Matt MOONIN; Donn Yarnall; Erik Lee v. Kevin TICE; Luis Zapata; State of Nevada Department of Public Safety, Highway Patrol Division (NHP)
No. 15-16571
United States Court of Appeals, Ninth Circuit.
August 22, 2017
853 F.3d 853
Kari Elisabeth Hong, Attorney, Boston College Law School, 885 Centre Street, Newton, MA 02459, Stephen William Manning, IMMIGRANT LAW GROUP PC, P.O. Box 40103, Portland, OR 97240, for Amicus Curiae LAW PROFESSORS, IMMIGRATION SCHOLARS, AND CLINICIANS
Stephen B. Kang, ACLU Foundation of Northern California, 39 Drumm Street, San Francisco, CA 94111, for Amicus Curiae ACLU IMMIGRANTS’ RIGHTS PROJECT, ACLU OF NORTHERN CALIFORNIA; ACLU OF SOUTHERN CALIFORNIA; ACLU OF SAN DIEGO & IMPERIAL COUNTIES; AMERICAN IMMIGRATION COUNCIL and NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD
Christopher Hajec, CENTER FOR INDIVIDUAL RIGHTS, Suite 300, 1233 20th St. NW, Washington, DC 20036, for Amicus Curiae IMMIGRATION REFORM LAW INSTITUTE
Before: HARRY PREGERSON, JAY S. BYBEE, and N. RANDY SMITH, Circuit Judges.
No further petitions for panel rehearing or rehearing en banc will be entertained in this case.
Argued and Submitted December 13, 2016 San Francisco, California
Filed August 22, 2017
ORDER
Appellant‘s petition for panel rehearing is hereby GRANTED.
The opinion and dissent filed February 7, 2017, Nos. 14-50393 and 14-50394, and appearing at 847 F.3d 1124, are withdrawn. It shall not be cited as precedent by or to any court of the Ninth Circuit.
A memorandum disposition is being simultaneously filed with this order. Judge Pregerson concurs in the judgment.
Kenneth J. McKenna (argued), Reno, Nevada, for Plaintiffs-Appellees.
Before: MARSHA S. BERZON and MARY H. MURGUIA, Circuit Judges, and FREDERIC BLOCK,* District Judge.
OPINION
BERZON, Circuit Judge:
We address a question arising out of a dispute regarding the management of the Nevada Highway Patrol (“NHP“) canine drug interdiction program (“K9 program“)—whether a policy announced in an email sent by defendant-appellant Major Kevin Tice to NHP K9 program officers, including plaintiff-appellee Matt Moonin, violated the First Amendment by imposing an impermissible “prior restraint” on government employee speech.1 We hold that the sweeping policy imposed by Tice‘s email violated the troopers’ clearly established First Amendment rights. Accordingly, we affirm the district court‘s denial of qualified immunity.
I.
Moonin had been a trooper in the NHP K9 program. He alleges in his complaint that certain NHP officers sought to undermine the effectiveness of the K9 program, and that the policy announced by Tice was designed to prevent police officers involved in the program from making the problems in the K9 program known to the public.2 The operative amended complaint asserted ten claims for relief pursuant to
The question before us turns on the constitutionality under the First Amendment of a policy imposed in a February 24, 2011 email sent by Tice to southern command K9 officers, including Moonin. The email at issue, sent shortly after the K9 program was reorganized, reads:
Good afternoon,
As we reengage in K9 and interdiction program oversight at the regional command level, it is important to ensure appropriate flow of communication. It is critical that we identify and resolve issues and inconsistencies that have developed since the current program‘s inception. Effective immediately, except for allied [law enforcement] agencies and [High Intensity Drug Trafficking Area] representatives, there will be NO direct contact between K9 handlers, or line employees[,] with ANY non-departmental and non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics therein. All communication with ANY non-departmental and non-law enforcement entity or persons regarding the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics relating to these programs WILL be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately.
Lieutenants Haycox, Smith and Acting Lieutenant Lee: Please document your discussion and understanding of this direction with Troopers Matt Moonin [and other named employees] immediately. In addition, please have necessary discussions with appropriate Sergeants.
Moonin contends that no follow-up meeting occurred; Tice disputes that. The parties agree that at the time Tice sent the email, the K9 officers, including Moonin, were subject to pre-existing NHP confidentiality policies not contested here.
