In Adams v. Cnty. of Sacramento,[1] a First Amendment retaliation case brought by a former Chief of Police, the Ninth Circuit concluded that the plaintiff’s private text messages forwarding racist images (which she allegedly complained about) from an unknown sender to friends were not protected by the First Amendment. In reaching its conclusion, the Court found that her speech was not a matter of legitimate public concern under Pickering v. Board of Education.
Background[2]
Kate Adams began working for the Sacramento County Sheriff’s Office (“Department”) in 1994. She became Chief of Police for the City of Rancho Cordova in March 2020. In 2021, she was forced to resign from that post over allegations that she sent racist messages years earlier.
On New Year’s Eve in 2013, Adams was having “a friendly, casual text message conversation” with her co-worker and then-friend, Dan Morrissey. The two were exchanging New Year’s wishes, and Adams sent videos of her children playing. At some point in the exchange, Adams sent Morrissey a text message stating, “Some rude racist just sent this!!” along with two images she had received. The record did not reveal who sent Adams the images or their motivation. Adams apparently did not know the senders. One of the images depicted a white man spraying a young black child with a hose and contained a superimposed offensive racial epithet. The other message included an image of a comedian, with superimposed text containing an offensive racial slur. Morrissey responded, “That’s not right.” Adams then replied in a message starting with, “Oh, and just in case u [sic.] think I encourage this . . .” but the remainder of the text was not in the record. That same evening, Adams texted the same images to another co-worker and then-friend, LeeAnnDra Marchese, although the record did not indicate if any messages were sent with those transmittals. Adams’s messages were not posted on social media, nor otherwise made readily discoverable by the general public. Neither message contained an intent to communicate the images to the public, nor to transmit a comment on the images to the general public.
Over the next seven years, Adams’s friendships with Marchese and Morrissey deteriorated. In 2015, Adams was promoted to Assistant Chief of Police for the City of Rancho Cordova.
In 2019, Adams was informed of potential misconduct on the part of Marchese. She forwarded the allegation to the Department’s Internal Affairs Division. After Marchese learned of Adams’s report, several anonymous misconduct complaints were lodged against Adams—none of which were found substantiated.
In July 2020, Adams filed a formal complaint of harassment and retaliation against Marchese with the County’s Equal Employment Opportunity office. During the investigation, Marchese provided print-outs of the text messages that Adams had forwarded in 2013, but did not provide the surrounding text commentary from Adams. The Department commenced an investigation of Adams. During the investigation, Morrissey provided his cell phone showing the 2013 texts. The Department then gave Adams a choice to either resign or be “terminated and publicly mischaracterized as a racist.” An attorney for the County told her that if she agreed to resign, the investigation would never become public; however, if she refused to resign, “the investigation would fuel a ‘media circus’“ in which she would be labeled a racist. Adams chose to resign in September 2021.
However, six months later, in March 2022, the President of the Sacramento chapter of the NAACP published an open letter stating that Adams had sent racially charged pictures to other Sheriff’s Department employees; the letter described the hose-spraying image and called for accountability. The Sacramento Bee then published an article repeating the open letter’s allegations. As a result, Adams resigned from her longtime adjunct teaching position at a local university, and two prospective employers ended their consideration of her.
In August 2022, Adams filed suit against the County of Sacramento, the Sheriff, and several Does, alleging claims for, inter alia, deprivation of the right to free speech under the First Amendment and First Amendment conspiracy.
After Adams amended her first complaint, the District Court dismissed the First Amendment claims with prejudice for failure to plead that the text messages constituted speech “on a matter of public concern.” The District Court held that “sen[ding] racist images, along with [Adams’s] disapproval of the images”—as Adams described it—was not speech on a matter of public concern. Adams sought certification of the partial dismissal order for interlocutory appeal, and the District Court granted certification. A motions panel of the Ninth Circuit Court of Appeals granted Adams’s petition for permission to file an interlocutory appeal.
