John Roe v. City of San Diego San Diego City Police Department David Bejarano George Saldamando Glenn Breitenstein , 356 F.3d 1108 ( 2004 )

Opinion by Judge FISHER; Dissent by Judge WARDLAW.

FISHER, Circuit Judge.

Plaintiff-Appellant John Roe,¹ while a San Diego police officer, videotaped himself stripping off a generic police officer’s uniform and engaging in acts of masturbation. He offered these home-made videos for sale on the adults-only section of the popular online auction site eBay, using a fictitious name and a Northern California address. Although the videos did not reveal his connection with the San Diego Police Department (the “Department”), Roe was unmasked when one of his supervisors discovered the videos online and recognized Roe’s picture. The Department confronted Roe, who readily admitted making and selling the videos, and eventually fired him. Roe sued the Department, the City of San Diego and his supervisors in federal district court under 42 U.S.C. § 1983, alleging that his off-duty, non-work-related activities were protected by the First Amendment and could not be grounds for terminating his employment. The district court dismissed Roe’s claim, concluding that the videos did not address a matter of “public concern,” and thus the Department did not violate Roe’s constitutional rights by firing him. We conclude that the district court erred, and reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND²

Roe was employed as a City of San Diego police officer for more than seven years. He was fired after the San Diego Police Department discovered that he was selling sexually explicit, non-obscene videos on the adults-only section of eBay. The videos depict Roe alone, with his face partially masked, taking off a generic police uniform and masturbating.

The Department became aware of Roe’s activities on eBay through the following sequence of events. In July 2000, Roe’s supervisor, Sergeant Robert Dare, searched eBay and located a tan uniform formerly used by the San Diego Police Department. The uniform was offered for sale by a person with the eBay username “Code3stud@aol.com.”

Sgt. Dare searched eBay for other items offered for sale by Code3stud and discovered there were such items in eBay’s adults-only section. After complying with eBay’s access requirements, Sgt. Dare entered the adults-only section and viewed the listings for the items offered by Code3stud. Some of the listings contained Code3stud’s picture, and Sgt. Dare recognized the man pictured as Roe.

Sgt. Dare printed out some of the listings and shared them with other supervisors in Roe’s chain of command, including Captain Glenn Breitenstein. Capt. Breit-enstein contacted the Department’s Professional Standards Unit (“PSU”), which began an investigation into Roe’s activity on eBay. On July 21, 2000, an undercover PSU investigator, Sergeant Alan Clark, purchased two items from Code3stud: a pair of white men’s briefs and a videotape depicting Roe engaging in masturbation. On September 7, Sgt. Clark, again acting undercover, asked Code3stud to produce a custom-made videotape depicting Code3stud issuing another man a citation and then masturbating. Code3stud agreed, produced the video and sold it to Sgt. Clark.

All aspects of the production and sale of the videotapes were conducted while Roe was off-duty and away from his employer’s premises and did not involve the use of any City or Department resources. None of the items Roe offered for sale identified Roe as an employee of the City or Department or as being affiliated, with them in any way. He never identified himself by name in any sale or listing, and he never identified himself as a San Diego Police officer. He described himself in his eBay seller’s profile as living in “Northern California” and being “in the field of law enforcement.” He directed all payments to “S. Shatswell,” a fictitious name, and utilized a post office box address in Northern California. There is no evidence that Code3stud’s real identity was ever discovered by anyone other than Sgt. Dare and the other police officers involved in the investigation.

On October 17, 2000, Sgt. Clark interviewed Roe in person about his sale of videos and clothing on eBay. Roe readily admitted to the off-duty conduct. Sgt. Clark completed his investigation on November 30 and concluded that Roe had violated three Department policies: Policy 9.06 — Unbecoming Conduct, Policy 9.07— Immoral Conduct, and Policy 5.12 — Outside Employment. On December 20, 2000, Capt. Breitenstein ordered Roe “to cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. Mail, commercial vendors or distributors, or any other medium available to the public.”

Roe removed all items he had listed for sale on eBay but did not change his seller’s profile, which described the first two videos he had produced and listed their prices, as well as the price for a custom-made video. On February 13, 2001, Sgt. Dare submitted a report concluding that Roe had violated a fourth Department Policy 9 .04 — Obedience to Lawful Orders— and recommended disciplinary action. After providing Roe with notice and a hearing, the Department terminated Roe’s employment on June 29, 2001 for violation of all four Department policies. There is no evidence in the record that Roe’s job performance was unsatisfactory; his final performance evaluation, covering January 7 to April 27, 2001, indicates that he met expectations and received one letter of commendation.

