John Roe v. City of San Diego San Diego City Police Department David Bejarano George Saldamando Glenn Breitenstein

of fraudulent identifica- possession was in ROE, Plaintiff-Appellant, John acting well within their thus

tion and were authority Terry. under DIEGO; Diego City to the brandish- unrelated

That this was OF SAN CITY Department; Bejarano; initially prompted stop David charge that Police ing George Saldamando; Breiten Glenn consequence no here. United is of stein, Defendants-Appellees. Torres-Sanchez, F.3d 1123 States (9th Cir.1996), were the sub- defendants No. 02-55164. but, stop once the officer

jects of a traffic Appeals, United States Court nervous behavior and lis- their observed Ninth Circuit. stories, pur- he their inconsistent tened to Argued and Submitted Feb. questioning a line of unrelated sued held that this was rea- original stop. We Filed Jan. to dis-

sonable because defendants “failed illegal activity ...

pel suspicions about 1128;

actually created new ones.” Id. at (officers Head,

see also during

can continue to detain defendant suspicions

investigatory stop when their heightened

are in order to confirm or dis-

pel suspicions). these As with the defen- Torres-Sanchez,

dants the officers’ sus-

picions that had Christian brandished

gun dispelled during stop, were not suspicions

and new were aroused about his

identity. these Under conditions

heightened suspicion, it was reasonable pressing

the officers to continue Christian proof identity. true that, finally

3. Christian claims if police

even did not their exceed

authority Terry, under his consent involuntary.

search his car nonetheless district “no court found indication that consent to search his vehicle

[Christian’s] involuntary,”

was coerced or otherwise

that he led the officers to his vehicle and

gave Though them false identification. contrary testimony,

Christian offered

district court was entitled to believe the

officers.

AFFIRMED. Baranic, Gattey Cooney &

Michael P. CA, LLP, Diego, Baranic San Plaintiff-Appellant. Castleman, City Attor-

Penny Deputy L. A, Diego, for the Defendants- ney, San Appellees. NELSON, WARDLAW

Before: D.W. FISHER, Judges. Circuit FISHER; by Dissent Opinion Judge Judge WARDLAW.

FISHER, Judge. Circuit Roe,1 while a Plaintiff-Appellant John officer, videotaped him- Diego police pseudonym pur- permission to do so. proceeding under a granting order him suant to a district court July sequence of events. officer’s generic police aoff stripping self Dare, Sergeant Robert supervisor, in acts of masturba- engaging uniform and located a tan uniform eBay and videos searched these home-made offered tion. He Diego the San Police formerly used adults-only section for sale on using a The was offered eBay, Department. site uniform auction online popular eBay Northern California with username by person and a sale fictitious name “Code3stud@aol.com.” not re- the videos did Although address. Diego with San connection veal his eBay for other items Sgt. Dare searched (the “Department”), Department Police discov- by and offered for sale Code3stud super- when one unmasked Roe was eBay’s items there were ered and online the videos discovered visors adults-only complying After with section. Depart- picture. The Roe’s recognized Sgt. Dare en- eBay’s requirements, access Roe, readily admit- who confronted and adults-only section viewed tered the videos, and selling and making ted by offered listings for the items the De- eventually fired him. Roe sued listings contained Some Code3stud. Diego and his of San partment, recog- Dare picture, Sgt. and Code3stud’s district court under in federal supervisors man as Roe. pictured nized the his off- alleging § 42 U.S.C. out of the list- Sgt. printed Dare some pro- activities were duty, non-work-related supervi- other ings and shared them with could by the and tected First Amendment command, including in Roe’s chain sors grounds terminating employ- his not be Capt. Breit- Captain Glenn Breitenstein. Roe’s ment. The district dismissed court Pro- Department’s contacted the enstein claim, the videos did not concluding that (“PSU”), which fessional Standards Unit concern,” and address matter activity into Roe’s began investigation an not violate Roe’s Department thus the did 21, 2000, an eBay. July On undercover him. rights firing constitutional We Clark, Alan investigator, Sergeant PSU erred, and that the district court conclude purchased two items from Code3stud: a proceed- for further

reverse and remand videotape pair of white men’s briefs and ings. depicting engaging Roe masturbation. I. AND Clark, FACTUAL PROCEDURAL again September acting On Sgt.

BACKGROUND2 undercover, produce asked Code3stud videotape depicting custom-made City employed Roe as a San was issuing man a citation Code3stud another than seven Diego police officer for more masturbating. then Code3stud years. Diego after the San He was fired agreed, produced video and sold that he Department Police discovered was Sgt. Clark. selling sexually explicit, non-obscene vid- eBay. The adults-only eos on the section of aspects production All of the and sale of alone, par- his face depict videos Roe with while videotapes conducted were masked, tially taking generic police off a off-duty away employer’s from his masturbating. uniform and the use premises and did not involve any City Department resources. None Department aware of Roe’s became following of the items Roe for sale identified eBay through activities on offered light be construed in the most before the court on true must 2. Because this case comes Agencyv. Si- appeal pursuant to Federal favorable to him. Transmission from a dismissal Co., 12(b)(6), all facts al- erra Pac. Power Rule of Civil Procedure Cir.2002). leged complaint in Roe's must be taken as

mi City Depart- disciplinary and recommended action. Af- Roe as affiliated, them being providing ment or as with ter Roe with notice and a hear- himself any way. He never identified ing, Department terminated Roe’s em- listing, sale or and he never name ployment on June 2001 for violation of Diego as a Police identified himself all Department policies. four There is no eBay himself his officer. He described job in the per- evidence record living in “Northern Cali- profile seller’s unsatisfactory; formance was final per- being “in the field of en- fornia” and law evaluation, covering January formance 7 to payments He directed all forcement.” 27, 2001, April expec- indicates he met Shatswell,” name, uti- a fictitious “S. tations and received one letter of commen- post lized a office box address Northern dation. There is no evidence California. 28, 2001, September brought On Roe identity real was ever discov- Code3stud’s 1983, § alleging suit under U.S.C. Sgt. by anyone ered other than Dare and principally he was terminated in the police the other officers involved tent of his in violation videos of his consti- investigation. right tutional speech.3 to freedom of Roe 2000, 17, Sgt. Clark inter- On October City Department, sued the and the as well person viewed Roe about his sale Bejarano, as Chief Police David Assis- eBay. readily clothing videos and on George tant Chief of Police Saldamando off-duty Sgt. conduct. admitted to the Capt. and Breitenstein their official and investigation his on No- completed Clark capacities. pay individual Roe seeks back and concluded that Roe had vember 30 interest, compensatory punitive with Department policies: Policy three violated damages, injunction reinstatement and an Conduct, Unbecoming Policy 9.07— 9.06— City Department from prohibiting Conduct, Policy Immoral 5.12—Out- taking punitive against further actions 20, 2000, Employment. side On December him. ordered Roe “to cease Capt. Breitenstein 16, 2001, On November the defendants manufacturing, distributing or displaying, complaint moved to dismiss Roe’s under any selling sexually explicit materials 12(b)(6) Federal Rule Civil Procedure behaviors, any via the engaging similar for failure to state a claim. The district internet, Mail, commercial vendors granted court the motion on December distributors, avail- other medium it determined that Roe’s 2001 because public.” able to the did not touch on a matter of all had Roe removed items he listed timely concern.” Roe filed a notice of his eBay change sale on but did not seller’s 18, 2002, challenging appeal January which described the first two vid- profile, of his First Amendment the dismissal and listed their produced eos he had claim. price for a custom- prices, as well as 13, 2001, February Sgt.