Discussion
The Ninth Circuit Court of Appeals began by explaining that “the First Amendment prohibits government officials from subjecting individuals to ‘retaliatory actions’ after the fact for having engaged in protected speech.” Houston Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 474 (2022) (quoting Nieves v. Bartlett, 587 U.S. 391, 398 (2019)). In analyzing First Amendment retaliation claims brought by government employees, courts use the test established in Pickering v. Board of Education, 391 U.S. 563 (1968).[3] In this Pickering analysis, “…the threshold inquiry is whether the statements at issue substantially address a matter of public concern.” Roe v. City and County of San Francisco, 109 F.3d 578, 584 (9th Cir. 1997) (citing Allen v. Scribner, 812 F.2d 426, 430 (9th Cir. 1987)) ; see also City of San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam). “If . . . the speech did not address a matter of public concern, the employee simply has no First Amendment cause of action under Pickering.” Roberts v. Springfield Util. Bd., 68 F.4th 470, 474 (9th Cir. 2023) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
The Court explained that in the determination of “[w]hether an employee’s speech addresses a matter of public concern,” courts consider “the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). Courts assess whether an employee’s speech involves a matter of public concern “at the time of publication.” City of San Diego, 543 U.S. at 84. The Court first considered the content of Adams’s messages.
The Court observed that “[s]peech 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.”’” Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). “[T]he essential question is whether the speech addressed matters of ‘public’ as opposed to ‘personal’ interest.” Desrochers v. City of San Bernardino, 572 F.3d 703, 709 (9th Cir. 2009) (quoting Connick, 461 U.S. at 147). “[I]f the speech concerns information only of personal interest, ‘a federal court is not the appropriate forum’ in which to review the public agency reaction ‘absent the most unusual circumstances. ’“ Roe, 109 F.3d at 585 (quoting Connick, 461 U.S. at 147). Because “restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matters of public interest,” Snyder, 562 U.S. at 452, speech concerning only “personal interest” generally does not cross the Pickering threshold. Roe, 109 F.3d at 585. Thus, “if the communication is essentially self-interested, with no public import, then it is not of public concern.” Id. “The focus must be upon whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” Id.
The Ninth Circuit observed that speech that addresses the topic of racism as relevant to the public can involve a matter of public concern. Hernandez v. City of Phoenix, 43 F.4th 966, 978 (9th Cir. 2022). However, the Court stated that speech that complains of only private, out-of-work, offensive individual contact by unknown parties does not involve a matter of public concern. The Court found that Adams’s texts and distribution of the images spoke only of her exasperation at being sent the offensive images, which was an issue of personal concern. Whether she was privately sent offensive, racist images outside the workplace, without more, was not a matter of public concern within the meaning of Pickering. The Court noted that the content of Adams’s private communications to her friends did not protest generally applicable “policies and practices” she “conceived to be racially discriminatory in purpose or effect.” Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 413 (1979). Nor did Adams suggest her receipt of the images was connected to “wrongful governmental activity” in the Department. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 927 (9th Cir. 2004).
The Court added 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 v. McPherson, 483 U.S. 378, 387 (1987). In Hernandez, the Ninth Circuit considered the case of a police officer who was fired after posting several images that “sought to denigrate or mock” Muslims and Islam. Hernandez, 43 F.4th at 978. The Court there determined that taken alone, the images’ expressed hostility towards Muslims was insufficient to conclude that the content factor weighed in Hernandez’s favor. Instead, the Court found the images to address matters of public concern because they concerned subjects that “receive[d] media coverage” like “government spending priorities” and “touched on matters of cultural assimilation and intolerance of religious differences.” Id. In addition to their content, it was also significant in Hernandez that the statements were posted to his Facebook account, where “any member of the general public could view it.” Id. at 973. Thus, something more than discussing an offensive racial comment, communicated in a private text, is required for speech to involve a matter of public concern.
The Court also concluded that the images themselves were not “a subject of legitimate news interest.” City of San Diego, 543 US at 83-84. While Adams tried later to her texts were like “commenting on an item of political news,” the Court examined the content of the statements at the time they were made, rather than rely on an employee’s “post hoc characterizations” of their statements. Desrochers, 572 F.3d at 711. When made, Adams’s texts involved a private matter—her receipt of offensive images transmitted by an anonymous sender. There was no suggestion in her complaint that these two images were newsworthy when she forwarded them to Marchese and Morrissey. Moreover, “the fact that the incident mentioned . . . gained public interest does not mean that the [speech] itself was framed in a manner calculated to ignite that public interest.” Morris v. City of Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012). Adams made no allegation that the images were of note in her community, her job, or to the public. Nor did she suggest their circulation to her was the result of broader issues in the police department.
