Juan Hernandez v. City of Phoenix

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN HERNANDEZ; ARIZONA No. 21-16007
CONFERENCE OF POLICE AND
SHERIFFS, an Arizona nonprofit D.C. No.
corporation; MARK SCHWEIKERT, 2:19-cv-05365-
Plaintiffs-Appellants, MTL
V.
OPINION
CITY OF PHOENIX, a municipal
corporation; JERI WILLIAMS, in her
official capacity as Chief of Police of
the Phoenix Police Department;
SHANE DISOTELL, in his official
capacity as the Commander of the
Phoenix Police Professional
Standards Bureau,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Argued and Submitted March 10, 2022
Phoenix, Arizona
Filed August 5, 2022
2 HERNANDEZ V. CITY OF PHOENIX
Before: Richard A. Paez, Richard R. Clifton, and
Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
SUMMARY
Civil Rights
The panel affirmed in part and reversed in part the
district court’s dismissal of an action brought pursuant to
42 U.S.C. § 1983 and Arizona law alleging that: (1) the City
of Phoenix Police Department retaliated against Sergeant
Juan Hernandez in violation of his First Amendment rights
when it took steps to discipline him for posting content to his
personal Facebook profile that denigrated Muslims and
Islam; and (2) provisions of the Department’s social media
policy were overbroad and vague.
The district court rejected plaintiffs’ First Amendment
retaliation claim on the ground that Hernandez’s speech did
not address matters of public concern and was therefore not
entitled to constitutional protection under the balancing test
established in Pickering v. Board of Education of Township
High School District 205, Will County, 391 U.S. 563 (1968).
The court also rejected plaintiffs’ claim that certain
provisions of the Department’s social media policy were
facially invalid.
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HERNANDEZ V. CITY OF PHOENIX 3
Analyzing the content, form (time, place, and manner)
and context of Hernandez’s posts, the panel concluded that
the posts qualified as speech on matters of public concern.
While it was true that each of Hernandez’s posts expressed
hostility toward, and sought to denigrate or mock, a major
religious faith and its adherents, the Supreme Court has
made clear that the inappropriate or controversial character
of a statement is irrelevant to the question of whether it deals
with a matter of public concern.
Although it seemed likely that Hernandez’s posts could
impede the performance of his job duties and interfere with
the Department’s ability to effectively carry out its mission,
no evidence of actual or potential disruptive impact caused
by Hernandez’s posts was properly before the panel at this
stage of the proceedings. The panel therefore reversed the
district court’s dismissal of plaintiffs’ First Amendment
retaliation claim and his related claim under the Arizona
Constitution and remanded for further development of the
factual record.
The panel held that the district court properly rejected
plaintiffs’ facial overbreadth challenge to certain provisions
of the Department’s social media policy, except as to the
clauses prohibiting social media activity that (1) would cause
embarrassment to or discredit the Department, or (2) divulge
any information gained while in the performance of official
duties, as set forth in section 3.27.9B.(7) of the policy. In
largely agreeing with the district court, the panel noted that
most of the challenged restrictions directly promoted the
same interests that the Supreme Court has already held to be
valid bases for imposing restrictions on public employee
speech—government employers have a strong interest in
prohibiting speech by their employees that undermines the
4 HERNANDEZ V. CITY OF PHOENIX
employer’s mission or hampers the effective functioning of
the employer’s operations.
The Department, however, did not have a legitimate
interest in prohibiting speech merely because the
Department might find that speech embarrassing or
discrediting. The panel noted that virtually all speech that
lies at the core of First Amendment protection in this area—
for example, speech exposing police misconduct or
corruption—could be expected to embarrass or discredit the
Department in some way. In the absence of a developed
factual record, the panel could not conclude that plaintiffs’
facial overbreadth challenge to these clauses failed as a
matter of law. Addressing section 3.27.9B.(7) of the social
media policy, the panel held that although the Department
has a strong interest in prohibiting the disclosure of
confidential information, this section swept much more
broadly because it prohibited the disclosure of any
information gained while on the job, including information
that could expose wrongdoing or corruption. This provision
therefore could silence speech that warrants the strongest
First Amendment protection in this context. Because
plaintiffs’ challenge was resolved on the pleadings, the
Department had not yet had an opportunity to produce
evidence attempting to establish that this provision was
appropriately tailored.
The panel affirmed the district court’s rejection of
plaintiffs’ facial vagueness challenge to the same provisions
discussed above and their municipal liability claim. Like
many employment policies, the challenged provisions were
framed in broad and general terms that nonetheless provided
sufficient guidance to employees as to the types of social
media posts that are prohibited.
HERNANDEZ V. CITY OF PHOENIX 5
COUNSEL
Steven J. Serbalik (argued), Steven J. Serbalik PLC,
Scottsdale, Arizona, for Plaintiffs-Appellants.
Stephen B. Coleman (argued), Pierce Coleman PLLC,
Scottsdale, Arizona, for Defendants-Appellees.