made video. On II. STANDARD OF REVIEW report concluding Dare submitted a claim Dismissals for failure to state Pol- Department Roe had a fourth violated 12(b)(6) de novo. Orders— under Rule are reviewed icy 9 .04—Obedience to Lawful alleged court the state 3. Roe that his termination violat- without merit. The dismissed also prejudice right process “without if Plaintiff ed his constitutional to due law claims appeal, rights chooses to refile in state court.” On under state law. The district court challenge preju- the dismissal of his process with Roe does not dismissed the due claim process law claims. conceded that his claim was due and state dice after Roe Oakland, of Educ., 391 U.S. by Pickering v. Bd. 255 F.3d City Zimmerman Cir.2001). (1968), (9th accept must 20 L.Ed.2d 811 We of fact allegations administrative well-pleaded legitimate employer’s as true all them in the and construe complaint employee’s First outweigh in the interests Id. plaintiff. that, favorable light most rights or under Amendment to state a claim is for failure “Dismissal by Mt. analysis motive established mixed beyond doubt appears if it appropriate Educ. v. Dist. Bd. Healthy Sch. no set of facts prove can plaintiff 274, 287, 97 Doyle, 429 U.S. would entitle his claim which support (1977), employer would L.Ed.2d (internal quotation him to relief.” decision even in the reached the same have omitted). Whether marks con employee’s protected absence of a matter of speech is employee’s County v. Um duct. Bd. Comm’rs of law that we review question is a 668, 675-76, behr, Davis, Nunez de novo. Ulrich, (1996); 135 L.Ed.2d 843 Cir.1999). 1226 n. 1 at 976-77. Only the first element III. DISCUSSION concern prima facie case—the facie prima In to state a order court test —is at issue here. district employer for against government claim case because it ruled that dismissed Roe’s Speech of the Free Clause of violation not touch on a matter of speech his did Amendment, must employee “an First Although there is a “public concern.” (1) engaged protect that he or she show well-developed jurisprudence constitutional (2) took speech; employer that ed meaning con- that addresses the (3) action’; employment ‘adverse cern,” typically fo- jurisprudence has or speech or her was a ‘substantial his place that takes employee speech cused on employ motivating’ factor for the adverse policies or that addresses the work Salem, action.” Coszalter v. Here, government employer. we deal 968, Cir.2003); see also 973 and sold out- Francisco, with videos that were made City County v. & Ulrich (9th Cir.2002). workplace nothing and said about side the 968, A 976 agency. employer any government protected only if the employee’s speech is upon “as a citizen mat We therefore must decide whether such employee speaks off-duty, speech concern” rather than “as an receives ters of non-work-related only personal employee upon matters under the con- qualified protection 138, Myers, v. 461 U.S. interest.” Connick cern test.4 (1983). 147, 1684, 75 L.Ed.2d 708 103 S.Ct. court to confront We are the first question. States v. Nation- this United pri- has made a Once the (“NTEU ”), Treasury Employees al Union claim, shifts to the ma facie the burden 1003, 513 U.S. 115 S.Ct. 130 L.Ed.2d either public employer to demonstrate (1995), that, Court held that balancing test established 964 under contrary, they speech Department. On the have 4. The dissent contends that Roe's job.” "plainly to his Post at 1126. related ceded that this case involves unrelated However, argued defendants have not job: correctly [the] "Roe states that any way related to his Roe’s the exact Ninth Circuit has never addressed Diego Police De- with the San conduct, duty which we have here—off issue City, they argue partment nor do Appel- Responding Br. of unrelated to work." offering formerly by the a uniform used sell added). (emphasis at 28 lees videos to the SDPD somehow linked Roe’s

1113 matter, ‘the Amend “expressive general activi- “as a First employees’ government to a au- government pow that “were addressed ment means that has no ties” dience, workplace, made outside expression were er to restrict because of its unrelated to largely content ideas, matter, and involved message, subject its its ” fell “within employment” government their content,’ Bolger Youngs Drug v. of citizen comment category protected 60, 65, Corp., Prods. 463 U.S. rather than on matters (1983), 2875, 77 L.Ed.2d 469 some kinds of related to on matters employee comment at all from receive no workplace.” in the status personal categories intrusion. The Similarly, Roe’s ex- pornogra include unprotected child may they crude as pressive activities—as Ferber, phy, New York v. 458 U.S. “segment[ at a ] directed appear —were 102 73 L.Ed.2d 1113 S.Ct. “any not have general public” did (1982); incitement, Brandenburg imminent Id. at employment.” to [his] relevance Ohio, 444, 447, v. 395 89 U.S. S.Ct. explain 115 1003. As we S.Ct. (1969); threats, 23 L.Ed.2d 430 true Watts below, we therefore hold greater detail States, 705, 707-08, 394 89 United U.S. expressive conduct falls within that Roe’s (1969) (per S.Ct. L.Ed.2d category of citizen comment curiam); States, obscenity, Roth v. United concern, rather than on matters 476, 483-85, U.S. on matters related to employee comment (1957); libel, L.Ed.2d Beauharnais v. workplace. status in the personal Illinois, 250, 266, Amendment Consequently, First (1952); words, fighting L.Ed. 919 resolved under claim must be Chaplinsky Hampshire, New in balancing by weighing the free 568, 572-73, 766, 62 S.Ct. 86 L.Ed. 1031 against Department’s at stake terests (1942). employer pro as an legitimate interests realm of ex Within broad efficiency of the services moting the de pression, the level varies 466, 115 1003; at performs. See id. S.Ct. subject pending on the matter of the Umbehr, 676, at 518 U.S. speech. Supreme Court “has fre can Alternatively, Department prevail that on quently reaffirmed Healthy’s analy under Mt. mixed motive occupies ‘highest rung of the issues by if prove preponderance sis it can values,’ and hierarchy of First Amendment that it would have terminated the evidence Connick, special protection.” is entitled to Mt. regardless speech. See 145, (quoting 461 U.S. at 103 S.Ct. 1684 287, 568; 97 Healthy, 429 U.S. S.Ct. Co., Hardware 458 NAACP v. Claiborne Umbehr, 685, 116 518 U.S. S.Ct. 886, 913, 3409, L.Ed.2d 102 73 U.S. S.Ct. the district court did not reach Because Broion, (1982), citing Carey v. 1215 Pickering balancing test or the Mt. 2286, 455, 467, 100 S.Ct. 65 447 U.S. Healthy analysis, mixed motive we remand (1980)); see also First Nat'l L.Ed.2d 263 district court for further the case to the Bellotti, 765, 776, 98 v. 435 U.S. Bank proceedings. (1978) 1407, (noting 55 L.Ed.2d 707

S.Ct. A. governmental affairs lies of the First Amendment’s “at the heart Amendment, applicable made The First pro protection”). This is because “[t]he to the states the Fourteenth Amend- ... was fashioned to given speech tection ment, provides “Congress shall make ideas for interchange unfettered assure ... the freedom of abridging no law Const, political and social Although bringing I. about speech.” U.S. amend. 1114 ... “unchallenged dogma century, it was Roth v. people.” desired