Tice‘s email was sparked by concerns arising from, in the words of one of Tice‘s superiors, “questions coming from the legislature . . . [and from] governor‘s offices and from different sources . . . [with] incomplete understandings of what‘s going on.” Tice later explained that the policy‘s intent “was to forbid direct contact with ‘Friends for K9’ representatives by the K9 and interdiction employees.” Tice described Friends for K9 as a private organization that was “intentionally meddling into how the unit was run.” According to Tice, “[s]evering contact with members of Friends for K9 was appropriate to eliminate their inappropriate influence and access.”
The plaintiffs’ First Amendment “prior restraint” claim concerning this email survived the district court‘s rulings on defendants’ motions to dismiss. The plaintiffs moved for partial summary judgment on the “prior restraint” issue; the defendants shortly thereafter cross-moved for summary judgment on all remaining claims.
The district court granted in part and denied in part each party‘s summary judgment motion. After concluding that Moonin had standing to bring the First Amendment claim, the district court determined that “Tice‘s email was not a lawful prior restraint” and that Tice was not entitled to qualified immunity because “a reasonable supervisor would have known that such a mandate was an unconstitutional intrusion into Plaintiffs’ established First Amendment rights.” Finding no disputed issue of material fact that would preclude summary judgment with respect to this issue, the court granted Moonin‘s motion for partial summary judgment on the First Amendment claim and denied Tice‘s cross-motion in relevant part. Tice appealed.
II.
Resolution of this appeal turns, ultimately, on whether Tice is entitled to qualified immunity. We must grant Tice qualified immunity unless Moonin can show that Tice “violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” City of San Francisco v. Sheehan, 575 U.S. 600, 135 S. Ct. 1765, 1774, 191 L. Ed. 2d 856 (2015) (citation omitted). We first consider whether Tice‘s email imposed an unconstitutional “prior restraint” on the K9 troopers’ speech. We then address whether any rights Tice violated were clearly established at the time of his alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009).
A. Constitutional Violation
“[C]itizens do not surrender their First Amendment rights by accepting public employment.” Lane v. Franks, 573 U.S. 228, 134 S. Ct. 2369, 2374, 189 L. Ed. 2d 312 (2014). Moreover, “[t]here is considerable value . . . in encouraging, rather than inhibiting, speech by public employees,” because “government employees are often in the best position to know what ails the agencies for which they work.” Id. at 2377 (brackets, internal quotation marks, and citation omitted). At the same time, “government employers, like private employers, need a significant degree of control over their employees’ words and actions.” Id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Accordingly, government employees may be subject to some restraints on their speech “that would be unconstitutionally applied to the general public.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam).
Although the Pickering framework is most often applied in the retaliation context, a similar analysis is used when assessing prospective restrictions on government employee speech. See United States v. Nat‘l Treasury Emps. Union (NTEU), 513 U.S. 454, 465-68 (1995); Gibson v. Office of Attorney Gen., 561 F.3d 920, 926-27 (9th Cir. 2009). Where a “wholesale deterrent to a broad category of expression” rather than “a post hoc analysis of one employee‘s speech and its impact on that employee‘s public responsibilities” is at issue, NTEU, 513 U.S. at 467, the Court weighs the impact of the ban as a whole—both on the employees whose speech may be curtailed and on the public interested in what they might say—against the restricted speech‘s “‘necessary impact on the actual operation’ of the Government,” id. at 468 (quoting Pickering, 391 U.S. at 571). “[U]nlike an adverse action taken in response to actual speech,” a prospective restriction “chills potential speech before it happens.” Id. The government therefore must shoulder a heavier burden when it seeks to justify an ex ante speech restriction as opposed to “an isolated disciplinary action.” Id.
1. Speech as a Citizen on a Matter of Public Concern
The first prong of the employee speech analysis involves two inquiries: whether the restriction reaches only speech within the scope of a public employee‘s official duties, and whether it impacts speech on matters of public concern. See Garcetti, 547 U.S. at 423-24. In assessing a prior restraint, we focus on the text of the policy to determine the extent to which it implicates public employees’ speech as citizens speaking on matters of public concern. See, e.g., Milwaukee Deputy Sheriff‘s Ass‘n v. Clarke, 574 F.3d 370, 383 (7th Cir. 2009); Gasparinetti v. Kerr, 568 F.2d 311, 316 (3d Cir. 1977).5
Although “[t]he First Amendment protects some expressions related to [a] speaker‘s job[,] . . . when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421. Accordingly, if Tice‘s policy applies only to speech made pursuant to troopers’ official duties, our analysis is at an end. “The critical question . . . is whether the speech at issue is itself ordinarily within the scope of an employee‘s duties, not whether it merely concerns those duties.” Lane, 134 S. Ct. at 2379. As the Supreme Court has emphasized, “the mere fact that a citizen‘s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” Id.