OPINION
WATFORD, Circuit Judge:
In 2013, the City of Phoenix’s Police Department
adopted a new policy governing its employees’ use of social
media. Among other things, the policy prohibits employees
from engaging in speech on social media that would be
“detrimental to the mission and functions of the
Department,” “undermine respect or public confidence in the
Department,” or “impair working relationships” of the
Department. In 2019, the Department concluded that
Sergeant Juan Hernandez violated the policy by posting
content to his personal Facebook profile that denigrated
Muslims and Islam. When the Department took steps to
discipline Hernandez, he sued, alleging that the Department
was retaliating against him for exercising his First
Amendment right to freedom of speech.
The district court rejected Hernandez’s First
Amendment retaliation claim on the ground that his speech
did not address matters of public concern and was therefore
not entitled to constitutional protection under the balancing
test established in Pickering v. Board of Education of
Township High School District 205, Will County, 391 US.
563 (1968). The court also rejected Hernandez’s claim that
6 HERNANDEZ V. CITY OF PHOENIX
certain provisions of the Department’s social media policy
are facially invalid. We reverse the dismissal of
Hernandez’s First Amendment retaliation claim but largely
affirm the district court’s rejection of his facial challenge to
the Department’s policy.
I
With the rise in popularity of social media platforms like
Facebook and Twitter, many employers have adopted
policies regulating their employees’ use of social media. In
some instances, those policies govern not only what
employees may say when speaking while on the job, but also
what they may say when speaking in their capacity as private
citizens outside the workplace. Such policies are founded on
the recognition that what employees say on their own time
can negatively affect both an employee’s ability to perform
his or her job duties and the employer’s ability to effectively
carry out its mission.
The Phoenix Police Department promulgated a policy
governing its employees’ use of social media in August 2013
by adopting Operations Order 3.27. Titled “Social Media
Use Policy,” the order established a comprehensive set of
regulations and guidelines that apply to the use of social
media both on and off the job. The policy explicitly covers
an employee’s “personal use” of social media and, under that
heading, provides two general admonitions:
(1) “Department personnel are cautioned their speech and
related activity on social media sites may be considered a
reflection upon their position, and, in some instances, this
Department,” and (2) “Personal social media activity must
not interfere with work duties or the operation of the
Department.”
HERNANDEZ V. CITY OF PHOENIX 7
After the Department adopted the policy, Hernandez,
while off-duty, posted various news articles and memes
created by others to his personal Facebook profile. Although
he posted this content primarily to generate discussion
among his friends and family, any member of the general
public could view it. Hernandez’s Facebook profile did not
explicitly state that he worked as a Phoenix police officer,
but he posted other content, such as photos of himself in
uniform, from which that fact could be determined.
Hernandez made the four posts at issue here between
September 2013 and January 2014. Because the content of
the posts is relevant to whether they receive First
Amendment protection, we describe them briefly below and
have included copies in the appendix to this opinion.
The first post is a meme depicting a series of mugshot-
like photos of men above a caption that reads, “The most
common name for a convicted gang rapist in England ts ...
Muhammad.” Below that in smaller type is additional text
stating, “Note to the British media — these gangs are not
comprised of ‘Asians’; they are Muslims.”
The second post is a meme depicting a photo of what
appears to be a British cab driver opening the door to his cab.
The text accompanying the photo states, “You just got to
love the Brits,” followed by two paragraphs of text
describing a supposed encounter between a “devout
Muslim” and a cab driver in London:
A devout Muslim entered a black cab in
London. He curtly asked the cabbie to turn
off the radio because, as decreed by his
religious teaching, he must not listen to music
because, in the time of the prophet, there was
8 HERNANDEZ V. CITY OF PHOENIX
no music, especially Western music which is
the music of the infidel.
The cab driver politely switched off the radio,
stopped the cab and opened the door. The
Arab Muslim asked him, “What are you
doing?” The cabbie answered, “In the time
of the prophet, there were no taxis, so piss-off
[sic] and wait for a camel!”
The third post is another meme titled, “Recent
Contributions to Science by Islam.” It depicts photos of four
men to whom quotes are attributed in different fields of
science. Each of the quotes attempts to mock the supposed
contributions to science made by Islamic scholars or
scientists.
The last post is an article published by the Minority
Report Blog under the headline, “Military Pensions Cut,
Muslim Mortgages Paid By US!” Beneath the headline is a
blurb that states, “The Obama Administration cut Military
pensions but found 300 million to send to Muslim’s [sic]
overseas to help pay for their mortgages.” The record does
not contain the full text of the article, which could no longer
be accessed by the time the Department conducted its
investigation.
For more than five years, none of these posts came to the
attention of the public or caused any turmoil within the
Phoenix Police Department. That changed in June 2019
when the Plain View Project, which maintains a database of
Facebook posts from law enforcement officers across the
country, published a collection of posts from various officers
of the Phoenix Police Department. Many of the posts
reflected bias against racial or religious minorities or
HERNANDEZ V. CITY OF PHOENIX 9
contained content that would be offensive to members of
such groups. The Plain View Project’s publication of these
posts generated a firestorm of public criticism of the
Department and considerable negative media attention.