The Court next considered the form and content of Adams’s speech, explaining that “[w]hen assessing these two factors, [courts] look to the public or private nature of the speech, and to the speaker’s motive.” Turner v. City and County of San Francisco, 788 F.3d 1206, 1211 (9th Cir. 2015). The question as to motivation is “[W]hy did the employee speak (as best as we can tell)?” Turner, 788 F.3d at 1210 (quoting Desrochers, 572 F.3d at 715). The Court found the answer in the record, stating: “Adams received private offensive texts and complained about receiving them privately to two friends. And here, unlike the situation in Hernandez, the form of the communications was private texts not intended to be accessed by the public. Neither the form nor context of the messages indicates that Adams intended to discuss ‘matter[s] of heightened public attention’ or policy. Rankin, 483 U.S. at 386.” The Court noted that it had repeatedly expressed that the fact that private communications are directed to co-workers—rather than the public or press—cuts against a conclusion that the matter is of public concern. See Desrochers, 572 F.3d at 710; Roe, 109 F.3d at 586; Johnson, 48 F.3d at 425.
The Court noted that as stated in the complaint, Adams and Morrissey were “engaged in a friendly, casual text message conversation” where they “exchanged Happy New Year’s wishes and Ms. Adams shared videos of her children playing.” The private texts were directed only to two recipients—an extremely limited audience. Adams intended for the messages to remain private, as they only resurfaced when the recipients revealed them years later. The context—a text exchange among friends discussing their children and the holidays, free of political discourse—reinforced the fact that her texts expressed her personal adverse reaction at being sent the imagery, instead of advancing societal political debate. The form and context of the communications confirmed the Court’s conclusion that Adams’s private texts were only meant to convey a personal grievance about receiving offensive private texts to her friends in the course of social conversation, not to comment on a matter of public concern.
The Ninth Circuit Court of Appeals concluded that taken together, each Pickering factor foreclosed Adams’s claim that her speech addressed a “matter of public concern” within the meaning of Pickering. Accordingly, the Ninth Circuit affirmed the District Court’s dismissal of the First Amendment retaliation and conspiracy claims and remanded for further proceedings.
A dissenting judge stated that Adams should have the chance to hold the County accountable for its harsh reaction to her speech. The dissent maintained that the public concern test should be applied leniently in this case where Adams’s speech did not fall within the realm of workplace grievances, had no arguable impact on her employer, and touched on matters of social or political concern.
HOW THIS AFFECTS YOUR AGENCY
It is worth reminding that the private messages at issue were sent at least seven years before they were revealed by the investigation. Agencies maybe note the longevity or perhaps permanence of electronic communications, whether they were intended for private or public consumption and regardless of means and forum chosen.
Agencies may consider that this interlocutory appeal only concerned Adams’s First Amendment retaliation and conspiracy claims. The Ninth Circuit noted that Adams had other causes of action that were not resolved by the District Court, and the Court of Appeals expressed no view as to the other claims not before it. In its concluding remarks, the Court stated that Adams’s dismissal may or “may not be fair,” Connick, 461 U.S. at 146, but unfairness alone does not create the “right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 399 (2011).
In considering disciplinary matters arising from speech activities, agencies would be well served to immediately involve their retained legal counsel to assess the matter at early stages of consideration. As demonstrated by this decision, First Amendment law is very complex and involves considerable legal analysis of the details of the communication in order to arrive at the best approach to address these matters.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at (jrt@jones-mayer.com).
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[1] 2024 U.S. App. LEXIS 22846 (9th Cir. Sep. 9, 2024).
[2] The Ninth Circuit noted that for this interlocutory appeal, it accepted the allegations in the complaint as true. The Court stated it “review[s] a decision on a motion to dismiss for failure to state a claim de novo, accepting the allegations in the complaint as true and viewing them in the light most favorable to the plaintiff.” Galanti v. Nev. Dep’t of Corr., 65 F.4th 1152, 1154 (9th Cir. 2023).
[3] Under the Pickering framework, it is the plaintiff’s burden to establish that “(1) she spoke on a matter of public concern; (2) she spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.” Barone v. City of Springfield, 902 F.3d 1091, 1098 (9th Cir. 2018). “If [a plaintiff] establishes such a prima facie case, the burden shifts to the government to demonstrate that (4) it had an adequate justification for treating [the employee] differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech.” Id.