Even if some speech implicated by Tice‘s email edict might fall within the troopers’ official duties, much of the potentially affected speech does not. Tice‘s policy, drafted very broadly, could reasonably be understood to forbid, on penalty of employment discipline, speech made by K9 troopers in their capacities as citizens.
Tice‘s email permits “NO direct contact between K9 handlers[] or line employees with ANY non-departmental and non-law enforcement entity or persons for the purpose of discussing the Nevada Highway Patrol K9 program or interdiction program, or direct and indirect logistics therein.” On a straightforward reading of this sweeping language, it is not confined to “official agency business,” compare Milwaukee Deputy Sheriff‘s Ass‘n, 574 F.3d at 383, nor to information that would harm pending investigations or expose sources and methods, compare Baumann v. District of Columbia, 795 F.3d 209, 217 (D.C. Cir. 2015) (upholding a policy prohibiting disclosure of “confidential information that may jeopardize the successful conclusion of an investigation“).
The policy as enunciated encompasses employees’ opinions about the program. It also reaches legitimate “whistleblower” complaints about the program. And, although the policy affects only speech relating to the K9 or drug interdiction programs, we may not assume that the troopers speak as employees rather than citizens on every occasion in which they discuss information learned or opinions developed while on the job. See Lane, 134 S. Ct. at 2379, “[S]peech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.” Id. Absent any qualification regarding what types of information or opinions regarding the K9 program are subject to the policy, we cannot say that Tice‘s edict affects only speech made pursuant to the affected troopers’ official duties.6
Tice contends that, as part of their official duties, troopers are required to report misconduct, and therefore, to the extent the challenged policy covered speech addressing misconduct within the department, such speech would have fallen within Moonin‘s official duties. See Hagen v. City of Eugene, 736 F.3d 1251, 1258-59 (9th Cir. 2013) (holding that a K9 officer‘s reporting of work-related safety issues to his supervisors did not constitute speech as a private citizen). It is true that Department of Public Safety policy requires employees to report “misconduct . . . where such activities may result in criminal prosecution or discipline under [Department of Public Safety] policy.” Troopers are required to report misconduct “to their immediate supervisor,” or, if the incident is sufficiently serious, to the Chief of NHP.
But, even granting that troopers are required as part of their jobs to report some kinds of misconduct internally, Tice‘s email forbids speech about many topics aside from misconduct—disagreements about the best K9 training protocols, for example. Under Tice‘s policy, troopers may not convey their opinions about any aspect of the K9 or drug interdiction programs to legislators or community groups. The policy thus covers speech outside the troopers’ official duties, whether or not some speech within those duties is also covered.
b. Matter of Public Concern
“Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Lane, 134 S. Ct. at 2380 (internal quotation marks and citation omitted). Whether speech addresses a matter of public concern “turns on the ‘content, form, and context’ of the speech.” Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). Here, again, we consider all speech to which the challenged policy applies.
Moonin contends his speech would have included commentary about “NHP‘s misuse of funds, promoting and condoning of unconstitutional searches, and sabotage of the K-9 Program.” Cf. NTEU, 513 U.S. at 461-62, 466 (considering employees’ past and intended speech in assessing the First Amendment consequences of a statute affecting employee speech). Tice‘s email encompasses such proposed speech. Speech about “inefficiency in managing and operating government entities is [speech about] a matter of inherent public concern.” Moran v. Washington, 147 F.3d 839, 849 (9th Cir. 1998) (brackets and citation omitted); see also Robinson, 566 F.3d at 822 (“As a matter of law, the competency of the police force is surely a matter of great public concern.” (internal quotation marks and citations omitted)). Hence, at least some subset of “[a]ll communication . . . regarding the Nevada Highway Patrol K9 program or interdiction program” implicates matters of public concern.
Moreover, Tice‘s policy encompasses troopers’ informed opinions about the trajectory of the K9 program. In Pickering, the Supreme Court concluded that, even if based on false information, a teacher‘s letter to a newspaper criticizing the school board‘s allocation of funds and its communication with taxpayers could not serve as the basis for the teacher‘s dismissal. 391 U.S. at 570-73. Just as the contents of the teacher‘s letter to the newspaper in Pickering were a matter of public concern, “a difference of opinion . . . as to the preferable manner of operating” the K9 program “clearly concerns an issue of general public interest.” See id. at 569-71. That disputes about management of the K9 program garnered media attention reinforces the conclusion that the policy impacted speech of public interest.
The troopers silenced by Tice‘s policy, like the teacher in Pickering, are “members of a community most likely to have informed and definite opinions as to how funds allotted to the operations of [their government employer] should be spent.” Id. at 572; see also Lane, 134 S. Ct. at 2379-80. The troopers’ freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice‘s edict forbids.