The Plain View Project’s database included 11 posts
from Hernandez. The Phoenix Police Department’s
Professional Standards Bureau conducted an internal
investigation to determine whether any of Hernandez’s posts
violated the Department’s social media policy. Its
investigation focused on the four posts described above.
During an interview with investigators, Hernandez
explained that he posted the items in question to drive
discussion about issues that were in the news at the time,
such as cultural assimilation and veterans’ benefits.
The Bureau concluded that, taken together, the four posts
violated section 3.27.9.B.(6) of the Department’s social
media policy. That provision states:
Department personnel are free to express
themselves as private citizens on social
media sites to the degree that their speech
does not impair working relationships of this
Department, are detrimental to the mission
and functions of the Department, that
undermine respect or public confidence in the
Department, cause embarrassment to the
Department or City, discredit the Department
or City, or undermine the goals and mission
of the Department or City.
The Bureau found that Hernandez’s Facebook posts
“potentially reduced or contributed to the erosion of public
trust, were inflammatory to certain groups, and/or created
dissention in the community by promoting hate, violence,
10 HERNANDEZ V. CITY OF PHOENIX
racism, bias, or beliefs inconsistent with the Phoenix Police
Department’s Purpose Statement and Guiding Values.” The
Bureau also found that Hernandez’s posts “do not align with
the distinguishing features, essential functions and required
knowledge as outlined in the City of Phoenix classification
for a Police Sergeant.” Based on the Bureau’s findings,
Hernandez faced discipline ranging from a suspension of
40 hours without pay up to termination.
Before the Department’s Disciplinary Review Board or
the Chief of Police decided what disciplinary sanction to
impose, Hernandez and the Arizona Conference of Police
and Sheriffs (known by the acronym AZCOPS) filed this
lawsuit.'_ Hernandez and AZCOPS sought a preliminary
injunction barring the defendants—the City of Phoenix, the
Chief of Police, and the Commander of the Professional
Standards Bureau—from disciplining Hernandez for his
Facebook posts. Any such disciplinary action, they argued,
would violate his First Amendment free speech rights. The
district court denied the request for a preliminary injunction
and neither plaintiff appealed.
Hernandez and AZCOPS, now joined by a third plaintiff,
Phoenix Police Department Lieutenant Mark Schweikert,
filed an amended complaint asserting three causes of action.
The first cause of action alleges a claim under 42 U.S.C.
§ 1983 on two distinct theories. Plaintiffs contend, first, that
the Department violated the First Amendment by retaliating
against Hernandez for exercising his right to freedom of
speech, and second, that certain provisions of the
! According to the complaint, Hernandez and a majority of the
Phoenix Police Department sergeants and lieutenants are members of
AZCOPS, and AZCOPS has provided legal representation to Hernandez
throughout these proceedings.
HERNANDEZ V. CITY OF PHOENIX 1]
Department’s social media policy are facially invalid under
the First Amendment because they are vague and overbroad.
Plaintiffs’ second cause of action reasserts Hernandez’s
retaliation claim under the Anzona Constitution’s First
Amendment analogue. The third cause of action appears to
allege a claim for municipal liability under a failure-to-train
theory. Plaintiffs seek damages incurred during the
Department’s investigation of Hernandez’s posts, such as
attorney’s fees; an injunction barring the Department from
imposing any form of discipline against Hernandez for his
posts; and an order enjoining further enforcement of the
provisions of the social media policy that plaintiffs contend
are facially invalid.
Defendants moved to dismiss the action under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim.
The district court granted the motion as to Hernandez’s First
Amendment retaliation claim, plaintiffs’ facial overbreadth
challenge, and the related state law claim. The court
concluded that Hernandez’s retaliation claim failed because
none of his posts addressed a matter of public concern,
which meant they were not entitled to constitutional
protection. The court rejected plaintiffs’ facial overbreadth
challenge on the ground that the Department’s social media
policy prohibited only those categories of speech that could
reasonably be expected to disrupt the Department’s mission
and operations—ends that the Supreme Court has held are
constitutionally permissible. The court did not dismiss
plaintiffs’ facial vagueness challenge given defendants’
failure to adequately brief the issue. Because that portion of
plaintiffs’ claims survived, the court also declined to dismiss
the municipal liability claim.
Discovery proceeded as to the facial vagueness
challenge alone, but the court ultimately granted defendants’
12 HERNANDEZ V. CITY OF PHOENIX
motion for summary judgment as to that claim. The court
concluded that the challenged provisions are sufficiently
clear to inform officers of “what the Policy proscribes in the
vast majority of its intended applications.” Having
determined that plaintiffs could not establish an underlying
constitutional violation, the court entered summary
judgment for defendants on plaintiffs’ remaining claim
alleging municipal liability. Following entry of final
judgment, plaintiffs timely appealed.