changes 476, 484, right had no public employee 77 that a States, S.Ct. U.S. 354 United (1957). the terms “[SJpeech object placed upon to conditions 1498 1304, 1 L.Ed.2d re is more than self- those which employment including affairs concerning public — self-gov- essence of of constitutional it is the exercise expression; stricted Louisiana, 379 Connick, 143-44, v. 103 Garrison 461 U.S. rights.” ernment.” 209, 13 L.Ed.2d (citing Supreme five Court U.S. 1684 S.Ct. (1964). 1952). 125 decided between 1882 cases written epigram, Holmes’ classic Justice such as com speech, kinds of Other Supreme Judicial he served on the while enter and some kinds of mercial Massachusetts, aptly expresses Court tainment, positions occupy subordinate petitioner may have this view: “The to some hierarchy but are still entitled politics, to talk but he right constitutional See, Pap’s Erie v. e.g., protection. police right no constitutional to be has 277, 289, A.M., 120 529 U.S. S.Ct. New Bed Mayor man.” McAuliffe (2000) opinion) (plurality 146 L.Ed.2d ford, 155 Mass. 29 N.E. (nude dancing); Florida Bar erotic (1892). 1960s, early During the 1950s It, Inc., For 515 U.S. Went however, change. dogma began (1995) (com L.Ed.2d 541 S.Ct. cases, Supreme rec a series of Court Sexually explicit enter speech). mercial employees could not be ognized that does that is not obscene and tainment required as a condition the ambit involve children falls within not loyalty oaths of to the state swear See, e.g., Ash First Amendment. they associat groups reveal the with which Coalition, Speech v. Free croft ed. 234, 240, 152 L.Ed.2d cases (citing Supreme six Court (2002) (“virtual pornography”). child 1963). between 1952 and decided simply If Roe a member of the were cases, Building on these than a em- general public rather Pickering de- recognized in its 1968 Court sexually ployee, there is no doubt that his against retaliation cision that videos would be explicit but obscene in engaging for public employees Amend- entitled to some measure First can violate the First Amendment. cen- protection against government ment 574-75, Pickering, 391 U.S. at 88 S.Ct. we face here is wheth- question sure. The The Court held unconstitutional 1731. public employee a er Roe’s status as public high dismissal of a school teacher protec- he First Amendment means has no sending newspaper for a letter to a local though expressive tion even for, board of education criticizing the away work- off-duty, occurred from the things, its allocation of school among other nothing govern- about Roe’s place and said educational and athletic funds between con- employment employer. We 88 S.Ct. 1731. programs. Id. conduct retains clude Pickering balancing established a test qualified a First Amendment [employee], whereby “the interests of public under the concern test. citizen, commenting upon in matters as a B. concern,” against public weighed are State, employer, as an “the interest of understanding public in con- To aid efficiency public promoting the here, in application and its we first cern test through employ- performs services origins and evolution. review the test’s 1731. half of twentieth ees.” Id. at 88 S.Ct. roughly For the first at a years later the Su- cism directed official—would Fifteen meaning on the preme plant Court elaborated of a seed constitutional case. “public concern.” 461 U.S. a good judgment, While as matter of That case involved a free S.Ct. 1684. receptive officials should be to brought by claim an assistant dis- constructive criticism offered their attorney terminated after trict who was employees, the First Amendment does questionnaire to her she had distributed require public office to be run as a concerning staff members “office fellow employee complaints roundtable for over morale, policy, transfer office the need internal office affairs. committee, the level of confi- grievance Id. at 103 S.Ct. 1684. The supervisors, employ- and whether dence concern test was thus intended weed out pressured political to work in cam- ees felt claims in an which adverse Id. at 1684. The paigns.” action against employee is taken questionnaire circulated the after plaintiff affairs, complaining about internal office objecting strongly attorney’s to the district employee’s such as the conditions em- part decision to transfer her to a different ployment job status. See id. of the criminal court. Id. at 103 S.Ct. Supreme The Court did not articulate a apply 1684. Rather than precise definition of concern” but balancing initially, test Court employee’s job-related concluded that an balancing pre- test is to held on a touches matter of con- by a inquiry implicit ceded threshold public’s cern when it is relevant Pickering itself: government employer’s evaluation of the speaks a public employee not as [W]hen performance. See id. at upon a citizen matters Thus, an employee’s attempt cern, as an upon but instead “bring light potential wrongdo- actual or interest, only personal matters absent ing part trust” on the breach circumstances, the most unusual a feder- employer constitutes appropriate al court is not the forum in concern, id., matter of as does an person- which to review the wisdom of a employee’s public policy criticism of the by a public agency nel decision taken government employ- made choices allegedly in reaction to the er, funds, such as the allocation of see behavior. Pickering, 391 U.S. at (emphasis 103 S.Ct. 1684 add- ed). only held that Court Connick purpose imposing The Court’s plain- addressed in the last the issues threshold concern test was to avoid questionnaire employees tiffs the of common work- constitutionalization —whether being pressured political to work on were place grievances public employers between campaigns office-supported on behalf of 149, See id. at employees. public candidates —touched a matter of gov- 1684. The Court took the view “that Connick, 149, at if concern. 461 U.S. 103 every ernment offices could not function topics trans- employment decision became a constitu- S.Ct. 1684. The other —office 143, morale, tional matter.” Id. at 103 the policy, S.Ct. fer office need for of confi- grievance committee and the level presume To that all matters which tran- supervisors were, dence in the Court’s spire government within a office are of — view, plaintiffs] extensions virtually of[the mean that “mere public concern would that were thus every certainly every dispute criti- over her transfer” remark-—and 1116 on matters public touched evaluating agency import

not “of concern); Ulrich, F.3d at 978 Attorney.” Id. District of the performance against the (holding protest that a doctor’s there- 148, 1684. The Court physicians was of laying off of other balancing to the applied fore ability it “touched on concern because questionnaire. issue on the last pa- adequately to care hospital of the public con typical Since tients, whether debate about sparking “invariably involved some case has cern ways harmful to address there were less questioning or of criticism form problems”); hospital’s budgetary specific or of its policy, employer’s Dep’t Havekost v. United States personnel ex actions, supervisory or of Cir.1991) (9th 316, Navy, 925 F.2d employer or to the privately either pressed over the dispute an “internal (holding Battaglia, 779 F.2d Berger v. publicly.” code, respon- Navy’s scheduling, and dress omitted). Cir.1985) (footnotes (4th 992, 997 commissary sibility profits” for certain lost Churchill, 511 U.S. v. Waters griev- workplace “the minutiae of were (1994), L.Ed.2d 686 concern). and thus not of ances” obstetrics nurse who involved an example, Indeed, all our cases on which Circuit’s made for comments she allegedly fired was interpreting dissent relies de criticizing obstetrics to a coworker test, involve post concern 664-65, 114 Id. at partment. job. speech related v. Um County Commissioners Board of and Havekost men addition to Ulrich behr, 668, 116 S.Ct. above, Bayer, v. 246 F.3d tioned see Weeks (1996), indepen concerned an L.Ed.2d 843 (statement (9th Cir.2001) con government whose dent contractor department prisons employee of state because he allegedly tract was terminated abuse department’s substance county and the board of com criticized the being discontinued program was at risk 116 S.Ct. 2342. missioners. to secure supervisor’s due to his failure turns status such funds); City County San Roe v. & public employee on “whether (9th Francisco, 580-81 Cir. merely privately about mat complaining 1997) (discussed below); McKinley City himself, as whether personal ters (9th Cir.1983) Eloy, 705 F.2d given or de being paid enough he was (criticism city by police officer of the coun ... or he was promotions served whether give police not to officers cil’s decision ‘going public’ whistleblowing otherwise raise). acknowledge annual These cases public might with matters which not of concern when expected to take an interest.” Eberhardt disputes only personnel it relates O’Malley, Cir. good example A is Roe v. grievances. 1994). Francisco, County & Many of this Circuit’s extensively. quotes the dissent from which by public eases have also involved 1126-1127, 1127-1128, 1128- post em- employees about their Roe, police officer particular 1129. That cases, ployer employment. In these we well, prosecutor wrote a memo to a who question held to be have drug one of Roe’s prosecute had refused to only when it related unprotected cases, legal authorities that attaching some See, Roe, workplace. status in the employee’s helpful. 109 thought he would be Coszalter, (holding 320 F.3d at 974 e.g., subsequently F.3d at 581. When Roe was he city employee’s department, that a disclosures of health transferred to another retaliatory in the transfer was vio- safety regulatory hazards to the state claimed job Id. at is not right speech. to free about but occurs at lation memo in Tucker v. assessing Department In whether Roe’s work California (9th Cir.1996). concern, Education, we F.3d 1204 addressed a matter of said, That upon religious advocacy “The focus must be whether the case dealt with In community likely truly workplace. holding advocacy is to be concern,” particular expression, “obviously interested in the to be we “[tjhis properly recognized it is more viewed as circuit whether and other essentially private grievance.” Id. at courts have defined concern added). held, broadly As we to (emphasis any “[a]n include almost matter other dispute with no wider societal than power internal relates to internal implications struggles is not a matter of workplace.” within the Id. at Instead, genre (emphasis cern. it falls within the of 1210 in original). Neither Ran- disputes grievances’ directly which kin nor Tucker ‘personnel governs the facts case, however, constitutionally significant.” are not Id. at of Roe’s because Roe’s non- 1114) McKinley, job-related 705 F.2d at (quoting away occurred from the added). hand, we (emphasis workplace. On the other