2. Pickering/NTEU Balancing
Because Tice‘s policy reaches speech beyond that undertaken pursuant to the troopers’ official duties and also encompasses speech on matters of public concern, we next ask whether Tice “had an adequate justification” for implementing the policy. See Garcetti, 547 U.S. at 418. “[A] government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations.” Id. at 411.
We must balance “the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of
We note at the outset that “the government‘s burden when seeking to justify a broad deterrent on speech that affects an entire group of its employees is greater than when it is defending an individual disciplinary decision.” Tucker v. Cal. Dep‘t of Educ., 97 F.3d 1204, 1210-11 (9th Cir. 1996) (citing NTEU, 513 U.S. at 468); see also id. at 1211 (“[T]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression‘s necessary impact on the actual operation of the Government.” (quoting NTEU, 513 U.S. at 468 (internal quotation marks omitted))). In particular, “when the Government defends a regulation on speech as a means to . . . prevent anticipated harms, it . . . must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” NTEU, 513 U.S. at 475 (alterations and citation omitted); see also Gibson, 561 F.3d at 928 (upholding a pre-clearance policy where there was “a close and rational relationship between the policy and legitimate governmental interests“).
Tice asserts three justifications for the policy announced in his email. The first concerns “protecting sensitive law enforcement information related to drug interdiction.” Tice contends that permitting “law enforcement officers like Moonin . . . to discuss specifics about the logistics of the K9 and drug interdiction programs” would “compromis[e] the safety of officers and the general public” as well as “confidential criminal investigations and agency operations.” The second interest consists of “controlling the Department‘s official communications about the K9 program.” The third concerns “ensuring effective operation of the agency without disruption” by non-law-enforcement groups. Regarding this third category, Tice expresses concerns about “private interest groups hav[ing] the ability to shape and dictate law enforcement policy, goals, objectives and missions to the Nevada Department of Public Safety,” noting a “potential for disruption in operations, unethical practices, and favored treatment towards these special interest groups.”
NHP undoubtedly has a legitimate interest in keeping confidential much information about the K9 program. Releasing details about specific enforcement efforts or ongoing investigations could threaten the success of those endeavors. See, e.g., Baumann, 795 F.3d at 216 (“It cannot be gainsaid that the [police department] has a weighty interest in preserving confidential information that, if released publicly, could jeopardize the successful conclusion of a criminal investigation.“); Swartzwelder v. McNeilly, 297 F.3d 228, 239 (3d Cir. 2002) (acknowledging the importance of preventing disclosure of confidential police department information). Likewise, managing the content of the department‘s official communications to the public is a legitimate interest. See Swartzwelder, 297 F.3d at 239-40 (“[P]revent[ing] public confusion regarding the City‘s official policies and practices . . . is a legitimate and substantial objective.“). The likelihood of public
We are considerably more skeptical of the third asserted justification, which the record suggests was the primary impetus for Tice‘s email. Tice and his supervisor refer to disruption resulting from communication between K9 officers and outside groups, but specific information about this past or possible future disruption is scarce in the record. For instance, one of Tice‘s supervisors testified that he instructed Tice to send the email “because we had . . . issues with questions coming from the legislature,” governor‘s office, and others with “incomplete understandings of” what was happening in the department. Another officer described, as the motivation for the policy, concerns about “divisional information, department information, related to our decision and decision-making and how we were trying to manage and provide oversight to the canine program . . . being shared outside of the department.” Tice, in his deposition, stated that he received instructions to send out the email because “the influence that was continually being applied to governor‘s staff by outside department individuals . . . [was] no longer welcome” and K9 program members’ continued communication with non-law-enforcement entities was creating “disruption.”
The only more specific account of the incidents motivating the new policy was provided by Tice in his affidavit. In that document, Tice stated that the purpose of the policy “was to forbid direct contact with ‘Friends for K9’ representatives,” because members of the group “were intentionally meddling into how the unit was run, who would be in the unit, day-to-day assignments of the unit members, and how authority over the unit would be structured[,] which severely limited oversight and effectiveness of the Division.” The record does not make clear how this outside group actually accomplished the “meddling” he describes.