II
We begin by addressing the district court’s dismissal of
Hernandez’s First Amendment retaliation claim, which is
predicated on the theory that the Department violated his
right to freedom of speech by seeking to discipline him for
his Facebook posts. Our court has developed a series of five
sequential steps to analyze First Amendment retaliation
claims brought by government employees, drawn from the
tests established in Pickering and Mt. Healthy City Board of
Education v. Doyle, 429 U.S. 274 (1977): “(1) whether the
plaintiff spoke on a matter of public concern; (2) whether the
plaintiff spoke as a private citizen or public employee;
(3) whether the plaintiff's protected speech was a substantial
or motivating factor in the adverse employment action;
(4) whether the state had an adequate justification for
treating the employee differently from other members of the
general public; and (5) whether the state would have taken
the adverse employment action even absent the protected
speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.
2009). Only the steps drawn from Pickering—the first,
second, and fourth—are at issue here.
Under what has become known as the Pickering
balancing test, a government employee bears the initial
burden of showing that he spoke on a matter of public
HERNANDEZ V. CITY OF PHOENIX 13
concern and that he did so in his capacity as a private citizen,
rather than as an employee. Connick v. Myers, 461 U.S. 138,
147 (1983); Eng, 552 F.3d at 1070-71. If the employee
succeeds in making that threshold showing, his speech is
entitled to constitutional protection and “the possibility of a
First Amendment claim arises.” Garcetti v. Ceballos,
547 U.S. 410, 418 (2006). The burden then shifts to the
government employer to show that it had an adequate
justification for punishing the employee for his speech. To
sustain its burden, the employer must show that “its own
legitimate interests in performing its mission” outweigh the
employee’s right to speak freely. City of San Diego v. Roe,
543 U.S. 77, 82 (2004) (per curiam). The objective of this
framework is to strike “a balance between the interests of the
[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.” Pickering, 391 U.S. at 568.
As with any balancing test requiring the weighing of
competing interests, no hard-and-fast rules dictate where the
balance is to be struck in a particular case. But a few general
principles guide us. On one side of the balance, the Supreme
Court has held that government employers have a strong
interest in prohibiting speech by their employees that impairs
close working relationships among co-workers, impedes
performance of the speaker’s job duties, interferes with the
effective functioning of the employer’s operations, or
undermines the employer’s mission. Rankin v. McPherson,
483 U.S. 378, 388, 390 (1987); Connick, 461 U.S. at 151-
52; Pickering, 391 U.S. at 570, 572-73. Government
agencies are, after all, in the business of providing public
services, so when an employee “begins to do or say things
that detract from the agency’s effective operation, the
government employer must have some power to restrain
14 HERNANDEZ V. CITY OF PHOENIX
her.” Waters yv. Churchill, 511 U.S. 661, 675 (1994)
(plurality opinion).
On the other side of the balance, government employees
have an interest in speaking out “to bring to light actual or
potential wrongdoing or breach of public trust” within their
agencies, Connick, 461 U.S. at 148, since they are often
uniquely situated to inform the public about “government
corruption and abuse.” Dahlia v. Rodriguez, 735 F.3d 1060,
1066-67 (9th Cir. 2013) (en banc). The First Amendment
interests at stake in this context have as much to do with the
public’s right to hear what an employee has to say about
government operations as with the employee’s right to speak
freely. Roe, 543 U.S. at 82. The Supreme Court has held
that the relative value of the employee’s speech in advancing
First Amendment interests factors into the balancing
calculus, such that “the State’s burden in justifying a
particular discharge varies depending upon the nature of the
employee’s expression.” Connick, 461 U.S. at 150. The
more substantially an employee’s speech involves matters of
public concern, the weightier the government employer’s
interests must be in preventing disruption of the workplace
or impairment of the employer’s mission. /d. at 152.
In this case, the district court ruled that Hernandez’s First
Amendment retaliation claim did not survive the first step of
the analysis, as his Facebook posts did not address matters
of public concern. (No one contests that Hernandez spoke
in his capacity as a private citizen rather than as an employee
of the Phoenix Police Department when he made the posts
in question.) Whether speech addresses a matter of public
concern is an issue of law subject to de novo review. Id.at 148 n.7; Cochran v. City of Los Angeles, 222 F.3d 1195,
1200 (9th Cir. 2000).
HERNANDEZ V. CITY OF PHOENIX 15
What constitutes speech on a “matter of public concern”
remains somewhat hazy, despite the decades that have
passed since the concept was first employed. Over the years,
the Supreme Court has defined the concept in only the most
general of terms. See, e.g., Connick, 461 U.S. at 146 (“any
matter of political, social, or other concern to the
community”). The concept is useful primarily to draw a
contrast with speech that is not entitled to constitutional
protection in this context—namely, speech on “matters only
of personal interest,” such as speech addressing “a personal
employment dispute” or “complaints over internal office
affairs.” Jd. at 147, 148 n.8, 149. Most speech falling
outside that purely private realm will warrant at least some
First Amendment protection and thus will qualify as speech
on a matter of public concern for purposes of the Pickering
balancing test. Zucker v. California Department of
Education, 97 F.3d 1204, 1210 (9th Cir. 1996).?
To determine whether an employee’s speech addressed a
matter of public concern, we consider the content of the
statements, the form (time, place, and manner) of the
statements, and the context in which the statements were
made. Connick, 461 U.S. at 147-48. Analyzing those
elements here leads us to conclude that Hernandez’s
Facebook posts qualify as speech on matters of public
concern.
As for content, Hernandez’s posts assuredly did not
address an internal workplace grievance or complaints about
2 A notable exception has been speech involving pornographic
material featuring police officers, which both the Supreme Court and our
court have held does not involve speech on a matter of public concern
despite the lack of connection to any sort of internal workplace dispute.
See City of San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam); Dible
v. City of Chandler, 515 F.3d 918, 927 (9th Cir. 2008).
16 HERNANDEZ V. CITY OF PHOENIX
internal office affairs. They instead addressed matters of
social or political concern that would be of interest to others
outside the Phoenix Police Department. Even if only “a
relatively small segment of the general public” might have
been interested in the subject of Hernandez’s posts, that is
sufficient. Roe v. City and County of San Francisco,
109 F.3d 578, 585 (9th Cir. 1997).
Take the post with the article headlined “Military
Pensions Cut, Muslim Mortgages Paid By US!” That article
addressed, at least in part, the subject of government
spending priorities, which has long been regarded as a matter
of public concern. See Ulrich v. City and County of San
Francisco, 308 F.3d 968, 978-79 (9th Cir. 2002). The post
with the meme containing mugshot photos criticized the
British media for the way it was identifying men convicted
of rape in England. Subjects that receive media coverage
“almost by definition involve[] matters ‘of public concern,’”
Roe, 109 F.3d at 585, so it follows that speech criticizing the
media’s coverage of a particular subject qualifies as a matter
of public concern as well. The post with the meme about the
British cab driver at least tangentially touched on matters of
cultural assimilation and intolerance of religious differences
in British society, which again are topics of social or political
concern to some segments of the general public. And the
last post with the meme about “Recent Contributions to
Science by Islam” addressed subjects that, according to
exhibits attached to Hernandez’s complaint, received media
attention at the time and sparked heated public debate.
Both form and context also weigh in Hernandez’s favor.
Hernandez posted each of the items at issue on his own time,
outside the workplace, using his personal Facebook profile.
The intended audience of his posts was not limited to
Hernandez’s fellow employees, and the posts could be
HERNANDEZ V. CITY OF PHOENIX 17
viewed by any member of the general public. We agree with
the Fourth Circuit that “publicly posting on social media
suggests an intent to ‘communicate to the public or to
advance a political or social point of view beyond the
employment context.’” Liverman yv. City of Petersburg,
844 F.3d 400, 410 (4th Cir. 2016) (quoting Borough of
Duryea v. Guarnieri, 564 U.S. 379, 398 (2011)). The
context in which Hernandez’s posts were made also supports
the conclusion that the posts were not tied to any workplace
dispute or grievance. The exhibits attached to Hernandez’s
complaint suggest that issues relating to immigration and
cultural assimilation were topics of media attention at the
time, and Hernandez alleges that he posted the items in
question to foster discussion on those topics.
It is true that each of Hernandez’s posts expressed
hostility toward, and sought to denigrate or mock, a major
religious faith and its adherents. The Supreme Court has
made clear, however, that “[t]he inappropriate or
controversial character of a statement is irrelevant to the
question whether it deals with a matter of public concern.”
Rankin, 483 U.S. at 387 (holding that speech expressing
hope that a second attempt at assassinating the president
would prove successful qualified as speech on a matter of
public concern). Indeed, the Court has held that even overtly
hateful speech denigrating gay men as a means of protesting
the United States’ tolerance of “homosexuality in the
military” qualified as speech on a matter of public concern.
Snyder v. Phelps, 562 U.S. 443, 454-55 (2011). Speech that
expresses hostility toward racial or religious minorities may
be of particularly low First Amendment value at the next step
of the Pickering balancing test (as we note below), but its
distasteful character alone does not strip it of all First
Amendment protection.
18 HERNANDEZ V. CITY OF PHOENIX
Having concluded that Hernandez’s Facebook posts
constitute speech on matters of public concern at the first
step of the Pickering balancing test, we would ordinarily
proceed to the next step and assess whether the Phoenix
Police Department has shown an adequate justification for
punishing Hernandez’s otherwise protected speech. We
cannot do so here, however, because the district court
dismissed Hernandez’s First Amendment retaliation claim at
the motion-to-dismiss stage. The factual record before us is
therefore limited to the allegations in the amended complaint
and documents incorporated by reference. See Stoyas v.