recognized that deserve First Amend- “[t]o Thus turn to we Court’s Supreme protection, sufficient that NTEU, applied decision which pub- speech concern matters in which even a lic concern and Pickering balancing tests relatively of the segment general small public employee speech place that took public might be interested.” Id. at 585. workplace, “outside the and involved con- largely extended the tent employees’] Court unrelated to[the McPherson, NTEU, concern government employment.” test Rankin v. U.S. 97 L.Ed.2d 315 in- U.S. S.Ct. 1003. NTEU (1987), public employee speech that did volved a challenge First Amendment to a job prohibited not relate to the or the statute that federal executive government employer employees but that did occur at branch from receiving honora- case, work. In that a clerical appearances, speeches ria for individual county 459-60, constable’s office was fired for articles. Id. at 115 S.Ct. 1003. coworker, commenting upon hearing brought by to a The suit compris- was a class of the on attempt ing employees assassination President all executive branch below who, Reagan, they that “if for him I go again, grade challenged GS-16 but for the statute, hope they get him.” would receive honoraria. Al- though 2891. The Court held that the statement the class action did not address government’s dealt with a matter of concern be- in- suppression single cause it speech, plaintiffs was “made the course of a stance of the named sub- addressing policies conversation describing types mitted affidavits expressive they President’s administration” and “came on conduct for which had re- regarding the heels of a news bulletin prior what ceived honoraria to the ban. These certainly heightened public matter of included about the environment articles attempt history, Quak- attention: an on the life of the and Russian lectures on the history, religion President.” Id. 107 S.Ct. 2891. As er and black and radio result, “ap- perform- the Court for the first time and television reviews of dance plied balance to ances. Id. at 115 S.Ct. 1003. nothing whose had content do with the Whether these activities workplace.” at 466 n. touched matters case, Circuit, 115 S.Ct. 1003. this we subse- not the central issue in the but the quently public employee speech “pause[d] examined District of Columbia Circuit had ‘as a citizen employee spoke the readily when the issue and to consider

briefly” rather of concern’ matters upon lectures plaintiffs’ the that concluded only of matters employee upon on matters than ‘as an constituted articles ” S.Ct. Id. at interest.’ personal concern: Connick, 461 U.S. at (quoting concern” criterion the read [W]e 1684) (emphasis added inter- the number of not to referring as continued, NTEU). “Thus,” the Court to wheth- readers but or listeners ested nothing involves “private speech to issue relates some expression the er change a complaint bu- a about employee’s more than beyond the of interest may give rise examples duties None of the own niche. reaucratic any special imposing men- expression discipline intended without to past paro- government justification on by plaintiffs involves tioned burden If, however, does concern. employer. chial concern, the involve a matter v. Unit Treasury Employees Union Nat’l justifying bears the burden government (D.C.Cir.1 States, ed (cita- Id. employment action.” its adverse 993).5 not dis did The Court omitted). concluded tion The Court reasoning. the D.C. Circuit’s agree with fall activities ... plaintiffs’ “expressive Indeed, emphasized that the Court citizen category of within their ex compensation for “seek plaintiffs public concern on comment matters as citi capacity pressive activities their on employee comment matters rather than zens, employees.” as Government not in the work- personal status 1003. It related 513 U.S. and arti- speeches place,” “[t]he the con because exceptions, few noted “[w]ith plaintiffs] nothing to for which received messages [the has cles [plaintiffs’] tent of past in the were addressed jobs.” plaintiffs] compensation “[The do with their audience, of co made composed were outside do address audiences instead, they large- content supervisors; workplace, and involved workers general employ- of the speak segments for ly write unrelated to their Rankin, subject ... matter of public. Neither the Court then Id. As in ment.” ... the kind of audi expression concluding their nor Pickering balancing, applied any relevance to they address has ences in expressing interest employees’ that the employment.” Id. their outweighed government’s themselves efficiency. Id. at operational interest “ap- it had emphasized that The Court only 115 S.Ct. 1003.6 balancing test plied Pickering’s (1994) opin- (plurality 128 L.Ed.2d 5. dissent contends that The ion), guidance. Post at instead NTEU the case at all. test was not an cern issue agree lesson the dissent However, We with the post the Court had to at 1129. away Wa- urges from Connick us to take addressed decide whether the at issue ters, government's power employ- as that “the before it could matter sovereign.” power as er is broader than Pickering balancing phase. See reach Connick, remains, question how Post at 1131. The S.Ct. 1684 461 U.S. ever, power is in the just how broad ("[I]f fairly employee’s speech] cannot [the off-duty, non-job-related specific context of constituting speech characterized ques- speech. Waters does not address that concern, unnecessary matter O’Connor, tion, but Justice author [the the reasons for [the court] scrutinize Waters, did so in NTEU. plurality opinion in discharge.”). employee’s] speech at issue readily She concluded be- concern threshold suggests turn to Wa- there met dissent we should Churchill, challenge as it ”[r]espondents the ban cause ters v. yet Although protection in this Circuit we have not fied than it is to set outer to be all that degree protection principle addressed the limits on is. The that off-the-job, emerges non-work-related is that all public employee afforded by public employees, speech by we did cite that content is within speech (4th general Berger Battaglia, 779 F.2d 992 of the first amend- Cir.1985), in Roe v. & is approval qualified with entitled to least Francisco, County protection against public 109 F.3d chill- employer Cir.1997). (9th which, Berger, ing except the Fourth action that realistically off-duty, viewed, police purely held that a officer’s “personal Circuit concern” non-job-related performances in employee musical to the typically, pri- —most makeup were matters of “blackface” vate personnel grievance. though employee

concern even claimed (second added).8 emphasis Id. at 998 court that presumed perform- and the C. any political ances were as to “neutral Berger, precedents even social views.” 779 F.2d at These confirm what the court in ex- aptly explained 999.7 As the observed Court first in Connick: holding: its plaining purpose concern test is to antecedents, preempt category a narrow of claims in Pickering, prog- and its volving speech public employ related to a eny particularly Connick —make — in workplace. Accordingly, ee’s status plain that the concern” or “com- employee’s speech we hold that when the munity inquiry interest” is better de- is not about his signed^ employer more concerned' —-to identi- —and fy a spectrum employment, segment narrow is directed to a quali- general public that is not entitled even to and occurs outside the (2d Cir.2003) (assum applies speech bearing to off-hour no nexus to 336 F.3d 194-200 high ing membership Government def- school teacher's — Man/Boy inition does not relate to 'internal office af- in the North American Love Associ employee's employee. fairs’ or the status as an ation touched on a matter of Myers].” holding Pickering balancing [Connick v. 513 U.S. at under Cf. J., (O’Connor, concurring justified terminating 115 S.Ct. 1003 the school was in Moreover, dissenting Giuliani, part part). employment); Pappas v. teacher's (2d Cir.2002) same Court that decided Waters resolved (assuming 146-48 Thus, only year NTEU later. we believe off-duty, anonymous police that a officer’s approach that Waters does not counsel an mailings of racist materials were of different from that NTEU. holding concern and under balanc ing police department justified Berger officer); "inappo- The dissent claims that firing O’Malley, Eberhardt v. (7th Cir.1994) site” because that case involved "artistic (holding ex- 1026-28 pression” whereas Roe’s does not. attorney’s that even if an assistant state's nov Berger viewed Post 1127. But artistic ex- justice system el did not about the criminal pression broadly: concern, "[o]ne of the fundamental touch on matter of em rights secured the amendment is that of ployer legitimate interests that had show free, expression uncensored artistic outweighed the social interest in the attor —even trivial, vulgar, profane.” Berger, matters ney’s speech); Flanagan Munger, F.2d at 1000. 1989) (holding 1562-67 Cir. apply concern test did not off-duty, sexually explicit, 8. Other circuits that have addressed sale of non-obscene videos by police non-work-related have concluded that officers because the con balancing appropriate is the method to re- duct did not occur at work and was not about work, public employee’s Pickering balancing tipped solve the First Amendment and that N.Y., favor). claims. See v. Bd. Educ. the officers’ Melzer 395, at 483 U.S. concern.” See public the satisfies speech that workplace, (Scalia, J., dissenting) speech is not test because concern in the employee’s status is public the of concern (“[S]peech to on matters related workplace.9 lies at the heart that which (internal protection.”) Amendment’s First Roe’s ex determining whether In omitted). citation quotation marks public the meets pressive major nor the NTEU the Rankin Neither “content, form, threshold, the consider we view; accordingly, nei this adopted ities Connick, 461 speech. and context” Otherwise, remove would ther do we. we re 147-48, 1684. With at 103 S.Ct. U.S. employee speech array a broad noted, already content, as we have spect to protection, giving First Amendment from Roe’s argue that do not the defendants a role for which public concern test the any way videos are sexually explicit the purpose never Department intended. Diego the Police about note 4. the constitutionalization Diego. supra prevent See test is to City of San the Indeed, that Roe’s of complaints defendants concede over internal “employee to work.” conduct is “unrelated at 461 U.S. fice affairs.” at 28. Appellees Br. of Responding implicated purpose is not 1684. That only is employment the fact of “[When] speech is not about his here where Roe’s insubstantially involved in tangentially employer. subject matter of the communi contends The dissent also necessary ... conclude that it is cation we of Roe’s videos pornographic nature “[t]he [employee] as the member regard and that Roe’s videos highly relevant” he to be.” Pick general public seeks speech. “lowest level” of constitute the 574, 1731; see at 88 S.Ct.