Although it could be true that police departments would operate more efficiently absent inquiry into their practices by the public and the legislature, efficiency grounded in the avoidance of accountability is not, in a democracy, a supervening value. Avoiding accountability by reason of persuasive speech to other governmental officials and the public is not an interest that can justify curtailing officers’ speech as citizens on matters of public concern. There is no indication in the record that the non-law-enforcement entities that concerned Tice and his superiors had the “ability to shape and dictate law enforcement policy, goals, objectives and missions” by any means other than successful persuasion of policy-making officials. Without any specific evidence regarding direct, improper interference in specific investigations, vague allegations about the “potential for disruption in operations, unethical practices, and favored treatment towards . . . special interest groups” are insufficient to legitimize an interest in avoiding outside “meddling.”
In any event, even crediting the departmental interests as enunciated, they cannot, individually or taken together, support the sweeping policy announced in Tice‘s email. The message prohibits troopers from engaging in “all communication with
Tice‘s policy makes no distinction between speech about the K9 program that reasonably could be expected to disrupt NHP‘s operations and speech that plainly would not, or that would do so only inasmuch as it engendered legitimate public debate about the management of the program.7 The prohibition it imposes is not tailored to prevent the release of factual information or official records that would jeopardize ongoing or future investigations. Compare Baumann, 795 F.3d at 212, 217; Milwaukee Deputy Sheriff‘s Ass‘n, 574 F.3d at 383. Nor is it targeted only at messages conveyed in an officer‘s official capacity, as would be more likely to muddle the official position of the department. Instead, Tice‘s directive sweeps broadly to cover “all communication” about the program with those outside law enforcement.
Not only is Tice‘s policy broad in terms of subject matter; it imposes a severe limitation directly on the troopers’ speech. The email commands that K9 officers not communicate with non-law-enforcement personnel about the K9 program under any circumstances, with or without prior notice or approval. The mandate is that “[c]ommunication will be accomplished by the appropriate manager/commander if deemed appropriate,” not by the K9 officer wishing to speak. Under Tice‘s policy, only approved messages will ever reach the public, and then only in the words of the trooper‘s supervisor. Such a system creates constitutional difficulties above and beyond those created by pre-clearance regimes.
Like public employer pre-clearance policies held to be unconstitutional, the policy announced in Tice‘s email leaves entirely at the discretion of the trooper‘s “manager/commander” the determination of which communications are “appropriate.” See, e.g., Swartzwelder, 297 F.3d at 238-41; Harman v. City of New York, 140 F.3d 111, 119-21 (2d Cir. 1998). Such unbounded discretion as to substance raises the specter of arbitrary or viewpoint-discriminatory enforcement. See City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 763-64 (1988); Sanjour v. EPA, 56 F.3d 85, 97 (D.C. Cir. 1995) (en banc) (acknowledging this concern in striking down a regulation affecting employee speech).
By going beyond a pre-clearance regime, the additional constriction as to who may convey an approved message sanctions additional interference with the troopers’ right of free expression. The ban on direct speech, silencing the originator of even an approved message, is likely fundamentally to distort the intended message, both by leaving the precise timing and content of any message to a trooper‘s superiors and by misconveying the source of the message.
In sum, Tice has not shown any past disruption sufficient to justify the expan-
B. Clearly Established Law
We next ask whether the First Amendment right Tice violated was clearly established at the time he sent his email in 2011. “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.‘” Mullenix v. Luna, 577 U.S. 7, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
Broad principles ordinarily cannot constitute clearly established law. White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017) (per curiam). Rather, “clearly established law must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although we do “not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. at 551 (internal quotation marks omitted) (quoting Mullenix, 136 S. Ct. at 308).
We first look to binding precedent to determine whether a right is clearly established. Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014). “In the absence of binding precedent clearly establishing the constitutional right, ‘we look to whatever decisional law is available,‘” including relevant decisions of other circuits, state courts, and district courts. Id. (quoting Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004)).
As an initial matter, it was clear in 2011 that some of the speech impacted by Tice‘s edict was protected by the First Amendment. As early as Pickering, it was clear that employees’ opinions about the proper way to administer government agencies, when conveyed in that employee‘s capacity as a private citizen, constituted protected speech. See Pickering, 391 U.S. at 571-72. Controlling precedent also made clear in 2011 that it was generally unconstitutional to punish a police officer for speaking out about malfeasance or mismanagement in the department. See Robinson, 566 F.3d at 824-25. Tice was therefore clearly on notice that a policy precluding all sorts of speech by officers, to whomever communicated, about the K9 program was subject to limits imposed by the First Amendment. Moreover, it was abundantly clear in 2011 that ex ante restrictions on employee speech are more constitutionally problematic than after-the-fact decisions to punish a particular employee for his speech. See NTEU, 513 U.S. at 467-68; Tucker, 97 F.3d at 1210-11.