On September 28, 2001, Roe brought suit under 42 U.S.C. § 1983, alleging that he was terminated principally for the content of his videos in violation of his constitutional right to freedom of speech.³ Roe sued the City and the Department, as well as Chief of Police David Bejarano, Assistant Chief of Police George Saldamando and Capt. Breitenstein in their official and individual capacities. Roe seeks back pay with interest, compensatory and punitive damages, reinstatement and an injunction prohibiting the City and Department from taking further punitive actions against him.

On November 16, 2001, the defendants moved to dismiss Roe’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The district court granted the motion on December 20, 2001 because it determined that Roe’s speech did not touch on a matter of “public concern.” Roe filed a timely notice of appeal on January 18, 2002, challenging the dismissal of his First Amendment claim.

II. STANDARD OF REVIEW

Dismissals for failure to state a claim under Rule 12(b)(6) are reviewed de novo. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). We must accept as true all well-pleaded allegations of fact in the complaint and construe them in the light most favorable to the plaintiff. Id. “Dismissal for failure to state a claim is appropriate if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. (internal quotation marks omitted). Whether a government employee’s speech is a matter of public concern is a question of law that we review de novo. Nunez v. Davis, 169 F.3d 1222, 1226 n. 1 (9th Cir.1999).

III. DISCUSSION

In order to state a prima facie claim against a government employer for violation of the Free Speech Clause of the First Amendment, “an employee must show (1) that he or she engaged in protected speech; (2) that the employer took ‘adverse employment action’; and (3) that his or her speech was a ‘substantial or motivating’ factor for the adverse employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003); see also Ulrich v. City & County of San Francisco, 308 F.3d 968, 976 (9th Cir.2002). A public employee’s speech is protected only if the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Once the employee has made a pri-ma facie claim, the burden shifts to the public employer to demonstrate either that, under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the employer’s legitimate administrative interests outweigh the employee’s First Amendment rights or that, under the mixed motive analysis established by Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the employer would have reached the same decision even in the absence of the employee’s protected conduct. See Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 675-76, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Ulrich, 308 F.3d at 976-77.

Only the first element of the employee’s prima facie case — the public concern test — is at issue here. The district court dismissed Roe’s case because it ruled that his speech did not touch on a matter of “public concern.” Although there is a well-developed constitutional jurisprudence that addresses the meaning of “public concern,” that jurisprudence has typically focused on employee speech that takes place at work or that addresses the policies of the government employer. Here, we deal with videos that were made and sold outside the workplace and said nothing about the employer or any government agency. We therefore must decide whether such off-duty, non-work-related speech receives qualified protection under the public concern test.⁴

We are not the first court to confront this question. In United States v. National Treasury Employees Union (“NTEU ”), 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the Supreme Court held that government employees’ “expressive activities” that “were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment” fell “within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace.” Id. at 466, 115 S.Ct. 1003. Similarly, Roe’s expressive activities — as crude as they may appear — were directed at a “segment[ ] of the general public” and did not have “any relevance to [his] employment.” Id. at 465, 115 S.Ct. 1003. As we explain in greater detail below, we therefore hold that Roe’s expressive conduct falls within the protected category of citizen comment on matters of public concern, rather than employee comment on matters related to his personal status in the workplace.

Consequently, Roe’s First Amendment claim must be resolved under Pickering balancing by weighing the free speech interests at stake against the Department’s legitimate interests as an employer in promoting the efficiency of the public services it performs. See id. at 466, 115 S.Ct. 1003; Umbehr, 518 U.S. at 676, 116 S.Ct. 2342. Alternatively, the Department can prevail under Mt. Healthy’s mixed motive analysis if it can prove by a preponderance of the evidence that it would have terminated Roe regardless of his speech. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. 568; Umbehr, 518 U.S. at 685, 116 S.Ct. 2342. Because the district court did not reach the Pickering balancing test or the Mt. Healthy mixed motive analysis, we remand the case to the district court for further proceedings.

A.

The First Amendment, made applicable to the states by the Fourteenth Amendment, provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. Although “as a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,’ ” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), some kinds of speech receive no protection at all from government intrusion. The categories of unprotected speech include child pornography, New York v. Ferber, 458 U.S. 747, 763-64, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); imminent incitement, Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); true threats, Watts v. United States, 394 U.S. 705, 707-08, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam); obscenity, Roth v. United States, 354 U.S. 476, 483-85, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); libel, Beauharnais v. Illinois, 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919 (1952); and fighting words, Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

Within the broad realm of protected expression, the level of protection varies depending on the subject matter of the speech. The Supreme Court “has frequently reaffirmed that speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S. at 145, 103 S.Ct. 1684 (quoting NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982), and citing Carey v. Broion, 447 U.S. 455, 467, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980)); see also First Nat'l Bank v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (noting that speech on governmental affairs lies “at the heart of the First Amendment’s protection”). This is because “[t]he protection given speech ... was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). “[SJpeech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964).