ering, 391 U.S. expres But even the Post at 1129. NTEU, 115 S.Ct. 513 U.S. also overwhelming ma sion of “ideas that (concluding public employee jority people might find distasteful public concern be speech was matter of alia, protected by the First cause, discomforting” content inter it “involved Black, Virginia em U.S. largely unrelated to their Amendment. 1536, 1547, ployment.”). 155 L.Ed.2d 535 (2003) (cross burning). It is “well estab how- argue, The dissent and defendants may prohibited not be lished ever, must that the content subjects offending our it concerns because way enlighten on issues some Speech v. Free Co sensibilities.” in order to political or social importance Ashcroft alition, concern test. be under (2002) (protecting 152 L.Ed.2d 403 Justice Scalia’s post 1128-1129. produced that is pornography of virtual child in Rankin took this narrow view dissent characterization, J., (O’Connor, part concurring in relevant Contrary to 9. the dissent’s (internal quotation dissenting part) marks have not established a "new definition we omitted). post at concern test.” See Rather, merely applied we have that Roe The dissent claims himself also off-the-job, non-work-related convey speech concern test does not assert his videos so, doing interpret "public speech. we post concern. See on matter way Supreme adopt Although urges same as the concern” in the this court to approach Flanagan, this Circuit in other contexts: see have the Tenth Circuit's Court argues supra that his speech that "does not to internal office note he also relate See Br. of employ- concern test. or the status as an meets affairs Appellant at 26. ee.” 115 S.Ct. 1003 children). (9th Cir.1994). Co., Roe’s videos Aside using real without sexually explicit, but are indeed crude and from the fact that the defendants do not under they are not obscene inference, nothing advocate the dissent’s thus would enti- precedents and Court complaint suggests that his failure tled to some under First profile take down his seller’s was intended Amendment. See id. expression of protest against as an Moreover, Department’s restrictions. we of the First Amendment inter

The level important is an factor doubt that viewer who saw est stake Roe’s sell- Picketing balancing phase, but the rele eBay er on profile understood to reflect inquiry for of the purposes vant content grievance Diego a about the San Police subject public concern test is whether the restrictions, Department’s especially when speech matter of the profile does not associate the seller “genre personnel falls within the dis the Department. Spence with Wash- v. Cf. grievances,” category putes and 405, 410-11, ington, 94 418 U.S. S.Ct. constitutionally signifi that is not (1974) (concluding 41 L.Ed.2d 842 City County cant. v. & San Fran Roe expressed particular message (internal cisco, quotation 109 F.3d at 586 intent convey particu- “[a]n where to [that] omitted); marks see v. Johnson Multno message present, larized was Or., 420, 424, 426 County, mah 48 F.3d surrounding circumstances the likelihood (9th Cir.1995) (recognizing that the “First great that message was would be un- reck protecting Amendment interest it.”).10 derstood those who viewed lessly “very false statements” is limited” respect With to the form and context of holding that “the but recklessness speech, Roe’s videos were made and employee and the falseness of the state workplace.” distributed “outside part ments should be considered ... as 1003. test,” Pickering balancing pub not the addition, In Roe not did choose to address test). lic concern composed “audiences of co-workers or su- un- Roe’s videos do not fall within that pervisors.” Id. at 115 S.Ct. 1003. category of personnel disputes Rather, expression was to Roe’s directed maintains, grievances. The dissent “segments general He public.” however, that Roe’s failure to remove his widely sold the videos on a used profile eBay pertain seller’s does to a site, auction and the Internet itself is personnel dispute expressed “it because medium that reaches a diverse and wide- disregard disdain or for the Thus, spread audience. Roe’s choice placed upon super- restrictions him his that he medium and audience indicates visor.” Post 1127. On a motion to speaking general as a member of the was claim, dismiss for failure to state a we than employee. rather as must draw all reasonable inferences in fa- content, to form and addition non-moving party. vor of the See Everest context, Jennings, Inc. Am. have also to the em- & Motorists Ins. we looked Moreover, Oakland, (9th recognizes, as Roe the dissent 10. Cir.2001). part Department ample was terminated in for the content his will have videos, just failing opportunity prove disobedience for to take to on remand under the profile. post analysis Healthy down his seller’s at 1124- mixed motive of Mt. that it Indeed, alleged would have fired Roe for disobedience or 1125. has employment regardless expres- principal tent of his videos was the reason for outside Umbehr, procedural stage, his termination. At this we sion. See accept must this fact as true. See Zimmerman Picker- to proceeding without ment claim speaking. Ul “motivation” ployee’s VanRheen, balancing. 979; ing Pool v. rich, F.3d at Cir.2002). have We used should not be “motive D. cautioned concern; rather, test a litmus Depart- does not render holding Our factor.” single greatest is the content Roe for his against act ment powerless (internal quota Havekost, at 318 Rath- conduct. off-duty, non-work-related omitted). main The dissent tion marks ultimately en- er, speech is Roe’s whether furthering tains on the depend will titled his interest” because private “purely step, In that balancing phase.11 out facilitate was “intended expres- in Roe’s interests the free Post at activities.” side business against activity weighed must be sive true, profit but commercial may That “in promoting interest Department’s of motivation type not the gain is performs it efficiency of the services protec screens from concern test Pickering, 391 employees.” through recog Supreme Court has tion. As 1731; 568, also Ran- see 88 S.Ct. U.S. at nized, significant “compensation provides 2891; kin, Wa- at expression.” toward more incentive 1878; ters, 673,114 S.Ct. Coch- 511 U.S. at NTEU, at 513 U.S. 222 F.3d City Angeles, Los ran v. gave lectures employees In (9th Cir.2000); Gilbrook 1200-02 exchange for substan articles and wrote (9th Westminster, 839, 867-69 $3,000per year much as tial honoraria —as Cir.1999) factors that (identifying various supple employees order to for some —in Melzer, balance); in the weigh cf 461-63, 115 their income. ment balancing test (applying 197-99 F.3d at em Notwithstanding context). Alternatively, under in a similar monetary gain, by ployees were motivated prevail can Healthy, Department Mt. concluded that Court if claim First Amendment Roe’s category protected fell “within the of the by preponderance evidence proves on matters of citizen comment regard- it would have terminated 466, 115 concern.” Id. S.Ct. 1003. Umbehr, 518 expression. less sum, expressive Roe’s conduct Because 116 S.Ct. 2361. U.S. at matters, was private personnel not about Pickering not reach the court did district general pub- of the segment to a directed Healthy mixed balancing phase or Mt. lic, workplace occurred outside remand to the district analysis, we motive by employment-re- an was not motivated proceedings. court further for Thus, speak- he was grievance. lated and REMANDED. REVERSED employee an on matters related ing as Un- workplace. in the personal his status LAW, dissenting. Judge, Circuit WARD test, expres- der the Roe’s respectfully I dissent. unpro- conduct not fall within an sive does majority Today the announces district category speech, so the tected dismissing Amend- court erred First summary judgment a claim or on necessarily to state will not have

11. Federal courts test, balancing Pickering which is a employ- every under judgment over adverse "sit in See Bauer action,” question of law for the court. the dissent Post asserts. Cir.2001). Sampson, 261 F.3d may still be dismissed failure 1129. Suits agree concern from an not to a pro- as a matter new rule of law that long decision as it adverse so duces such an absurd result. unprotected fall within an cate-