Without more, the marriage of these two precepts in large part resolves this case. Tice‘s policy was written so broadly as to promise punishment for some speech that, as of 2011, clearly received constitutional protection.
In light of the Supreme Court‘s emphasis on identifying clearly established law “‘particularized’ to the facts of the case,” White, 137 S. Ct. at 552 (citation omitted), however, we consider in detail cases addressing analogous employer prior restraints on speech. These cases demonstrate that the First Amendment right
Employer prior restraint cases address a spectrum of workplace regulations falling, generally, into three categories that raise constitutional issues of increasing severity: (1) regimes requiring that an employer be notified of the content of the employees’ speech; (2) regimes requiring that an employee seek supervisor pre-approval before speaking; and (3) regimes prohibiting any and all discussion of certain topics with the public. Tice‘s email imposed the last of these—a bar on discussion of a particular subject with anyone outside the law-enforcement community. But consideration of the escalating constitutional concerns raised by each category of restrictions both explains and confirms our result today. We therefore address each in turn.
Had Tice‘s edict imposed only a notice regime, we well might grant qualified immunity. There is no relevant controlling authority forbidding a notice requirement,8 and persuasive cases addressing such restrictions, including in the law-enforcement context, have sometimes allowed them to stand. For example, in Latino Officers Association v. Safir, 170 F.3d 167 (2d Cir. 1999), the Second Circuit declined to enter a preliminary injunction against a New York City Police Department policy requiring officers to notify the department in advance of any speaking engagement and to provide a written summary of the speech the next day. The City previously had required officers to obtain prior written approval from the police commissioner before they could proceed with the engagement, but the City rescinded the pro-approval requirement during the course of the litigation. The court accordingly observed that, “[i]n the absence of the approval requirement, there is no opportunity for the City to suppress or delay speech expressing dissenting views.” Id. at 172; see also Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1436-39, 1443 (D.C. Cir. 1996) (reading narrowly an employee pre-publication review policy to impose only a review, rather than an approval, requirement, so as to avoid the “serious constitutional issues” that would arise from an advance approval requirement). Tice‘s policy, in contrast, not only imposed a species of pre-approval requirement, thus allowing NHP to suppress any speech it deemed not “appropriate,” but also prohibited the officers themselves from expressing even approved messages.
As Latino Officers Association and Weaver indicate, the next category of employee speech restrictions, those requiring a supervisor to approve in advance the content of the employee‘s speech, raises more significant constitutional problems. Many cases had held by 2011 that such regulations violate the First Amendment. Even so, were Tice‘s edict limited to a pre-approval requirement, the qualified immunity issue would have a different cast than the one we face.
Controlling cases suggested that employer pre-approval regimes were in some instances permissible, albeit in situations quite different from the one we consider today. For instance, in Snepp v. United States, 444 U.S. 507, 511-13, 100 S. Ct. 763, 62 L. Ed. 2d 704 (1980) (per curiam), the Supreme Court enforced a CIA employment agreement requiring agents to submit for prepublication approval any material relating to the agency, its activities, or intelligence activities in general.
In Gibson, 561 F.3d at 927-28, the Ninth Circuit in 2009 upheld a California Department of Justice policy requiring attorneys employed by the Department to obtain prior approval before engaging in the private practice of law. We concluded that the Department had a legitimate interest in avoiding conflicts of interest and prejudice to the Department and its clients, and in ensuring that employees are devoting their full attention to their work for the Department. Id. at 928. Noting that the policy did not prohibit all outside practice of law and was more permissive than a similar policy upheld by the U.S. Court of Appeals for the District of Columbia, we held that there was a “close and rational relationship between the policy and legitimate governmental interests.” Id.
In short, controlling case law as of 2011 indicated that employer pre-approval regimes tailored to address specific, legitimate government interests sometimes pass constitutional muster. At the same time, persuasive cases addressing pre-clearance regimes more closely analogous to the policy imposed by Tice strongly indicated that even a pre-clearance regime—as opposed to the outright prohibition at issue here—affecting an entire topic of discussion would run afoul of the First Amendment.