Other kinds of speech, such as commercial speech and some kinds of entertainment, occupy subordinate positions in the hierarchy but are still entitled to some protection. See, e.g., City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion) (nude erotic dancing); Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (commercial speech). Sexually explicit entertainment that is not obscene and that does not involve children falls within the ambit of the First Amendment. See, e.g., Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (“virtual child pornography”).

If Roe were simply a member of the general public rather than a public employee, there is no doubt that his sexually explicit but not obscene videos would be entitled to some measure of First Amendment protection against government censure. The question we face here is whether Roe’s status as a public employee means he has no First Amendment protection even though his expressive conduct occurred off-duty, away from the workplace and said nothing about Roe’s government employment or employer. We conclude that Roe’s expressive conduct retains a qualified First Amendment protection under the public concern test.

B.

To aid in understanding the public concern test and its application here, we first review the test’s origins and evolution. For roughly the first half of the twentieth century, it was “unchallenged dogma ... that a public employee had no right to object to conditions placed upon the terms of employment — including those which restricted the exercise of constitutional rights.” Connick, 461 U.S. at 143-44, 103 S.Ct. 1684 (citing five Supreme Court cases decided between 1882 and 1952). Justice Holmes’ classic epigram, written while he served on the Supreme Judicial Court of Massachusetts, aptly expresses this view: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517, 517 (1892). During the 1950s and early 1960s, however, that dogma began to change. In a series of cases, the Supreme Court recognized that public employees could not be required as a condition of employment to swear oaths of loyalty to the state and reveal the groups with which they associated. See Connick, 461 U.S. at 144, 103 S.Ct. 1684 (citing six Supreme Court cases decided between 1952 and 1963).

Building on these cases, the Supreme Court recognized in its 1968 Pickering decision that government retaliation against public employees for engaging in protected speech can violate the First Amendment. Pickering, 391 U.S. at 574-75, 88 S.Ct. 1731. The Court held unconstitutional the dismissal of a public high school teacher for sending a letter to a local newspaper criticizing the board of education for, among other things, its allocation of school funds between educational and athletic programs. Id. at 569, 88 S.Ct. 1731. Pickering established a balancing test whereby “the interests of the [employee], as a citizen, in commenting upon matters of public concern,” are weighed against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568, 88 S.Ct. 1731.

Fifteen years later in Connick, the Supreme Court elaborated on the meaning of “public concern.” 461 U.S. at 146, 103 S.Ct. 1684. That case involved a free speech claim brought by an assistant district attorney who was terminated after she had distributed a questionnaire to her fellow staff members concerning “office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” Id. at 141, 103 S.Ct. 1684. The plaintiff circulated the questionnaire after objecting strongly to the district attorney’s decision to transfer her to a different part of the criminal court. Id. at 140, 103 S.Ct. 1684. Rather than apply the Pickering balancing test initially, the Supreme Court held that the balancing test is to be preceded by a threshold inquiry implicit in Pickering itself:

[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

Id. at 147, 103 S.Ct. 1684 (emphasis added).

The Court’s purpose in imposing the threshold public concern test was to avoid the constitutionalization of common workplace grievances between public employers and employees. See id. at 149, 103 S.Ct. 1684. The Court took the view “that government offices could not function if every employment decision became a constitutional matter.” Id. at 143, 103 S.Ct. 1684.

To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark- — and certainly every criticism directed at a public official — would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.

Id. at 149, 103 S.Ct. 1684. The public concern test was thus intended to weed out claims in which an adverse employment action is taken against an employee for complaining about internal office affairs, such as the employee’s conditions of employment or job status. See id.

The Supreme Court did not articulate a precise definition of “public concern” but concluded that an employee’s job-related speech touches on a matter of public concern when it is relevant to the public’s evaluation of the government employer’s performance. See id. at 148, 103 S.Ct. 1684. Thus, an employee’s attempt to “bring to light actual or potential wrongdoing or breach of public trust” on the part of the government employer constitutes a matter of public concern, id., as does an employee’s public criticism of the policy choices made by the government employer, such as the allocation of funds, see Pickering, 391 U.S. at 569-70, 88 S.Ct. 1731.

