Matt Moonin v. Kevin Tice

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MATT MOONIN; DONN YARNALL; No. 15-16571
ERIK LEE,
Plaintiffs-Appellees, D.C. No.
3:12-cv-00353-
v. LRH-VPC
KEVIN TICE,
Defendant-Appellant, OPINION
and
LUIS ZAPATA; STATE OF NEVADA
DEPARTMENT OF PUBLIC SAFETY,
HIGHWAY PATROL DIVISION (NHP),
Defendants.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 13, 2016
San Francisco, California
Filed August 22, 2017
2 MOONIN V. TICE
Before: Marsha S. Berzon and Mary H. Murguia, Circuit
Judges, and Frederic Block,* District Judge.
Opinion by Judge Berzon
SUMMARY**
Civil Rights
The panel affirmed the district court’s order denying
qualified immunity to defendant Nevada Highway Patrol
Major Kevin Tice and granting partial summary judgment to
appellant, a Nevada Highway Patrol officer, in an action
brought pursuant to 42 U.S.C. § 1983 asserting that a Nevada
Highway Patrol policy, announced in an email sent by
defendant Tice, violated the First Amendment.
This action arose from a dispute regarding the
management of the Nevada Highway Patrol canine drug
detection unit. Plaintiffs alleged that certain Nevada
Highway Patrol officers sought to undermine the
effectiveness of the K9 program, and that the policy
announced by Tice, prohibiting officers from discussing the
program with any non-departmental entity or person, was
designed to prevent officers from making the problems in the
K9 program known to the public.
*
The Honorable Frederic Block, United States Senior District Judge
for the Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MOONIN V. TICE 3
The panel held that sweeping policy imposed by Tice’s
email violated the First Amendment. The policy covered
speech undertaken outside the officers’ official duties and on
matters of public concern. The panel held that Tice had failed
to show any past disruptions sufficient to justify the
expansive policy, nor did he demonstrate that any harms
anticipated were real, not merely conjectural. The panel
further held that it was clearly established in 2011, when Tice
sent the email, that such a broad restriction on employee
speech could not survive First Amendment scrutiny.
Accordingly, Tice was not entitled to qualified immunity.
The panel affirmed the district court’s grant of partial
summary judgment to appellant on the First Amendment
claim after concluding that the relevant facts were not in
dispute and the legal issues were identical to those raised in
the qualified immunity analysis.
COUNSEL
Joseph F. Tartakovsky (argued), Deputy Solicitor General;
Brandon R. Price, Deputy Attorney General; Cameron P.
Vandenberg, Supervising Senior Deputy Attorney General;
Adam Paul Laxalt, Attorney General; Office of the Attorney
General, Carson City, Nevada, for Defendant-Appellant.
Kenneth J. McKenna (argued), Reno, Nevada, for Plaintiffs-
Appellees.
4 MOONIN V. TICE
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.
1
Moonin calls the prospective restriction at issue here a “prior
restraint,” a phrase that conjures up a long line of cases in which we have
held that such restraints are almost never permissible. Because Moonin’s
claim concerns a policy restricting employee speech, it is analytically
distinct from claims involving archetypical prior restraints, like
government licensing requirements affecting only citizen speech or
judicial orders forbidding certain speech by private parties. See, e.g.,
Alexander v. United States, 509 U.S. 544, 550 (1993); Forsyth Cty. v.
Nationalist Movement, 505 U.S. 123, 130 (1992); Near v. Minnesota,
283 U.S. 697, 713, 720–23 (1931). Acknowledging that different interests
are at stake here than in these cases, however, we sometimes use the
shorthand “prior restraint” because it distinguishes Moonin’s claim from
the retaliation claims that more commonly raise questions regarding the
scope of public employees’ First Amendment rights, and because cases
considering similar challenges have done so. See, e.g., Gibson v. Office
of Attorney Gen., 561 F.3d 920, 926 (9th Cir. 2009); Wolfe v. Barnhart,
446 F.3d 1096, 1105 (10th Cir. 2006).
MOONIN V. TICE 5
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
42 U.S.C. §§ 1983 and 1985, including the First Amendment
“prior restraint” claim at issue here, and named as defendants
several officers and state and municipal entities.
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.
2
There were two other plaintiffs, Donn Yarnall, the architect of the
K9 program, who died while the district court litigation was pending, and
former K9 trooper Erik Lee. Yarnall and Lee’s claims are not at issue in
this appeal. We refer to Moonin throughout this opinion as if he were the
sole plaintiff.
6 MOONIN V. TICE
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
acco mpl ished 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
MOONIN V. TICE 7
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
8 MOONIN V. TICE
the First Amendment claim and denied Tice’s cross-motion
in relevant part. Tice appealed.
Although some issues remain to be determined by the
district court,3 we have jurisdiction to review a district court’s
denial of qualified immunity to a government official. See
Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016). We
review de novo whether, viewing the facts in the light most
favorable to Moonin, Tice is entitled to qualified immunity as
a matter of law. Id. We also have jurisdiction over the
portion of the district court’s order granting Moonin partial
summary judgment on the same claim, because that ruling
rested on the same factual and legal issues as the district
court’s denial of qualified immunity to Tice and “finally and
conclusively determined all liability issues against” Tice. See
Mueller v. Auker, 576 F.3d 979, 989–90 (9th Cir. 2009). In
reviewing the district court’s order granting partial summary
judgment to Moonin, we view the facts in the light most
favorable to Tice. See id. at 991.4
3
The district court has not yet ruled on Lee’s trespass claim against
a different defendant, the amount of Moonin’s damages on his First
Amendment claim, or Moonin’s attorney fee motion on that claim.
4
Several months after Tice’s email, Moonin resigned from the K9
program, although (as of 2015) he remained employed as a trooper with
NHP. Even if we assume that Moonin’s resignation rendered moot his
claim for injunctive relief, the controversy remains live because he also
sought damages. See Powell v. McCormack, 395 U.S. 486, 497–500
(1969); Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005)
(permitting a challenge to an employee pre-clearance directive to proceed,
even though the plaintiffs were no longer subject to the challenged policy,
because the plaintiffs sought damages).
Tice also points out that Moonin’s complaint suggests he actually
engaged in speech Moonin claims is proscribed, yet was not charged with
MOONIN V. TICE 9
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, 135 S. Ct. 1765, 1774 (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, 134 S. Ct.
2369, 2374 (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, “[g]overnment
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)).
insubordination. Moonin may challenge Tice’s policy as a “prior
restraint” regardless of whether he has been punished for violating it. See
United States v. Nat’l Treasury Emps. Union (NTEU), 513 U.S. 454, 461,
465 (1995); Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370,
382 (7th Cir. 2009).
10 MOONIN V. TICE
Accordingly, government employees may be subject to some
restraints on their speech “that would be unconstitutional if
applied to the general public.” City of San Diego v. Roe,
543 U.S. 77, 80 (2004) (per curiam).
A two-step analysis derived from the Supreme Court’s
decision in Pickering v. Board of Education, 391 U.S. 563
(1968), guides our analysis of restrictions on public employee
speech. We first ask whether the restriction at issue impacts
a government employee’s speech “as a citizen on a matter of
public concern.” See Garcetti, 547 U.S. at 418. This initial
inquiry removes from First Amendment scrutiny policies
affecting only speech uttered pursuant to public employees’
official duties. See id. at 421. If the challenged speech
restriction at issue reaches expression communicated in a
government employee’s capacity “as a citizen” and includes
discussion of “matter[s] of public concern,” “[t]he question
becomes whether the relevant government entity had an
adequate justification for treating the employee differently
from any other member of the general public,” as by
disciplining or discharging him on the basis of speech. Id. at
418. “Under some factual circumstances, . . . the Pickering
balancing test can favor protected speech even where the
speech violates the employer’s written policy requiring
speech to occur through specified channels.” Robinson v.
York, 566 F.3d 817, 825 (9th Cir. 2009).
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”
MOONIN V. TICE 11
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
5
Tice maintains that he never intended the policy to reach as broadly
as Moonin claims. Tice’s intent does not define the scope of the policy.
Although intent is relevant in the retaliation context, see, e.g., Heffernan
v. City of Paterson, 136 S. Ct. 1412, 1418–19 (2016), our focus in the
prospective restraint context is on the chilling effect of the employer’s
12 MOONIN V. TICE
a. Speech as a Citizen
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
policy on employee speech, see, e.g., NTEU, 513 U.S. at 468. That
chilling effect is determined by the language of the policy—what an
employee reading the policy would think the policy requires—not what
Tice subjectively intended the email to say. See Milwaukee Police Ass’n
v. Jones, 192 F.3d 742, 748 (7th Cir. 1999) (“If the plain language of the
directives unconstitutionally restricts speech, [] good intentions cannot
vitiate that constitutional defect.”).
We note that even if Tice’s position in this litigation effectively has
retracted or placed a narrowing construction on the policy going forward,
we must still consider the policy as written in light of Moonin’s claim for
damages. See Wernsing, 423 F.3d at 745.
MOONIN V. TICE 13
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
14 MOONIN V. TICE
say that Tice’s edict affects only speech made pursuant to the
affected troopers’ official duties.6
Further, the policy included in Tice’s email seemingly
applies not only to speech intended for the media but also to
speech directed to community groups, to city and state
legislators, to state and federal officials, and even to family
members and friends. See Dahlia v. Rodriguez, 735 F.3d
1060, 1074 (9th Cir. 2013) (en banc) (stating that
communication “with individuals or entities outside of [an
employee’s] chain of command . . . [is] unlikely” to be
pursuant to the employee’s official duties). Indeed, curtailing
contact with a particular community group was Tice’s stated
intention in sending the email. That Tice’s email specifically
exempts speech to allied law-enforcement agencies and High
Intensity Drug Trafficking Area program representatives from
the prohibition on direct contact suggests that, to the extent
the policy is targeted at all, it is targeted at speech not made
pursuant to the affected troopers’ official duties.
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
6
Moonin has not challenged NHP’s pre-existing confidentiality and
pre-clearance policies, and we therefore have no occasion to opine on their
constitutionality. We do note that these confidentiality policies appear to
be considerably more narrowly focused than Tice’s pronouncement. They
concern “Division information” and “official Department business.”
Tice asserts that he intended that his email simply reiterate these
existing confidentiality policies, but his email makes no mention of them
and is much broader, referring to “all communication” regarding the K9
program rather than “Division information” or “official Department
business.”
MOONIN V. TICE 15
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,
16 MOONIN V. TICE
147–48 (1983)). Here, again, we consider all speech to which
the challenged policy applies.
We have little difficulty concluding that the policy
announced in Tice’s email reaches speech on matters of
public concern. The policy is not limited to “direct or
indirect logistics” relating to the K9 program, which Tice
identifies in his email as a subset of all speech affected by the
policy. Nor is it limited to speech concerning internal
personnel disputes. See Gibson, 561 F.3d at 925.
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
MOONIN V. TICE 17
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, but the restrictions it imposes
must be directed at speech that has some potential to affect its
operations.” Id. at 411.
18 MOONIN V. TICE
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 the public services it performs through its
employees.” Lane, 134 S. Ct. at 2377 (brackets omitted)
(quoting Pickering, 391 U.S. at 568). In balancing the
interests on each side, we consider not only the employees’
interest in speaking but also “the importance of promoting the
public’s interest in receiving the well-informed views of
government employees engaging in civic discussion.”
Garcetti, 547 U.S. at 419; see also NTEU, 513 U.S. at 468.
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”).
MOONIN V. TICE 19
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
20 MOONIN V. TICE
policies and practices . . . is a legitimate and substantial
objective.”). The likelihood of public confusion is
diminished somewhat in this case by the fact that Tice’s
directive was aimed at rank-and-file troopers, not the sort of
high-level, policy-making employees whom the public would
be likely to assume speak for the department. See Moran,
147 F.3d at 850 (“[T]he State’s interest in avoiding disruption
is enhanced when the employee asserting her right to speak
serves in a ‘confidential, policymaking, or public contact role
. . . .” (quoting Rankin v. McPherson, 483 U.S. 378, 390–91
(1987))).
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.”
MOONIN V. TICE 21
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
22 MOONIN V. TICE
message prohibits troopers from engaging in “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” (italics added).
This expansive policy does not bear a “close and rational
relationship” to the department’s legitimate interests. See
Gibson, 561 F.3d at 928.
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.
7
Tice argues that existing whistleblower protection laws made clear
that his email was not intended to reach legitimate whistleblowing. The
plain language of Tice’s email suggests otherwise, threatening those who
do not channel their concerns through the chain of command with a
declaration of insubordination and attendant punishment. That some other
law or policy might ultimately vindicate a whistleblower’s position does
not mean that the specific threat of an insubordination determination
would not chill some speech in a manner relevant to our analysis here.
MOONIN V. TICE 23
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.
24 MOONIN V. TICE
In sum, Tice has not shown any past disruption sufficient
to justify the expansive policy announced, nor has he
demonstrated that any harms anticipated “are real, not merely
conjectural, and that the regulation will in fact alleviate these
harms in a direct and material way.” See NTEU, 513 U.S. at
475 (alterations and citation omitted). We therefore hold that
the prospective speech restriction imposed by Tice’s email
violated the First Amendment.
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, 136 S. Ct. 305, 308 (2015) (per curiam)
(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
Broad principles ordinarily cannot constitute clearly
established law. White v. Pauly, 137 S. Ct. 548, 552 (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
MOONIN V. TICE 25
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
26 MOONIN V. TICE
First Amendment right Tice violated was clearly established
at the time he sent his email.
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, 168 (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
8
We emphasize that we are here considering only the clearly
established law prong of qualified immunity, not whether requiring notice
or approval of speech such as that covered by Tice’s email is
constitutionally proper.
MOONIN V. TICE 27
approval from the police commissioner before they could
proceed with the engagement, but the City rescinded the pre-
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
(1980) (per curiam), the Supreme Court enforced a CIA
employment agreement requiring agents to submit for pre-
publication approval any material relating to the agency, its
activities, or intelligence activities in general. Over a dissent
28 MOONIN V. TICE
by Justice Stevens and two of his colleagues highlighting the
First Amendment concerns inherent in such a policy, see id.
at 520 nn.9–10, 522, 526 n.17, the Court emphasized the
“extremely high degree of trust” essential to the intelligence
agency’s work, id. at 510, noting that “[t]he Government has
a compelling interest in protecting both the secrecy of
information important to our national security and the
appearance of confidentiality so essential to the effective
operation of our foreign intelligence service,” id. at 509 n.3.
In upholding the policy, the Court also credited the
government’s “[u]ndisputed evidence . . . that a CIA agent’s
violation of his obligation to submit writings about the
Agency for prepublication review impairs the CIA’s ability
to perform its statutory duties,” regardless of whether the
written material includes classified information. Id. at
512–13; see also Brown v. Glines, 444 U.S. 348, 361 (1980)
(upholding Air Force regulations requiring members of the
service to obtain approval from their commanders before
circulating petitions on Air Force bases).
In Gibson v. Office of the Attorney General, 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.
MOONIN V. TICE 29
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 v. City of New York, 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 risk of content or viewpoint censorship. Id. at
119–21.
30 MOONIN V. TICE
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 v. McNeilly, 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
MOONIN V. TICE 31
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.
9
Several district court opinions have struck down public employee
pre-clearance requirements directed at broad categories of speech intended
for the public. See, e.g., Parow v. Kinnon, 300 F. Supp. 2d 256, 266 (D.
Mass. 2004) (holding unconstitutional a policy requiring prior approval of
any public comment regarding the plans, policies, or administration of the
fire department, fires, or department business); Lauretano v. Spada, 339 F.
Supp. 2d 391, 420 (D. Conn. 2004) (applying Harman to invalidate a state
police department media policy requiring officers to obtain prior approval
before speaking to the press); Kessler v. City of Providence, 167 F. Supp.
2d 482, 490 (D.R.I. 2001) (holding unconstitutional police department
rules that potentially prohibited “all speech even remotely related to the
Police Department” to any unauthorized person unless permitted by a
supervisor); Spain v. City of Mansfield, 915 F. Supp. 919, 923 (N.D. Ohio
1996) (holding facially unconstitutional a policy requiring firefighters to
obtain prior written approval from a superior before engaging in any
public communication on matters concerning the fire department rules,
duties, policies, procedures, or practices); Fire Fighters Ass’n v. Barry,
742 F. Supp. 1182, 1194 (D.D.C. 1990) (holding unconstitutional a
requirement that firefighters obtain prior written permission from the
public affairs officer before giving interviews while on duty); Micilcavage
v. Connelie, 570 F. Supp. 975, 982 (N.D.N.Y. 1983) (invalidating a
regulation requiring members of the New York state police to obtain the
authorization of the superintendent before delivering a public address or
speech).
32 MOONIN V. TICE
Controlling case law addressing flat prohibitions on
employee speech is, and was in 2011, limited. But Supreme
Court and Ninth Circuit precedent emphatically signaled that
a policy prohibiting public discussion of matters of public
concern by employees of a particular government program,
without a countervailing showing of substantial workplace
disruption, was much too broad to be constitutional.
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
MOONIN V. TICE 33
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
34 MOONIN V. TICE
breadth comparable to Tice’s edict. The court considered a
First Amendment challenge to sheriff’s office personnel
regulations prohibiting “unauthorized public statements,”
comments by employees to reporters on any topic “that is or
could be of a controversial nature,” and comments by
employees to elected officials concerning sheriff’s office
policy or procedure. Id. The Fifth Circuit held these
regulations facially overbroad, as they “explicitly forb[ade]
acts that departmental employees have a clear constitutional
right to do.” Id.; see also Alderman v. Phila. Hous. Auth.,
496 F.2d 164, 174 (3d Cir. 1974) (holding that a
memorandum prohibiting employees of the Philadelphia
Housing Authority from discussing rental advisory board
politics with tenants violated the First Amendment, and
noting that “precious little in the case law supports the
imposition of a restraint on all the speech of public
employees, even concerning a particularized topic”).
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 (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
MOONIN V. TICE 35
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,
36 MOONIN V. TICE
the Seventh Circuit distinguished the sheriff’s department
policy from one that rendered confidential all information
“related to” the department’s official agency business. Id.;
see also Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d
1046, 1052 (7th Cir. 2008) (concluding a school’s chain-of-
command policy did “not restrict any speech protected by the
First Amendment” because it required employees to follow
the chain of command “only on matters ‘requiring
administrative attention,’ that is, issues that their job
responsibilities require them to report to a supervisor” and did
not “limit[] a staff member’s right to speak in public about
issues related to” the school); Hanneman v. Breier, 528 F.2d
750, 752, 754 (7th Cir. 1976) (stating in passing that a police
department rule requiring officers to “treat as confidential the
official business of the Department” was “clearly valid on its
face” but holding that enforcement of the policy under the
circumstances violated the First Amendment); cf. Wolfe, 446
F.3d at 1108–09 (upholding a regulation prohibiting federal
employees from receiving outside compensation for teaching,
speaking, or writing that relates to the employee’s official
duties, a ban that did not directly preclude speech); Shelton
Police Union, Inc. v. Voccola, 125 F. Supp. 2d 604, 623, 625
(D. Conn. 2001) (upholding a narrower police department
policy requiring “all formal releases to the press” to be
disseminated through the media relations officer and
prohibiting disclosure of “any information relating to pending
investigations or any information not otherwise available to
the public if such information is exempt from public
disclosure pursuant to the Freedom of Information Act”).10
10
Tice cites this Court’s unpublished memorandum disposition in
Satter v. Washington Department of Ecology, 462 F. App’x 685 (9th Cir.
2011), to support his argument that qualified immunity is warranted here.
Satter concluded that an employer was entitled to qualified immunity for
MOONIN V. TICE 37
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
imposing a restriction on an employee’s speech “during the pendency of
an investigation into her work-related conduct.” Id. at 686–87. The time-
limited and case-specific prior restraint imposed in Satter, see also, e.g.,
Farhat v. Jopke, 370 F.3d 580, 598 (6th Cir. 2004), bears little
resemblance to the unbounded restriction imposed by Tice here.
11
Of course, our analysis would be different if the existence of the
program itself was secret. But here, the program is public and its
management is the subject of significant public discussion.
12
The only disputed fact of any possible consequence is whether NHP
Lieutenant Haycox held a meeting with the troopers after Tice sent the
email. Tice was at that time Haycox’s superior. So even if Haycox
conveyed a directive different from the one embodied by the text of Tice’s
email, as he contends, it did not ameliorate the chilling effect created by
Tice’s email, which was sent directly to the troopers.
38 MOONIN V. TICE
the district court’s grant of partial summary judgment to
Moonin on the prior restraint claim.
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.