Toshiba Corp., 896 F.3d 933, 938 (9th Cir. 2018). (In ruling
on defendants’ motion to dismiss, the district court properly
declined to consider evidence introduced during the
preliminary injunction hearing. See Fed. R. Civ. Proc. 12(d);
Courthouse News Service v. Planet, 750 F.3d 776, 780 (9th
Cir. 2014).) Although it seems likely that Hernandez’s posts
could impede the performance of his job duties and interfere
with the Phoenix Police Department’s ability to effectively
carry out its mission, no evidence of the actual or potential
disruptive impact caused by Hernandez’s posts is properly
before us at this stage of the proceedings. We therefore
reverse the district court’s dismissal of Hernandez’s First
Amendment retaliation claim and remand for further
development of the factual record.
In remanding the case, we do not mean to suggest that
the Department will face a particularly onerous burden to
3 Because we reverse the district court’s dismissal of Hernandez’s
retaliation claim, we also reverse the district court’s dismissal of his
related claim under the Arizona Constitution (Count 2). We do not
disturb the district court’s dismissal of plaintiffs’ municipal liability
claim (Count 3), as plaintiffs have not challenged dismissal of that claim
on appeal, and the claim was not adequately pleaded in any event.
HERNANDEZ V. CITY OF PHOENIX 19
justify disciplining Hernandez for his posts, given the
comparatively low value of his speech. Government
employee speech that exposes wrongdoing or corruption
within the employee’s own agency lies at “the apex of the
First Amendment” in this context. Moser v. Las Vegas
Metropolitan Police Department, 984 F.3d 900, 906 (9th
Cir. 2021). Needless to say, Hernandez’s Facebook posts
occupy a much lower rung on the First Amendment
hierarchy, and indeed they touched on matters of public
concern “in only a most limited sense.” Connick, 461 U.S.
at 154. On the other side of the scale, a police department’s
determination that an officer’s speech warrants discipline is
afforded considerable deference, see Cochran, 222 F.3d
at 1201, and police departments may permissibly consider
the special status officers occupy in the community when
deciding what limitations to place on officers’ off-duty
speech. Rankin, 483 U.S. at 390 (“The burden of caution
employees bear with respect to the words they speak will
vary with the extent of authority and public accountability
the employee’s role entails.”). Speech by a police officer
that suggests bias against racial or religious minorities can
hinder that officer’s ability to effectively perform his or her
job duties and undermine the department’s ability to
effectively carry out its mission. Locurto v. Giuliani,
447 F.3d 159, 182-83 (2d Cir. 2006).
Ii
We turn next to plaintiffs’ facial challenge to certain
provisions of the Department’s social media policy.
Plaintiffs focus much of their attack on a provision
prohibiting social media posts “that are detrimental to the
mission and functions of the Department, that undermine
respect or public confidence in the Department, could cause
embarrassment to the Department or City, discredit the
20 HERNANDEZ V. CITY OF PHOENIX
Department or City, or undermine the goals and mission of
the Department or City.” Plaintiffs contend that this
provision and provisions employing similar language should
be facially invalidated because they are unconstitutionally
overbroad and vague.
A
We largely agree with the district court’s rejection of
plaintiffs’ facial overbreadth challenge. In analyzing such
challenges in the public employment context, we apply a
modified Pickering balancing analysis that closely tracks the
test used for First Amendment retaliation claims. See United
States v. Treasury Employees, 513 U.S. 454, 466-68 (1995)
(NTEU). We first ask whether the challenged restriction
applies to employees’ speech in their capacity as private
citizens on matters of public concern. If it does, we then ask
whether the government has an adequate justification for
treating its employees differently from other members of the
general public. Barone v. City of Springfield, 902 F.3d 1091,
1102 (9th Cir. 2018).
Because the challenge in this context targets a
prospective restriction on a broad category of expression,
rather than punishment imposed after-the-fact for a specific
instance of speech, the government bears a heavier burden
to justify the scope of the restriction. /d at 1105. The
government must show that the combined First Amendment
interests of the public and current and future employees are
outweighed by the speech’s “‘necessary impact on the actual
operation’ of the Government.” N7EU, 513 US. at 468
(quoting Pickering, 391 U.S. at 571). The harms on which
the government relies must be “real, not merely conjectural,”
and the proposed restriction must “in fact alleviate these
harms in a direct and material way.” /d. at 475 (quoting
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664
HERNANDEZ V. CITY OF PHOENIX 21
(1994)). A restriction on speech is facially overbroad if,
applying this standard, “a substantial number of its
applications are unconstitutional, judged in relation to the
[provision’s] plainly legitimate sweep.” United States v.
Stevens, 559 U.S. 460, 473 (2010) (quoting Washington
State Grange v. Washington State Republican Party,
552 US. 442, 449 n.6 (2008)).
At the first step of the analysis, defendants do not dispute
that the challenged provisions apply to employee speech on
matters of public concern made in an employee’s capacity as
a private citizen, outside the scope of official duties. That
fact is plain from the text of the policy, which applies to all
social media use by the Department’s employees, even when
off-duty. The challenged provisions are found in a section
of the policy that explicitly regulates “personal use” of social
media, and because the policy contains no subject-matter
carve outs, speech on matters of public concern will
necessarily be covered.