The Court in Connick held that only the last of the issues addressed in the plaintiffs questionnaire — whether employees were being pressured to work on political campaigns on behalf of office-supported candidates — touched on a matter of public concern. Connick, 461 U.S. at 149, 103 S.Ct. 1684. The other topics — office transfer policy, office morale, the need for a grievance committee and the level of confidence in supervisors — were, in the Court’s view, “mere extensions of[the plaintiffs] dispute over her transfer” that were thus not “of public import in evaluating the performance of the District Attorney.” Id. at 148, 103 S.Ct. 1684. The Court therefore applied Pickering balancing to the last issue on the questionnaire.

Since Connick, the typical public concern case has “invariably involved some form of criticism or questioning of the public employer’s policy, or of its specific actions, or of supervisory personnel expressed either privately to the employer or publicly.” Berger v. Battaglia, 779 F.2d 992, 997 (4th Cir.1985) (footnotes omitted). Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), for example, involved an obstetrics nurse who was allegedly fired for comments she made to a coworker criticizing the obstetrics department. Id. at 664-65, 114 S.Ct. 1878. Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), concerned an independent contractor whose government contract was allegedly terminated because he criticized the county and the board of commissioners. Id. at 671, 116 S.Ct. 2342. The protected status of such speech turns on “whether the public employee was merely complaining privately about matters personal to himself, such as whether he was being paid enough or given deserved promotions ... or whether he was whistleblowing or otherwise ‘going public’ with matters in which the public might be expected to take an interest.” Eberhardt v. O’Malley, 17 F.3d 1023, 1026 (7th Cir.1994).

Many of this Circuit’s public concern eases have also involved speech by public employees about their government employer or employment. In these cases, we have held the speech in question to be unprotected when it related only to the employee’s status in the workplace. See, e.g., Coszalter, 320 F.3d at 974 (holding that a city employee’s disclosures of health and safety hazards to the state regulatory agency and the public touched on matters of public concern); Ulrich, 308 F.3d at 978 (holding that a doctor’s protest against the laying off of other physicians was of public concern because it “touched on the ability of the hospital to care adequately for patients, sparking debate about whether there were less harmful ways to address the hospital’s budgetary problems”); Havekost v. United States Dep’t of the Navy, 925 F.2d 316, 319 (9th Cir.1991) (holding that an “internal dispute over the Navy’s dress code, scheduling, and responsibility for certain lost commissary profits” were “the minutiae of workplace grievances” and thus not of public concern).

Indeed, all our Circuit’s cases on which the dissent relies in interpreting the public concern test, post at 1126-1127, involve speech related to the employee’s job. In addition to Ulrich and Havekost mentioned above, see Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001) (statement by employee of state department of prisons that the department’s substance abuse program was at risk of being discontinued due to his supervisor’s failure to secure funds); Roe v. City & County of San Francisco, 109 F.3d 578, 580-81 (9th Cir.1997) (discussed below); McKinley v. City of Eloy, 705 F.2d 1110, 1112 (9th Cir.1983) (criticism by police officer of the city council’s decision not to give police officers an annual raise). These cases acknowledge that speech is not of public concern when it relates only to personnel disputes or grievances. A good example is Roe v. City & County of San Francisco, 109 F.3d 578, from which the dissent quotes extensively. See post at 1126-1127, 1127-1128, 1128-1129. That particular Roe, a police officer as well, wrote a memo to a prosecutor who had refused to prosecute one of Roe’s drug cases, attaching some legal authorities that he thought would be helpful. Roe, 109 F.3d at 581. When Roe was subsequently transferred to another department, he claimed the transfer was retaliatory in violation of his right to free speech. Id. at 582. In assessing whether Roe’s memo addressed a matter of public concern, we said, “The focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” Id. at 585 (emphasis added). As we held, “[a]n internal dispute with no wider societal implications is not a matter of public concern. Instead, it falls within the genre of ‘personnel disputes and grievances’ which are not constitutionally significant.” Id. at 586 (quoting McKinley, 705 F.2d at 1114) (emphasis added). On the other hand, we recognized that “[t]o deserve First Amendment protection, it is sufficient that the speech concern matters in which even a relatively small segment of the general public might be interested.” Id. at 585.

The Supreme Court extended the public concern test in Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), to public employee speech that did not relate to the employee’s job or the government employer but that did occur at work. In that case, a clerical employee in a county constable’s office was fired for commenting to a coworker, upon hearing of the assassination attempt on President Reagan, that “if they go for him again, I hope they get him.” Id. at 381, 107 S.Ct. 2891. The Court held that the statement dealt with a matter of public concern because it was “made in the course of a conversation addressing the policies of the President’s administration” and “came on the heels of a news bulletin regarding what is certainly a matter of heightened public attention: an attempt on the life of the President.” Id. at 386, 107 S.Ct. 2891. As a result, the Court for the first time “applied the Pickering balance to speech whose content had nothing to do with the workplace.” NTEU, 513 U.S. at 466 n. 10, 115 S.Ct. 1003. In this Circuit, we subsequently examined public employee speech that is not about the job but occurs at work in Tucker v. California Department of Education, 97 F.3d 1204 (9th Cir.1996). That case dealt with religious advocacy in the workplace. In holding such advocacy to be “obviously of public concern,” we recognized that “[tjhis circuit and other courts have defined public concern speech broadly to include almost any matter other than speech that relates to internal power struggles within the workplace.” Id. at 1210 (emphasis in original). Neither Rankin nor Tucker directly governs the facts of Roe’s case, however, because Roe’s non-job-related speech occurred away from the workplace.

Thus we turn to the Supreme Court’s decision in NTEU, which applied the public concern and Pickering balancing tests to public employee speech that took place “outside the workplace, and involved content largely unrelated to[the employees’] government employment.” NTEU, 513 U.S. at 466, 115 S.Ct. 1003. NTEU involved a First Amendment challenge to a statute that prohibited federal executive branch employees from receiving honora-ria for individual appearances, speeches or articles. Id. at 459-60, 115 S.Ct. 1003. The suit was brought by a class comprising all executive branch employees below grade GS-16 who, but for the challenged statute, would receive honoraria. Although the class action did not address the government’s suppression of any single instance of speech, the named plaintiffs submitted affidavits describing the types of expressive conduct for which they had received honoraria prior to the ban. These included articles about the environment and Russian history, lectures on the Quaker religion and black history, and radio and television reviews of dance performances. Id. at 461-62, 115 S.Ct. 1003. Whether these expressive activities touched on matters of public concern was not the central issue in the case, but the District of Columbia Circuit had “pause[d] briefly” to consider the issue and readily concluded that the plaintiffs’ lectures and articles constituted speech on matters of public concern:

[W]e read the “public concern” criterion as referring not to the number of interested listeners or readers but to whether the expression relates to some issue of interest beyond the employee’s bureaucratic niche. None of the examples of past or intended expression mentioned by plaintiffs involves such a parochial concern.

Nat’l Treasury Employees Union v. United States, 990 F.2d 1271, 1273 (D.C.Cir.1993).⁵ The Supreme Court did not disagree with the D.C. Circuit’s reasoning. Indeed, the Court emphasized that the plaintiffs “seek compensation for their expressive activities in their capacity as citizens, not as Government employees.” NTEU, 513 U.S. at 465, 115 S.Ct. 1003. It noted that “[w]ith few exceptions, the content of [plaintiffs’] messages has nothing to do with their jobs.” Id. “[The plaintiffs] do not address audiences composed of coworkers or supervisors; instead, they write or speak for segments of the general public. Neither ... the subject matter of their expression ... nor the kind of audiences they address has any relevance to their employment.” Id.

The Court emphasized that it had “applied Pickering’s balancing test only when the employee spoke ‘as a citizen upon matters of public concern’ rather than ‘as an employee upon matters only of personal interest.’ ” Id. at 466, 115 S.Ct. 1003 (quoting Connick, 461 U.S. at 147, 103 S.Ct. 1684) (emphasis added by NTEU). “Thus,” the Court continued, “private speech that involves nothing more than a complaint about a change in the employee’s own duties may give rise to discipline without imposing any special burden of justification on the government employer. If, however, the speech does involve a matter of public concern, the government bears the burden of justifying its adverse employment action.” Id. (citation omitted). The Court concluded that the plaintiffs’ “expressive activities ... fall within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace,” because “[t]he speeches and articles for which [the plaintiffs] received compensation in the past were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment.” Id. As in Rankin, the Court then applied Pickering balancing, concluding that the employees’ interest in expressing themselves outweighed the government’s interest in operational efficiency. Id. at 466-77, 115 S.Ct. 1003.⁶

Although in this Circuit we have not yet addressed the degree of protection to be afforded off-the-job, non-work-related speech by public employees, we did cite Berger v. Battaglia, 779 F.2d 992 (4th Cir.1985), with approval in Roe v. City & County of San Francisco, 109 F.3d 578, 585 (9th Cir.1997). In Berger, the Fourth Circuit held that a police officer’s off-duty, non-job-related musical performances in “blackface” makeup were matters of public concern even though the employee claimed and the court presumed that the performances were “neutral as to any political or even social views.” Berger, 779 F.2d at 999.⁷ As the court aptly observed in explaining its holding:

Pickering, its antecedents, and its progeny — particularly Connick — make it plain that the “public concern” or “community interest” inquiry is better designed^ — and more concerned' — -to identify a narrow spectrum of employee speech that is not entitled even to qualified protection than it is to set outer limits on all that is. The principle that emerges is that all public employee speech that by content is within the general protection of the first amendment is entitled to at least qualified protection against public employer chilling action except that which, realistically viewed, is of purely “personal concern” to the employee — most typically, a private personnel grievance.

Id. at 998 (second emphasis added).⁸

C.

These precedents confirm what the Supreme Court first explained in Connick: the purpose of the public concern test is to preempt a narrow category of claims involving speech related to a public employee’s status in the workplace. Accordingly, we hold that when the employee’s speech is not about his government employer or employment, is directed to a segment of the general public and occurs outside the workplace, that speech satisfies the public concern test because such speech is not related to the employee’s status in the workplace.⁹

In determining whether Roe’s expressive conduct meets the public concern threshold, we consider the “content, form, and context” of his speech. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. With respect to content, as we have already noted, the defendants do not argue that Roe’s sexually explicit videos are in any way about the San Diego Police Department or the City of San Diego. See supra note 4. Indeed, the defendants concede that Roe’s expressive conduct is “unrelated to work.” Responding Br. of Appellees at 28. “[When] the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication ... we conclude that it is necessary to regard the [employee] as the member of the general public he seeks to be.” Pickering, 391 U.S. at 574, 88 S.Ct. 1731; see also NTEU, 513 U.S. at 466, 115 S.Ct. 1003 (concluding that public employee speech was matter of public concern because, inter alia, it “involved content largely unrelated to their government employment.”).

The dissent and defendants argue, however, that the content of the speech must in some way enlighten the public on issues of political or social importance in order to be protected under the public concern test. See post at 1128-1129. Justice Scalia’s dissent in Rankin took this narrow view of “public concern.” See 483 U.S. at 395, 107 S.Ct. 2891 (Scalia, J., dissenting) (“[S]peech on matters of public concern is that speech which lies at the heart of the First Amendment’s protection.”) (internal quotation marks and citation omitted). Neither the Rankin nor the NTEU majorities adopted this view; accordingly, neither do we. Otherwise, we would remove a broad array of public employee speech from First Amendment protection, giving the public concern test a role for which it was never intended. The purpose of the test is to prevent the constitutionalization of “employee complaints over internal office affairs.” Connick, 461 U.S. at 149, 103 S.Ct. 1684. That purpose is not implicated here where Roe’s speech is not about his employment or employer.

The dissent also contends that “[t]he pornographic nature of Roe’s videos is highly relevant” and that Roe’s videos constitute the “lowest level” of speech. Post at 1128, 1129. But even the expression of “ideas that the overwhelming majority of people might find distasteful or discomforting” is protected by the First Amendment. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 1547, 155 L.Ed.2d 535 (2003) (cross burning). It is “well established that speech may not be prohibited because it concerns subjects offending our sensibilities.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245-46, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (protecting virtual child pornography that is produced without using real children). Roe’s videos are indeed crude and sexually explicit, but they are not obscene under Supreme Court precedents and thus would be entitled to some protection under the First Amendment. See id.

The level of the First Amendment interest at stake is an important factor in the Picketing balancing phase, but the relevant content inquiry for purposes of the public concern test is whether the subject matter of the public employee’s speech falls within the “genre of personnel disputes and grievances,” a category of speech that is not constitutionally significant. Roe v. City & County of San Francisco, 109 F.3d at 586 (internal quotation marks omitted); see Johnson v. Multnomah County, Or., 48 F.3d 420, 424, 426 (9th Cir.1995) (recognizing that the “First Amendment interest in protecting recklessly false statements” is “very limited” but holding that “the recklessness of the employee and the falseness of the statements should be considered ... as part of the Pickering balancing test,” not the public concern test).

Roe’s videos do not fall within that unprotected category of personnel disputes and grievances. The dissent maintains, however, that Roe’s failure to remove his seller’s profile on eBay does pertain to a personnel dispute because “it expressed disdain or disregard for the employment restrictions placed upon him by his supervisor.” Post at 1127. On a motion to dismiss for failure to state a claim, we must draw all reasonable inferences in favor of the non-moving party. See Everest & Jennings, Inc. v. Am. Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). Aside from the fact that the defendants do not advocate the dissent’s inference, nothing in Roe’s complaint suggests that his failure to take down his seller’s profile was intended as an expression of protest against the Department’s restrictions. Moreover, we doubt that any viewer who saw Roe’s seller profile on eBay understood it to reflect a grievance about the San Diego Police Department’s restrictions, especially when the profile does not associate the seller with the Department. Cf. Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (concluding that conduct expressed a particular message where “[a]n intent to convey [that] particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”).¹⁰

With respect to the form and context of the speech, Roe’s videos were made and distributed “outside the workplace.” NTEU, 513 U.S. at 466, 115 S.Ct. 1003. In addition, Roe did not choose to address “audiences composed of co-workers or supervisors.” Id. at 465, 115 S.Ct. 1003. Rather, Roe’s expression was directed to “segments of the general public.” Id. He sold the videos on a public and widely used auction site, and the Internet itself is a medium that reaches a diverse and widespread audience. Thus, Roe’s choice of medium and audience indicates that he was speaking as a member of the general public rather than as an employee.

In addition to the content, form and context, we have also looked to the employee’s “motivation” for speaking. Ulrich, 308 F.3d at 979; Pool v. VanRheen, 297 F.3d 899, 908 (9th Cir.2002). We have cautioned that “motive should not be used as a litmus test for public concern; rather, content is the greatest single factor.” Havekost, 925 F.2d at 318 (internal quotation marks omitted). The dissent maintains that Roe’s speech was furthering a “purely private interest” because his speech was “intended to facilitate his outside business activities.” Post at 1128. That may be true, but profit or commercial gain is not the type of motivation that the public concern test screens from protection. As the Supreme Court has recognized, “compensation provides a significant incentive toward more expression.” NTEU, 513 U.S. at 469, 115 S.Ct. 1003. In NTEU, the employees gave lectures and wrote articles in exchange for substantial honoraria — as much as $3,000 per year for some employees — in order to supplement their income. Id. at 461-63, 115 S.Ct. 1003. Notwithstanding that the employees were motivated by monetary gain, the Supreme Court concluded that such speech fell “within the protected category of citizen comment on matters of public concern.” Id. at 466, 115 S.Ct. 1003.

In sum, Roe’s expressive conduct was not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance. Thus, he was not speaking as an employee on matters related to his personal status in the workplace. Under the public concern test, Roe’s expressive conduct does not fall within an unprotected category of speech, so the district court erred in dismissing his First Amendment claim without proceeding to Pickering balancing.

D.

Our holding does not render the Department powerless to act against Roe for his off-duty, non-work-related conduct. Rather, whether Roe’s speech is ultimately entitled to protection will depend on the Pickering balancing phase.¹¹ In that step, the free speech interests in Roe’s expressive activity must be weighed against the Department’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731; see also Rankin, 483 U.S. at 388, 107 S.Ct. 2891; Waters, 511 U.S. at 673,114 S.Ct. 1878; Cochran v. City of Los Angeles, 222 F.3d 1195, 1200-02 (9th Cir.2000); Gilbrook v. City of Westminster, 177 F.3d 839, 867-69 (9th Cir.1999) (identifying various factors that weigh in the balance); cf Melzer, 336 F.3d at 197-99 (applying the balancing test in a similar context). Alternatively, under Mt. Healthy, the Department can prevail on Roe’s First Amendment claim if it proves by a preponderance of the evidence that it would have terminated Roe regardless of his expression. See Umbehr, 518 U.S. at 685, 116 S.Ct. 2361. Because the district court did not reach the Pickering balancing phase or the Mt. Healthy mixed motive analysis, we remand to the district court for further proceedings.

REVERSED and REMANDED.

1 . Roe is proceeding under a pseudonym pursuant to a district court order granting him permission to do so.

2 . Because this case comes before the court on appeal from a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), all facts alleged in Roe's complaint must be taken as true and must be construed in the light most favorable to him. Transmission Agency v. Sierra Pac. Power Co., 295 F.3d 918, 923 (9th Cir.2002).

3 . Roe also alleged that his termination violated his constitutional right to due process and his rights under state law. The district court dismissed the due process claim with prejudice after Roe conceded that his claim was without merit. The court dismissed the state law claims “without prejudice if Plaintiff chooses to refile in state court.” On appeal, Roe does not challenge the dismissal of his due process and state law claims.

4 . The dissent contends that Roe's speech is "plainly related to his job.” Post at 1126. However, the defendants have not argued that Roe’s speech is in any way related to his employment with the San Diego Police Department or the City, nor do they argue that offering to sell a uniform formerly used by the SDPD somehow linked Roe’s videos to the Department. On the contrary, they have conceded that this case involves speech unrelated to the job: "Roe correctly states that [the] Ninth Circuit has never addressed the exact issue which we have here — off duty conduct, unrelated to work." Responding Br. of Appel-lees at 28 (emphasis added).

5 . The dissent contends that the public concern test was not an issue in the case at all. See post at 1129. However, the Court had to decide whether the speech at issue addressed a matter of public concern before it could reach the Pickering balancing phase. See Connick, 461 U.S. at 146, 103 S.Ct. 1684 ("[I]f [the employee’s speech] cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for [the court] to scrutinize the reasons for [the employee’s] discharge.”).

6 . The dissent suggests we should turn to Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion), instead of NTEU for guidance. Post at 1130. We agree with the lesson the dissent urges us to take away from Connick and Waters, that “the government's power as employer is broader than its power as sovereign.” Post at 1131. The question remains, how ever, just how broad that power is in the specific context of off-duty, non-job-related speech. Waters does not address that question, but Justice O’Connor, the author of the plurality opinion in Waters, did so in NTEU. She readily concluded that the speech at issue there met the public concern threshold because ”[r]espondents challenge the ban as it applies to off-hour speech bearing no nexus to Government employment — speech that by definition does not relate to 'internal office affairs’ or the employee's status as an employee. Cf. [Connick v. Myers].” NTEU, 513 U.S. at 480, 115 S.Ct. 1003 (O’Connor, J., concurring in part and dissenting in part). Moreover, the same Court that decided Waters resolved NTEU only a year later. Thus, we believe that Waters does not counsel an approach different from that in NTEU.

7 . The dissent claims that Berger is "inappo-site” because that case involved "artistic expression” whereas Roe’s speech does not. Post at 1127. But Berger viewed artistic expression broadly: "[o]ne of the fundamental rights secured by the amendment is that of free, uncensored artistic expression — even on matters trivial, vulgar, or profane.” Berger, 779 F.2d at 1000.

8 . Other circuits that have addressed off-duty, non-work-related speech have concluded that balancing is the appropriate method to resolve the public employee’s First Amendment claims. See Melzer v. Bd. of Educ. of N.Y., 336 F.3d 185, 194-200 (2d Cir.2003) (assuming that a high school teacher's membership in the North American Man/Boy Love Association touched on a matter of public concern and holding under Pickering balancing that the school was justified in terminating the teacher's employment); Pappas v. Giuliani, 290 F.3d 143, 146-48 (2d Cir.2002) (assuming that a police officer’s off-duty, anonymous mailings of racist materials were of public concern and holding under Pickering balancing that the police department was justified in firing the officer); Eberhardt v. O’Malley, 17 F.3d 1023, 1026-28 (7th Cir.1994) (holding that even if an assistant state's attorney’s novel about the criminal justice system did not touch on a matter of public concern, his employer had to show legitimate interests that outweighed the social interest in the attorney’s speech); Flanagan v. Munger, 890 F.2d 1557, 1562-67 (10th Cir.1989) (holding that the public concern test did not apply to the sale of sexually explicit, non-obscene videos by police officers because the expressive conduct did not occur at work and was not about work, and that Pickering balancing tipped in the officers’ favor).

9 . Contrary to the dissent’s characterization, we have not established a "new definition of the public concern test.” See post at 1129. Rather, we have merely applied the public concern test to off-the-job, non-work-related speech. In doing so, we interpret "public concern” in the same way as the Supreme Court and this Circuit have in other contexts: speech that "does not relate to internal office affairs or the employee’s status as an employee.” NTEU, 513 U.S. at 480, 115 S.Ct. 1003 (O’Connor, J., concurring in relevant part and dissenting in part) (internal quotation marks omitted).

The dissent also claims that Roe himself does not assert that his videos convey speech on a matter of public concern. See post at 1127. Although Roe urges this court to adopt the Tenth Circuit's approach in Flanagan, see supra note 8, he also argues that his speech meets the public concern test. See Br. of Appellant at 26.

10 . Moreover, as the dissent recognizes, Roe was terminated in part for the content of his videos, not just disobedience for failing to take down his seller’s profile. See post at 1124-1125. Indeed, Roe has alleged that the content of his videos was the principal reason for his termination. At this procedural stage, we must accept this fact as true. See Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). The Department will have ample opportunity to prove on remand under the mixed motive analysis of Mt. Healthy that it would have fired Roe for disobedience or outside employment regardless of his expression. See Umbehr, 518 U.S. at 685, 116 S.Ct. 2361.

11 . Federal courts will not necessarily have to "sit in judgment over every adverse employment action,” as the dissent asserts. Post at 1129. Suits may still be dismissed for failure to state a claim or on summary judgment under the Pickering balancing test, which is a question of law for the court. See Bauer v. Sampson, 261 F.3d 775, 784 (9th Cir.2001).