for Pickering balancing (employer bears burden) |
| Facial overbreadth of clauses banning speech that is “detrimental to the mission,” undermines respect/public confidence, or undermines goals/mission | Plaintiffs: clauses are overbroad and could chill protected speech | City: clauses track constitutionally permissible interests in efficiency, mission, and public trust | Held: Rejected—these clauses are largely permissible and not facially overbroad |
| Facial overbreadth/vagueness of (a) clauses prohibiting speech that would “cause embarrassment” or “discredit” the Department and (b) prohibition on divulging any information gained while on duty | Plaintiffs: clauses are unconstitutionally broad and vague, chilling protected disclosures (including wrongdoing) | City: clauses protect Department reputation and confidential information | Held: Overbreadth challenges to the “embarrass/discredit” and the blanket ‘‘divulge any information gained on duty’’ clauses survive the motion-to-dismiss (must be developed further); court affirmed district court’s later judgment that the policy is not facially vague in most applications |
Key Cases Cited
- Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968) (established balancing test for public employee speech)
- Connick v. Myers, 461 U.S. 138 (1983) (public-concern threshold and distinction from private workplace grievances)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech pursuant to official duties not protected)
- Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) (causation/mixed-motive framework in public-employee claims)
- Rankin v. McPherson, 483 U.S. 378 (1987) (employer’s interest in discipline when speech impairs operations or working relationships)
- City of San Diego v. Roe, 543 U.S. 77 (2004) (limits on protection for certain private/off-duty employee speech)
- United States v. National Treasury Employees Union, 513 U.S. 454 (1995) (modified Pickering test for prospective speech restrictions)
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth standard: substantial number of unconstitutional applications)
- Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (five-step framework for public-employee retaliation claims)
- Moonin v. Tice, 868 F.3d 853 (9th Cir. 2017) (government must tailor policies restricting disclosure of law-enforcement information)
- Snyder v. Phelps, 562 U.S. 443 (2011) (even offensive/hateful speech can involve matters of public concern)