We next ask whether the Department has advanced an
adequate justification for the restrictions. Because the
district court dismissed plaintiffs’ facial overbreadth
challenge on the pleadings, we are again left without a
developed factual record as to the harms on which the
Department relies to justify imposition of its social media
policy. But most of the restrictions challenged here directly
promote the same interests that the Supreme Court has
already held to be valid bases for imposing restrictions on
public employee speech. As noted earlier, government
employers have a strong interest in prohibiting speech by
their employees that undermines the employer’s mission or
hampers the effective functioning of the employer’s
operations. Rankin, 483 U.S. at 388, 390; Connick, 461 U.S.
at 151-52. That interest justifies the policy’s restrictions on
22 HERNANDEZ V. CITY OF PHOENIX
social media posts that are “detrimental to the mission and
functions of the Department” or which “undermine the goals
and mission of the Department or City.” Police departments
also have a strong interest in maintaining a relationship of
trust and confidence with the communities they serve, see
Roe, 543 U.S. at 81, which justifies the policy’s restriction
on speech that would “undermine respect or public
confidence in the Department.” Given how closely these
clauses of the policy track interests that the Department may
constitutionally pursue, we cannot say that a “substantial
number” of the policy’s applications are unconstitutional,
judged in relation to the policy’s “plainly legitimate sweep.”
Stevens, 559 U.S. at 473.
We reach a different conclusion with respect to the
clauses of the policy prohibiting speech that would “cause
embarrassment to” or “discredit” the Department—most
notably the provision that states: “Employees are prohibited
from using social media in a manner that would cause
embarrassment to or discredit the Department in any way.”
We do not think plaintiffs’ facial overbreadth challenge
to these clauses may be rejected at the motion-to-dismiss
stage. The Department does not have a legitimate interest in
prohibiting speech merely because the Department might
find that speech embarrassing or discrediting, just as it does
not have a legitimate interest in prohibiting all negative or
disparaging speech about the Department. See Barone,
902 F.3d at 1105-06. The Department has a legitimate
interest in prohibiting embarrassing or discrediting speech to
the extent such speech could reasonably be expected to
disrupt the workplace, hinder the Department’s mission, or
undermine the public’s confidence in and respect for the
Department. But the social media policy already prohibits
speech generating those detrimental effects. And unlike
HERNANDEZ V. CITY OF PHOENIX 23
those more targeted prohibitions, the “embarrass” and
“discredit” clauses are entirely self-regarding and not
constrained by any demonstrable impact on the Department
or its ability to function. It is thus far from clear what
additional work the “embarrass” and “discredit” clauses
could be doing here, beyond broadening the scope of the
policy to authorize discipline for social media activity that
the Department may not have a sufficiently strong interest in
prohibiting. That is particularly concerning from an
overbreadth standpoint because virtually all speech that lies
at the core of First Amendment protection in this area—for
example, speech exposing police misconduct or
corruption—could be expected to embarrass or discredit the
Department in some way.
We do not foreclose the possibility that the Department
may be able to produce evidence at the summary judgment
stage justifying the clauses prohibiting speech that would
embarrass or discredit the Department. But in the absence
of a developed factual record, we cannot conclude that
plaintiffs’ facial overbreadth challenge to those clauses fails
as a matter of law.
Plaintiffs separately challenge section 3.27.9.B.(7) of the
social media policy, which provides that “Department
personnel may not divulge information gained while in the
performance of their official duties.” We do not think
plaintiffs’ facial overbreadth challenge to this provision can
be rejected at the motion-to-dismiss stage either. Although
the Department has a strong interest in prohibiting the
disclosure of confidential information, such as information
that could jeopardize ongoing investigations, the challenged
provision sweeps much more broadly. See Moonin v. Tice,
868 F.3d 853, 865, 867 (9th Cir. 2017). It prohibits the
disclosure of any information gained while on the job. Yet
24 HERNANDEZ V. CITY OF PHOENIX
public employees are uniquely positioned to expose
wrongdoing or corruption within their agencies precisely
because they acquire information while on the job to which
the public otherwise lacks access. A policy that prohibits
public employees from divulging any information acquired
while on the job would silence speech that warrants the
strongest First Amendment protection in this context. For
that reason, the provision challenged here “must be tailored
to protect information the government has a legitimate
interest in keeping confidential.” /d at 873. Because
plaintiffs’ challenge was resolved on the pleadings, the
Department has not yet had an opportunity to produce
evidence attempting to establish that this provision is
appropriately tailored.
In short, we hold that the district court properly rejected
plaintiffs’ facial overbreadth challenge except as to the
clauses prohibiting social media activity that (1) would cause
embarrassment to or discredit the Department or (2) divulge
any information gained while in the performance of official
duties.
B
We affirm the district court’s rejection of plaintiffs’
facial vagueness challenge to the same provisions discussed
above. To prevail on this challenge, plaintiffs must show
either that the challenged provisions fail to afford employees
“a reasonable opportunity to understand what conduct [they]
prohibit[],” or that the provisions permit “arbitrary and
discriminatory enforcement.” Hill v. Colorado, 530 U.S.
703, 732 (2000). Ifitis clear what the challenged provisions
proscribe “in the vast majority of [their] intended
applications,” they cannot be deemed unconstitutionally
vague on their face. /d. at 733 (citation omitted).
HERNANDEZ V. CITY OF PHOENIX 25
Plaintiffs argue that the Department’s social media
policy is unconstitutionally vague because the challenged
provisions offer no discernible standard that allows officers
to determine what types of social media posts would subject
them to discipline. We disagree. As discussed earlier, most
of the challenged provisions simply track the language that
the Supreme Court has used to describe the circumstances in
which government employers have a strong interest in
restricting employee speech. The provisions draw from
Supreme Court precedent to prohibit speech that
undermines, interferes with, or is detrimental to the
Department’s goals and mission and its relationship with the
public—concepts that it would be infeasible for the
Department to describe with exhaustive specificity. See
Arnett v. Kennedy, 416 U.S. 134, 161 (1974) (plurality
opinion). Like many employment policies, the challenged
provisions are framed in broad and general terms that
nonetheless provide sufficient guidance to employees as to
the types of social media posts that are prohibited. See
Waters, 511 U.S. at 673 (plurality opinion) (noting that
policies governing public employee speech may be framed
in language that might be deemed impermissibly vague if
applied to the public at large). Further, the Department
already expects employees to be familiar with and promote
its goals and mission. Plaintiffs have not demonstrated that
officers tasked with adhering to the social media policy will,
in most cases, be unable to determine whether their speech
will have a deleterious impact on the Department’s
operations.
In advancing their facial vagueness challenge, plaintiffs
rely heavily on the deposition testimony of Lieutenant Eric
Pagone, a former member of the Professional Standards
Bureau who was charged with supervising investigations
into alleged violations of the Department’s social media
26 HERNANDEZ V. CITY OF PHOENIX
policy. Pagone was asked to opine on whether hypothetical
social media posts addressing hot-button political issues,
such as abortion, would run afoul of the policy. He could
not give definitive opinions in response to the hypotheticals
posed to him, explaining that in most instances he would
need additional contextual information to make an informed
judgment. Rather than demonstrating the facial invalidity of
the Department’s policy, Pagone’s answers merely reflect
the fact that deciding whether any given social media post
violates the policy involves a heavily fact- and context-
dependent exercise that often cannot be performed with only
the bare content of a hypothetical post. In any event, as
alluded to earlier, uncertainty about the correct resolution of
edge cases “will not warrant facial invalidation if it is clear
what the [policy] proscribes ‘in the vast majority of its
intended applications.’” California Teachers Association v.
State Board of Education, 271 F.3d 1141, 1151 (9th Cir.
2001) (quoting Hill, 530 U.S. at 733). In our view, the
Department’s social media policy meets that standard.
%* %* %*
We affirm the district court’s dismissal of plaintiffs’
facial overbreadth challenge, with the two caveats noted
above. We also affirm the district court’s entry of summary
judgment for defendants on plaintiffs’ facial vagueness
challenge and their municipal liability claim. We reverse the
district court’s dismissal of Hernandez’s First Amendment
retaliation claim and his related claim under the Arizona
Constitution.
AFFIRMED in part, REVERSED in part, and
REMANDED.
The parties shall bear their own costs on appeal.
HERNANDEZ V. CITY OF PHOENIX 27
Appendix
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Ban Sharia Law in Your State-U.5. ia Like Page
September 30, 2013: @
@ Share
28 HERNANDEZ V. CITY OF PHOENIX
=
@- Juan Johnny Hernandez shared a photo. var
tS October &, 2013: @
You just got to love the Brits.
A devout Muslim entered a black cab in London. He curtly
asked the cabbie to turn off the radio because, as
decreed by his religious teaching, he must not listen to
music because, in the time of the prophet, there was no
music, especially Western music which is the music of the
infidel.
The cab driver politely switched off the radio, stopped the
cab and opened the door. The Arab Muslim asked him,
“What are you doing?" The cabbie answered, "In the time
of the prophet, there were no taxis, so piss-off and wait
for a camel!"
October 1, 2013 - Amphoe Muang Khon Kaen, Thailand
a Share
HERNANDEZ V. CITY OF PHOENIX
29
#% Juan Johnny Hernandez shared a photo.
December 24, 2013: @
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30 HERNANDEZ V. CITY OF PHOENIX
% Juan Johnny Hernandez shared a link. one
January 9, 2014-@
Military Pensions Cut, Muslim Mortgages
Paid By US!
The Obama Administration cut Military pensions but found
300 million to send to Muslim's overseas to help pay for
their mortgages
THEMINORITYREPORTBLOG.COM
& Share