“does not I private gory speech,” “was not about matters, to a personnel seg- was directed Because the district court dismissed this general public, ment of the occurred out- action at pleading stage, we must ac workplace side the and was not motivated cept as true the facts alleged Roe’s employment-related grievance.” complaint and construe light them the Ante, majority’s 1122. The new most him. favorable to See Transmission flatly connect-the-dots concern test Co., Agency v. Sierra Pac. Power ignores the nature and content of the ex- '' (9th Cir.2002). This does not case, pressive conduct at issue in this mean, majority apparently believes, as the dilutes the concern” threshold so may that we overlook allegations application balancing (ER 1-18) complaint that are harmful to test as to it out of Al- read existence. forth, Accurately his case. set the facts though majority purports to divine its make clear that Roe’s sweeping new rule from States v. United job was both related to his and not on a Treasury Employees National Union matter of public concern. (“NTEU”), (1995), 130 L.Ed.2d 964 that case involved formerly Roe was an employed as officer neither an adverse decision tenure, the ER 2. During SDPD. his he government nor employer the as the sale, produced, for offered and sold majori- public concern test. Because the through adults-only the section the ty’s astonishing disregards new rule eBay internet auction videotapes site de- public employee content of and picting stripping police himself off a uni- govern- blurs the distinction between the masturbating. form and ER 4-6. He also power employer ment’s exercise of as rath- police offered for formerly sale uniforms sovereign, directly than it er contravenes used SDPD and the National public employee speech doctrine devel- Department. Police ER 3. Roe utilized Education, oped v. Board of “Code3stud@aol.com” eBay username 563, 571-72, 20 profile and described himself his seller’s (1968), Myers, L.Ed.2d 811 Connick v. 461 being as “in the field of Law Enforce- 138, U.S. 75 S.Ct. L.Ed.2d ER 6. He picture ment.” included his (1983), Churchill, and Waters listings of the items he offered for sale. 661, 675, U.S. 128 L.Ed.2d ER 5. (1994), as a as well host of Ninth Another SDPD officer discovered Roe’s defining type Circuit cases marketing through internet activities that rises to the level of concern.” eBay ER In linking search. 3. to Roe’s Applying its new version of the adults-only listings, the officer had to “cer- case, concern test to the facts of this tify” that not “pornographic he did And majority Diego holds the San Police adults, images engaged of nude adults (“SDPD”) Department required justi- sexual acts or other sexual material to be fy in federal court its decision to fire Roe objectionable.” part offensive or ER 4. As violating departmental regulations by for investigation of the further SDPD’s offering for sale over the internet an activities, a different SDPD officer uniform offering selling SDPD purchased pair from Roe a of men’s briefs videotapes stripping police of himself off a masturbating. simply uniform and I can- one of ER That his videos. officer directed con- policies department four a custom request for Roe also emailed duct, not fired for speech. would Roe Roe a friend wherein for made video videos; viewing friend a citation issuing making, possessing, to be pretend writing the On the selling while them. “strip down fired he was and would to take depart- hand, friend] deal the three only [the make one of ticket and other up [Roe’s with back, exclusively end would which at issue seems policies the cus- ER 9. Roe made masturbation].” the videos and marketing of related it to and shipped and sold tape, (Outside tomized paraphernalia pornographic other later Id. Roe was officer. the undercover do tend policies The other Employment). investigation part interviewed of the videos subject matter to reach the foregoing all of the and admitted to themselves, i.e., police off stripping ER 9-10. duct. Therefore, I masturbating. uniform majority’s con- the SDPD investigation, take issue with Following the do not minimally determined ex- Unit there is Standards clusion that some Professional department question violated three activity Roe had pressive issue. Conduct, Immoral activity policies Unbecoming then is whether — ER Conduct, Employment. and Outside rises to the level to cease ordered him captain 10. Roe’s into may be hauled Nevertheless, Roe such activities. to ter- justify its decision court to federal profile, which eBay seller’s maintained his Roe. minate prices and the description included a question threshold is the That videos, price as well as first two case. employee speech dis- ER 10-11. After video. custom-made It is SDPD, this, citing a fourth covering the burden of demon- employee who bears Orders —be- to Lawful policy—Obedience speech that “her was constitution- strating Roe, against proceedings gan termination it addressed matter ally protected —that 29, in the culminated June which VanRheen, v. concern.” public of Pool all Termination for of Notice of violation Cir.2002). 899, This thresh- 11-13. policies. four ER only question is the dis- old question court, contending federal Roe sued in only question trict court decided and his First violated that his termination presented here. Keep correctly Judge rights. Amendment ques- answering this simply of Instead demonstrate how that Roe failed to held tion, to ask majority digresses and for sale and offering police actual uniforms questions, e.g, “[W]hether its own answer sexually marketing, selling producing, effec- public employee status as Roe’s profit is for commercial explicit videos First Amendment tively means he has no as of concern” “speech on matter though expressive protection even Connick, 461 U.S. at defined away from the off-duty, occurred duct Tacoma, and Rendish nothing and said about Roe’s workplace (9th Cir.1997), granted F.3d 1216 employment employer”; summary judgment for the SDPD. government’s broad hoiv “[J]ust [is II employer] specific context power as non-job-related speeeh[?]” off-duty, question the first is wheth- Analytically, Ante, Questions 1118 n. such as exercising his for er Roe was terminated actual content all, mischaracterize the these at all. to free After right speech utterly and are irrelevant to Roe for violations Roe’s SDPD terminated expressive teachings Connick, conduct was of Pickering, whether and their on a matter of concern. In- progeny. discussion, infra, at 1129. deed, if Roe’s conduct was not Where, here, concern, on a matter of he has not speech is not on a matter of public con- deprived any been First Amendment cern, our oversight” “intrusive gov- protection at all. ernment’s decision “in the Although showing this threshold must name of the First Amendment” must end. every public employee speech be made 461 U.S. at 103 S.Ct. 1684. case, majority it treats here as an As the Supreme Court reiterated fifteen than a required ap alternative rather years Pickering: after But proach. majority the cases the refer ante, lengthy string-cite, ences Pickering, its antecedents and progeny, 1119 n. all and elsewhere make clear lead tous conclude that if Myers’ ques- may that a federal court not resort tionnaire cannot fairly characterized it Pickering balancing until first decides as constituting speech on a matter of issue is on matter of concern, unnecessary us See, e.g., concern. Melzer v. Bd. of to scrutinize the reasons her dis- Educ., (2d Cir.2003) 336 F.3d charge. When expression concern); (assuming a matter of fairly cannot be considered as relating Giuliani, Pappas v. 290 F.3d 146-418 social, matter political, (2d Cir.2002) (same); Dept. Tucker v. Cal. other concern to the community, govern- (9th Cir.1996) Educ., enjoy should wide lati- (“Here, religious expression officials managing offices, tude in their concern.”); without obviously and it is of public oversight intrusive O’Malley, judiciary Eberhardt (7th Cir.1994) (same, 1026-28 noting “[t]he the name the First Amendment. separate speech courts have had to that is Perhaps government employer’s dis- very socially valuable from whistle- fair, missal may of the worker not be blowing socially expres and other valuable but ordinary govern- dismissals from public employees, sive activities of ment service which violate no fixed ten- ‘matter of concern’ is the label of ure or applicable regulation statute or distinction”) added); the (emphasis Berger subject judicial are not even if review (4th Battaglia, v. 779 F.2d 998-1002 the alleged reasons for the dismissal are Cir.1985) (holding speech touched on a to be mistaken or unreasonable. concern). public matter of added). (emphasis majority’s upon Flanagan The reliance (10th Munger, v. 890 F.2d 1562-67