For example, in Harman, 140 F.3d at 124, the Second Circuit in 1998 held unconstitutional an agency press policy that applied to employees of New York City‘s child welfare and social services agencies. The policy provided that “[a]ll contacts with the media regarding any policies or activities of the Agency . . . be referred to the [] Media Relations Office before any information is conveyed by an employee or before any commitments are made by an employee to convey information.” Id. at 116. The court, considering the policy‘s effect only on information of public concern and not protected from disclosure by statute, concluded that the interests of the plaintiff employees and the listening public outweighed the agencies’ interests in protecting confidential information and ensuring efficient and effective operation. Id. at 119, 124. In particular, the court highlighted that a pre-clearance requirement could inhibit even speech that ultimately would be approved, as employees might self-censor rather than risk denial of permission to speak; allowed the agency to control the timing of the employees’ speech; and, as the policy gave unbridled discretion to the agency decision-maker, presented an unacceptable
Other decisions similarly demonstrated that, even had Tice‘s policy only required troopers to obtain pre-approval before speaking about the K9 program, the policy would most likely have violated the First Amendment. For instance, in Swartzwelder, 297 F.3d at 238-41, the Third Circuit in 2002 upheld a preliminary injunction prohibiting enforcement of a police department policy requiring employees to obtain supervisor pre-approval before testifying in court as an expert witness. Applying NTEU, the Third Circuit concluded that the police officer challenging the policy was likely to succeed on the merits of his First Amendment claim. Id. at 241; see also Crue v. Aiken, 370 F.3d 668, 674-75, 679-81 (7th Cir. 2004) (holding unconstitutional a policy requiring express authorization before any student, employee, or other individual associated with a university could communicate with a prospective student athlete, and further holding that the official who promulgated the policy was not entitled to qualified immunity). But see Wernsing v. Thompson, 423 F.3d 732, 748-50 (7th Cir. 2005) (concluding that, although the court had “serious doubt” about the legality of a policy requiring Office of the Inspector General staff to obtain prior approval before speaking to the secretary of the department, press, or “any external agent” about Office policies or operations, it was not clearly established in 2000 that such a directive violated the First Amendment); Zook v. Brown, 865 F.2d 887, 889, 892 (7th Cir. 1989) (upholding a sheriff‘s department regulation requiring supervisor approval before employees could identify themselves as officers “in connection with testimonials or advertisements of any commodity or commercial enterprise“).9
As we have already emphasized, Tice‘s edict goes much further than the restrictions considered in any of these cases. His email prohibits all direct contact between troopers and the public for the purpose of discussing any information or opinion relating to the K9 program. As the notice and pre-approval cases indicate and the cases that follow confirm, it was clearly established when Tice sent the email that such a broad restriction on employee speech could not survive First Amendment scrutiny.
Controlling case law addressing flat prohibitions on employee speech is, and was in
NTEU addressed a statute banning the receipt of compensation by federal employees for making speeches or writing articles, regardless of whether the speech related to the employee‘s official duties. Although this restriction banned only an incentive for the creation of speech, rather than speech itself, the Supreme Court concluded that such a sweeping disincentive to speech violated the First Amendment. See 513 U.S. at 475-76. Applying this precedent, the Ninth Circuit later struck down a broadly worded ban on religious advocacy within a particular workplace. See Tucker, 97 F.3d at 1210-12, 1214; but see Berry v. Dep‘t of Soc. Servs., 447 F.3d 642, 650, 652 (9th Cir. 2006) (distinguishing Tucker and upholding narrower restrictions forbidding discussion of religion with clients and display of religious items in areas of a government agency office to which clients had access). The factual situations addressed in these controlling cases are not closely similar to the one we consider today—but that is likely because the bans considered in these cases were narrower and thus more debatably constitutional than the one here, which directly restricts speech and does so outside the workplace. “[N]otwithstanding the absence of direct precedent, the law may be clearly established. Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Deorle v. Rutherford, 272 F.3d 1272, 1285-86 (9th Cir. 2001) (citation omitted).
Because there is limited controlling precedent on point, we turn to persuasive authority. See Jones v. Williams, 791 F.3d 1023, 1034 (9th Cir. 2015). We conclude that persuasive cases addressing more closely analogous regulations would have made reasonable government officials quite aware, had they any doubt, that Tice‘s edict ran afoul of the First Amendment.
The Tenth Circuit, for example, denied qualified immunity to a school administrator who imposed on teachers a “broad ban[] on the discussion of all ‘school matters’ with anyone.” Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1185, 1187 (10th Cir. 2010). The court observed that, when read in the light most favorable to the plaintiffs, the challenged directives were “not limited to the improper discussion of . . . confidential information.” Id. at 1185. As such, the court concluded, the directives “were certainly broad enough to potentially stifle speech of public concern.” Id. at 1186. The administrator‘s “legitimate interests in ensuring the efficient functioning of the school and deterring teachers from disclosing confidential student information did not justify a ban on the discussion of all school matters.” Id.; see also Luethje v. Peavine Sch. Dist., 872 F.2d 352, 354-56 (10th Cir. 1989) (concluding, in the context of a fee application, that a “broadly worded rule” promulgated by the school board that lunchroom personnel must discuss “school problems” with the principal and not with others violated the First Amendment).