Cir.1989), Ill particularly is unfortunate. Flanagan disregarded the well-established public employee speech Whether on a is public in concern test favor of its own public question matter of concern is a we “protected expression” public test for a novo, ‘content, “looking review de to the employee’s expression “nonverbal that form, statement, and a given context of as does not occur at or is not work about ” revealed the whole record.’ v. Ulrich years work.” Id. at In since Francisco, City County & San 308 F.3d decided, Flanagan was no other circuit has of (9th Cir.2002) (quoting adopted this approach. surpris- This is not 1684). ing, Flanagan directly as conflicts with the 461 U.S. at 147-48 & n. (en (3d Cir.1997) 110 F.3d gheny, A banc) (“Given special for the the basis single factor greatest “Content concern public accorded protection v. Havekost United inquiry.” the Connick community value is its instrumental 316, 318 F.2d Navy, 925 Dep’t States of a court asked self-governance, enabling Bayer, Cir.1991). (9th also Weeks See speech relates whether (9th Cir.2001) (“First 1231, 1234 F.3d must deter- matter of concern to a of the content foremost, consider we and of the kind expression whether mine In this speech.”). employee’s] [public of self- to the process of value issue is consistently held have regard, we Massaro, also M. Toni governance.”). of speech is on matter Speech Freedom Silences: Significant of to make helps citizens “if it Workplace, 61 S. Cal. the Public Sector operation about informed decisions (1987) (recognizing 1, 4, 20 n. 95 L.Rev. County City & Roe v. government.” their broadly decisive- “courts defer (9th —often Francisco, San employer’s need ly City Eloy, Cir.1997); McKinley v. —to collecting disciplinary discretion” Cir.1983). Thus, (9th F.2d was employee speech cases where no is “of employee speech where concern). to address found evaluation public’s relevance to agencies, governmental performance these cases majority argues that un- no ... receives because Roe’s inapposite are Ulrich, 308 Amendment.” the First der “unrelated supposedly was 907; Pool, (citing type F.3d not the and thus work” 1114). other “In 705 F.2d at McKinley, preclude. test was meant public concern words, for First Amendment qualify ante, [to this making at 1119-1120. E.g., of the communica- the content protection] law, majority inexpli- determination concern,” societal brief, of broader tion must be to cite the SDPD’s cably chooses “whether with focus than ante, ana- at 1112 rather n. truly interested likely to be community is complaint, allegations of Roe’s lyze the expression, whether particular in the he was em- that while Roe claims which essentially a (1) as properly more viewed he SDPD: officer ployed County City Roe v. & grievance.” private formerly police uniforms for sale offered Francisco, 109 at 585. F.3d and the National by the SDPD used (2) produced Department; he Police similarly. have reasoned Other circuits stripping himself videotapes depicting sold Beach, 304 City Riviera See Brochu (3) masturbating; police uniform off Cir.2002) (analyz- 1144, 1158-59 a custom-made video sold produced he by inquiring whether public concern ing issuing cita- himself in uniform depicting is “the sort of speech at issue uniform and off his stripping then tion the First Amendment discourse which (4) eBay his username ref- masturbating; Hardy v. protect”); intended to Jefferson “Code3,” commonly understood a (6th erenced Coll., Community (5) call; and he police radio high-priority Cir.2001) (“The [public concern] distinction profile as in his seller’s described himself ‘speech on that principle upon is based Enforcement.” “in the of Law being field rung of highest occupies the public issues Roe’s point of inter- Obviously, the whole of First Amendment heirarchy [sic] that his marketing activities items net protec- values, special to is entitled ” they being were “genuine” because at were (quoting tion.’ officer police the actual for 1684)); Alle- offered sale County Azzaro v. profile; Berger he used the of that decision. held that an off- pictured the seller’s police a officer to market duty police fact that he was public, officer’s “blackface” mu Moreover, majority’s argu- his wares. performances sical a matter of public were expressive that Roe’s conduct was alia, because, concern inter perform those way Diego Po- any not “in about ances were “a form of expression.” artistic not associate Department” “[did] lice 779 F.2d at 997. See also Tindle v. Cau ante, Department,” with the [Roe] dell, (8th Cir.1995) (distin simply alleged is at odds with Roe’s guishing Berger holding a Halloween an actual facts: Roe offered sale costume was not on a matter of uniform. These internet SDPD officer’s public concern because expres “[a]rtistic marketing activities caused concern at the sion before a audience quite dif reasons, because, among other SDPD ferent from a decision to wear a costume compromise would Roe’s authori- activities private to a party. Halloween Here there ty safety carrying and the of others in out no public performances, were and there is police Contrary duties as a officer. to his suggest little the record to there was majority’s myopic interpretation of much entertainment ap value Tindle’s job, expres- what “relates” to one’s Roe’s pearance.”). course, Of neither Roe nor job. plainly sive conduct related to his majority argues Roe’s videos are majority distinguish The also tries Thus, form expression. of artistic whether myriad public employee speech cases on Berger expression “viewed artistic broad ground concern test ante, ly,” at 1119 n. is irrelevant. Ber preclude expressive Roe’s conduct does ger inapposite. did because his not involve work- precedents, Under these Roe’s expres Ante, 1115-1117, place grievance. plainly sive conduct does not rise to the majority But the forgets 1120-1121. “speech level of a matter of for, among Roe was terminated other rea- concern.” Even Roe does not assert that sons, employment outside disobeying Indeed, convey his videos such speech. he captain. By continuing the orders his argue does not that his video masturbation eBay maintain his profile seller’s after his Tindle, any communicates idea at all. it, captain ordered him to remove Cf. (“Tindle does not claim he job in pertained to his any intended to comment on expressed disregard that it disdain or issue inter placed upon public.... [Entertaining] restrictions est other i.e., supervisor, personnel him guests private party [by wearing at a dispute workplace grievance. any amusing showing with no costume] event, the cases referenced above from message intended is not on a mat this circuit and others are relevant because concern.”). Rather, ter of Roe ar they that public employee speech establish gues that apply we need not must be of “broader social concern” to test, urging us instead to follow receive First Amendment from misguided Flanagan approach. Sim employer adverse action. ply put, Roe’s videos do not contain mate rial “of broader societal concern” such majority purports to buttress its they highest “the should be accorded de ante, argument with quotation, extensive gree protection.” of First Amendment Battaglia, from Berger v. Francisco, County Roe v. & San nearly twenty-year-old Fourth Circuit (citing McKinley, F.3d at majority case. 779 F.2d at 992. But the 584-85 1114). conveniently critical F.2d at aspect brushes aside a C B his burden not met simply has is whether inquiry “critical Another form, “content, con and that the showing wrongdo bring to in order spoke employee meets the expressive of his text” to further some merely light ing to Although the threshold. concern public Havekost, 925 interest.” private purely to de many euphemisms employs majority employee’s [public “[I]f at 319. videos, e.g., of Roe’s the content scribe self-interested, with essentially is speech] obscene,” “crude explicit but not “sexually ... not of it is then import, public no but “within sexually explicit,” and to general to the concern sufficient expression,” protected realm of broad scrutiny.” Roe Amendment First trigger ante, Roe himself 1110, 1112, 1113, 1120, at Francisco, 109 County City & pornography are that his alleges videos —a disci government Where the F.3d at 585. honest, accurate, assessment. more private-inter plines sell, selling offering to displaying, But “ not the court is ‘a federal speech, est honestly consid may not be pornography to review the which foram’ in appropriate any political, matter of to relating “as ered decisionj’absent un the most [employment community.” to social, other ” (quoting Con circumstances.’ usual Connick, at S.Ct. 461 U.S. 1684). nick, 461 U.S. “concern to of no more “speech” is Roe’s activity, although Here, private other community” Roe’s than internet, actuality pornog involving inwas transaction conveyed via the commercial raphy. individual consumer private directed general than the products rather Roe’s videos nature of pornographic The to not intended

public. “speech” His it establishes because highly relevant is light mischief bring some precedent under our enlighten concern. Al- or to or otherwise on a inform not matter suggest appears though majority to facilitate intended it was public; upon a view is founded this dissent pri- “purely outside business activities—a or dis- are “distasteful Roe’s videos majority assumes The vate interest.” “of- Roe’s videos comforting” or because com- it asserts that when conclusion own ante, sensibilities,” fend our type motivation “is not the gain mercial ma- does not speculation advance from screens concern test Roe’s “dis- argument. Whether jority’s because protection” Amendment] [First would discomforting” videos tasteful incen- significant “compensation provides the First protected by be otherwise Ante, at expression.” more tive toward entirely. point misses Amendment (another from quote out-of-context fairly “cannot Roe’s videos Because 1003). constituting speech on a characterized expressive conduct If the concern,” matter concern, as is case a matter of Roe’s First by the First here, is not have not been violated rights Amendment in- there is no relevant Amendment required not be should the SDPD expression. centive toward to ter- court its decision justify federal also Thus, analysis of Roe’s motivation him. minate are not entitled that his videos makes clear IV re- protections Amendment to the First defini- majority on a contends that new employees served to warranted public concern test is tion matter concern. public employee of speech here because on its head— job (purportedly) did not relate to his and Katie, bar the door!—for the federal matters; personnel not about oc- in judgment courts now will sit every over work; curred outside of and was “directed public employee adverse action involving Ante, segment general public.” a of the speech concern, not on a public matter of test, 1121-1122. Applying at new speech but slightest. concludes, majority boldly a citing without NTEU, Nor does 513 U.S. at case, a single speech is matter of majority’s further the cause. Pickering balancing public concern and NTEU, the Supreme Court struck required long so as the these meets down the Ethics Government Act’s ban and not fall unpro- criteria “does within an on receipt of honoraria gov- federal category speech” tected under the First employees ernment for various ac- Ante, 1122. Although Amendment. it NTEU, tivities. In its discussion of otherwise, majority adopts claims thus majority acknowledges “protected expression” backward test concern issue “was not the central issue Flana- that the Tenth invented in Circuit Ante, in the case.” In point gan an “alternative” to the con- fact, it was not at issue in public employee’s cern test a “non- the case at all. where protected expression verbal does not occur employees Public had submitted affidavits at work and is not about work.” 890 F.2d describing compensation their past at 1564. employed No other court has speech activities that prohibited would be Flanagan’s “protected expression” ap- ban, under the honoraria which activities proach, and no court been so has bold as Quaker included lectures on the religion try to it recast as modified and Russian and African-American histo- ante, cern test—until now. at 1120 n. ry, and articles appearances review- ing performances dance and the environ- majority’s misguided, ap-

The misnamed 461-62, ment. 513 U.S. at proach why misapprehends pub- there is S.Ct. 1003. Not surprisingly, govern- place. lic concern test in the first The test sought ment never to defend the statute exempt exists to from employer discipline against employees’ First Amendment employee “highest” discourse at the challenges ground on the these protected speech' level of the lowest —not speech activities did not involve matters City County level. Roe v. & San Fran- Accordingly, concern. cisco, 109 F.3d at (citing McKinley, 584-85 issue, expressly Court never reached the 1114). It exists because if implicitly finding activities on there were not a of protected threshold proceeding matters of concern and speech, public employer would be free statutory to evaluate the ban under any speech to fire an Pickering balancing test. Id. employer disapproved, including which the 115 S.Ct. 1003. great public on matters import. The Supreme Court was asked assert, again any authority, To without NTEU to revisit its concern hold- public employee may that a engage ings, “appl[y] did not range protected speech full free from Ante, majority concern” test. at 1117. The consequence ignores Supreme Court plays Supreme fast and loose with Court jurisprudence, our own which have carved precedent when it cites the D.C. Circuit’s prospect public employer out from the opinion NTEU baldly asserts that discipline only segment speech. majority disagree” turns the doctrine did not “[t]he Court they rights Amendment the First quish[ ] limited discussion court’s that

with to com- enjoy as citizens hardly consti- otherwise That would Ante, at 1118. issue. ”) (em- interest public public of question on matters on the ment holding a tutes of pro- added). cubbyholes not Therefore, does the NTEU Freed from phasis concern. newly majority’s whole, porno- for the analyzed as any basis vide test. matter of concern involve a not public minted do graphic videos defined. as heretofore concern public convenient, ab extracting Moreover, e.g., speech, of “compartments” stract V citizen, government not as as “speaking audi NTEU, to ma- “addressed the relying on employee,” Rather than government to unrelated to ence,” “largely guidance turned for have jority should seg to a interest and “of employment,” in opinion Waters O’Connor’s Justice from NTEU general public,” the of ment 661, 114 Churchill, at bright-line a new to fashion employee disci- involved which con incorrect. the analytically test the discussed speech and for her plined have employee speech, we of text the animates that rationale fundamental reducing ‘dangers of “the against warned government’s “[T]he test: public concern of doctri to a series the First Amendment it a freer hand gives ... employer as role ‘warping different cubbyholes’ and nal employees of its speech regulating the in have fit the boxes we to into fact situations the regulating in it has than ” County &City Roe v. created.’ Id. large[.]” Tuck Francisco, (quoting F.3d at 586 explained: O’Connor As Justice Ed., Dept. v. Cal. er out amply borne principle] [This Cir.1996)). Weeks, See also practical realities considering wheth (“Fortunately, analyzing [in at 1234 many and the employment, government concern,] speech is on matter er believe, ob- which, most we situations multi-part tests have avoided we govern- agree that would servers ill-fit into shoehorn communication would its em- able to restrict must be ment categories.”). ting many speech.... [E]ven ployees’ warping” “fact impermissible It is this of our First maxims most fundamental over elevates form “shoehorning” that cannot rea- jurisprudence Amendment absurdly majority substance, allowing by govern- to sonably applied be activi- to conclude “Roe’s employees. they may appear crude as ties—as — ... also Rend- 1878. See Id. of citi- category within fall[ ] (“[T]he ish, State’s inter- at 1219 concern, matters of zen comment its employ- regulating est on matters rather comment than its interest significantly from differs ees work- status personal to his related citizenry.”). speech of regulating the Ante, holding de- This at 1112. place.” recognizes that example, Waters For “significant contributions means the as core something close “[e]ven employees, by public ideas” marketplace of participation First Amendment protected under properly which are may prohibited campaigns political First Amendment. Similarly, al- employees.” Na- (noting S.Ct. 1003 “generally must restrictions though speech Melville, Hawthorne, Walt Herman thaniel they target,” precisely define lesser Whitman, employees of and federal employer “a public recognizes “relin- and do Waters did not literary stature consistently with the First Amend matter of may, employ- concern. That ment, prohibit employees being its from ment decision lies within the sound discre- customers,’ a standard almost cer ‘rude to police tion of the department, not a federal tainly vague applied too when court sitting “Supreme as the Civil Service large.” Id. at S.Ct. 1878. Commission.” SDPD’s Brief at 16. All this means is that Roe’s First Amendment elaborating important

Further on this rights ordinary are those of an employee, distinction, acknowledges Waters the well- subject to the rules regulations and principle govern established should employer. The mere fact that Roe is a our decision here: public employee gain greater does not him intervening have refrained from [W]e Amendment than First the ordi- government employer decisions that are nary subject citizen ordinary dis- entirely pri- based on is of point appears missal. This critical to be vate concern. Doubtless some such ante, totally majority. lost on the nondisruptive; speech is sometimes 1118 n. 6. it is sometimes of doubtless value

speakers and the listeners. But we have question government

declined to em-

ployers’ decisions on such matters. The nature and content of Roe’s Connick, (citing Id. at S.Ct. determines whether Roe’s termination is 1684). 146-49, 103 subject to First Amendment review. Be- The lesson of Connick Waters is cause Roe’s “cannot fairly government’s power as employer constituting characterized as speech on a power sovereign. is broader than its as concern, matter of public the First key analysis “The to First Amendment inapplicable Amendment is and the court government employment decisions [is that] need not scrutinize the reasons for government’s achieving interest Ulrich, adverse actions.” 308 F.3d at goals effectively efficiently as possi- as Connick, 977-78 (citing 461 U.S. at relatively ble is elevated from a subor- 1684). analysis Remand for un- sovereign dinate interest when it acts der Healthy City Mt. School significant employ- one when it acts as District Doyle, Board Education v. Waters, er.” 511 U.S. at 274, 287, U.S. 50 L.Ed.2d 1878. See also (1977), unwarranted, is therefore (recognizing govern- 103 S.Ct. 1684 that a I affirm would the district court. employer may restrict speech that “beyond would not lie pro- otherwise Amendment”).

tection of the First purely private expressive protected by the First Amendment. could not enact a law

prohibiting him from making selling Connick, Waters,

his videos. But under

and the relevant employment regu- SDPD

lations, if Roe wishes to be an officer

SDPD, subject he is to termination for

speech within the ambit of the First

Amendment, but which does not involve a

Case Details

Case Name: John Roe v. City of San Diego San Diego City Police Department David Bejarano George Saldamando Glenn Breitenstein

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jan 29, 2004

Citation: 356 F.3d 1108

Docket Number: 02-55164

Court Abbreviation: 9th Cir.