The Fifth Circuit in Barrett v. Thomas, 649 F.2d 1193, 1199 (5th Cir. 1981), likewise struck down regulations of a breadth comparable to Tice‘s edict. The court considered a First Amendment challenge to sheriff‘s office personnel regulations pro-
Several district courts and at least one state court have reached the same conclusion regarding similar restrictions. See Int‘l Ass‘n of Firefighters Local 3233 v. Frenchtown Charter Twp., 246 F. Supp. 2d 734, 736, 744 (E.D. Mich. 2003) (invalidating a fire department policy permitting only the fire chief to release facts regarding fire department matters, fires, or other emergencies to the news media); Grady v. Blair, 529 F. Supp. 370, 371-72 (N.D. Ill. 1981) (holding unconstitutional a fire department order prohibiting employees, whether on or off duty, from speaking about any subject pertaining to department activities); Davis v. N.J. Dep‘t of Law & Pub. Safety, 327 N.J. Super. 59, 69, 90, 742 A.2d 619 (Law. Div. 1999) (granting a preliminary injunction against a state police policy requiring, among other things, that officers “[t]reat as confidential, unless the contrary is specifically authorized by competent Division authority, any matters or information which pertain to the Division, its operations, investigations or internal procedures” on the ground that it constituted an unlawful prior restraint); cf. San Bernardino Pub. Emps. Ass‘n v. Stout, 946 F. Supp. 790, 799, 801 (C.D. Cal. 1996) (stating that a policy prohibiting certain county employees from releasing to anyone not authorized to have it any information acquired while at work and prohibiting employees from speaking to the media about matters pertaining to the division “appear[ed] facially to constitute an impermissible prohibition on protected speech,” but not deciding the issue).
This consistent case law certainly does not suggest that government employers may not impose any confidentiality or chain-of-command policies. In particular, the relevant case law makes clear that policies restricting speech uttered pursuant to a public employee‘s official duties are generally permissible. But, as prior cases make clear, such policies must be tailored to protect information the government has a legitimate interest in keeping confidential.
For example, in Milwaukee Sheriff‘s Association v. Clarke, 574 F.3d at 382, the Seventh Circuit in 2009 upheld a sheriff‘s department confidentiality policy providing that “all Sheriff‘s Office employees shall keep official agency business confidential,” and “shall not impart it to anyone except those for whom it is intended, or as directed by the Sheriff or his designee, or as ordered by law.” The Seventh Circuit analyzed the policy as a prior restraint on speech and concluded that it was not unconstitutional because—in contrast to the edict issued by Tice—it expressly applied only to “official agency business,” and thus applied only to speech owing its existence to the officers’ professional responsibilities. Id. at 383-84. In reaching this conclusion, the Seventh Circuit distinguished the sheriff‘s department policy from one that rendered confidential all information “related to” the department‘s official agency busi-
In short, a “robust consensus” of prior cases made clear at the time Tice issued his edict that an employer ordinarily11 may not prohibit its employees from all public discussion relating to a particular department or government program. See Sheehan, 135 S. Ct. at 1778. Tice‘s policy did just that, making punishable any direct communication “regarding the [NHP] K9 program or interdiction program,” with no attempt to tailor the speech restrictions to NHP‘s legitimate interests. Accordingly, we hold that Tice is not entitled to qualified immunity.
C. Moonin‘s Motion for Summary Judgment
In addition to denying Tice‘s motion for summary judgment on the basis of qualified immunity, the district court granted Moonin‘s motion for partial summary judgment on the prior restraint issue. We have already concluded that Tice is not entitled to qualified immunity. As the relevant facts are not in dispute12 and the legal issues are identical, we affirm the district
CONCLUSION
Government employers have significant and legitimate interests in managing the speech of their employees, particularly where the employees’ speech pertains to their work. And policies explaining how sensitive information ordinarily should be handled benefit both employers and employees. We make clear today, however, that a public employer generally may not subject all employee speech regarding a particular government program—whether fact or opinion, and whether liable to disrupt the workplace or not—to a blanket ban. A government employer‘s policies imposing prior restraints on their employees’ speech as citizens on matters of public concern must bear a “close and rational relationship” to the employer‘s legitimate interests, and the broad policy Tice announced did not meet this standard. This conclusion was compelled by prior case law at the time Tice sent his missive. We therefore hold that Tice is not entitled to qualified immunity, affirm the district court‘s denial of his motion for summary judgment on that basis, and further affirm the district court‘s grant of Moonin‘s cross-motion.
AFFIRMED.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE