Kate Adams v. County of Sacramento

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KATE ADAMS, No. 23-15970

Plaintiff-Appellant, D.C. No.

2:22-cv-01499-

v. WBS-KJN

COUNTY OF SACRAMENTO;

SCOTT JONES, Sheriff, OPINION

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, District Judge, Presiding

Argued and Submitted May 16, 2024

San Francisco, California

Filed September 9, 2024

Before: Sidney R. Thomas, Consuelo M. Callahan, and

Gabriel P. Sanchez, Circuit Judges.

Opinion by Judge Sidney R. Thomas;

Dissent by Judge Consuelo M. Callahan

2 ADAMS V. COUNTY OF SACRAMENTO

SUMMARY *

First Amendment / Employment Retaliation

In an interlocutory appeal, the panel affirmed the district

court’s dismissal of First Amendment retaliation and

derivative conspiracy claims brought by Kate Adams, the

former Chief of Police for the City of Rancho Cordova,

alleging that she was forced to resign from her post over

allegations that while working for the Sacramento County

Sheriff’s Office she sent racist text messages.

In evaluating the First Amendment rights of a public

employee, the threshold inquiry is whether the statements at

issue substantially address a 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.

The panel examined the plain language, form, and

context of Adams’s two text messages, and held that under

the circumstances presented by this case, sending private

text messages to two friends during “a friendly, casual text

message conversation,” forwarding offensive racist spam

images, and complaining about the images does not

constitute “a matter of legitimate public concern” within the

meaning of Pickering v. Board of Education, 391 U.S. 563

(1968). Adams’s speech was one of personal interest, not

public interest. Accordingly, the panel affirmed the district

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ADAMS V. COUNTY OF SACRAMENTO 3

court’s dismissal of Adams’s First Amendment retaliation

and conspiracy claims.

Dissenting, Judge Callahan stated that Adams should

have the chance to hold the County accountable for its harsh

reaction to her speech. 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.

COUNSEL

Karin M. Sweigart (argued), Harmeet K. Dhillon, Anthony

J. Fusaro Jr., and Jeremiah D. Graham, Dhillon Law Group

Inc., San Francisco, California, for Plaintiff-Appellant.

Dylan de Wit (argued) and David Norton, Porter Scott,

Sacramento, California; for Defendants-Appellees.

OPINION

S.R. THOMAS, Circuit Judge:

In this interlocutory appeal, we consider whether sending

private text messages to two friends during “a friendly,

casual text message conversation,” forwarding offensive

racist spam images, and complaining about the images

constitutes “a matter of legitimate public concern” under

Pickering v. Board of Education, 391 U.S. 563 (1968), and

Hernandez v. City of Phoenix, 43 F.4th 966 (9th Cir. 2022).

Under the circumstances presented by this case, we conclude

4 ADAMS V. COUNTY OF SACRAMENTO

that the speech does not, and we affirm the district court’s

dismissal of the claim.

“We review 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). “Whether an

employee’s speech addresses a matter of public concern is a

pure question of law. . . .” Karl v. City of Mountlake Terrace,

678 F.3d 1062, 1069 (9th Cir. 2012). We review whether

speech addresses a matter of public concern de novo.

Hernandez, 43 F.4th at 977.

I

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.

The messages in question were sent on New Year’s Eve

in 2013 when 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 does not

reveal who sent Adams the images or their motivation.

However, from context, it appears that Adams 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

ADAMS V. COUNTY OF SACRAMENTO 5

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 . . .”

However, the remainder of the text is not in the record. On

the same evening, Adams also texted the same images to

another co-worker and then-friend, LeeAnnDra Marchese,

although the record does not reflect 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 contains an intent to communicate the

images to the public, nor to transmit a comment on the

images to the general public. The record is clear that the

messages were intended for a purely private audience of

several friends in the context of private, social exchanges

during “a friendly, casual text message conversation.”

Seven years passed without further incident. However,

during that period, 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

6 ADAMS V. COUNTY OF SACRAMENTO

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. She 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. She also claims anxiety, stress,

and depression were caused by the significant blows to her

professional career and personal reputation.

II

In August 2022, Adams filed suit against the County of

Sacramento, the Sheriff, and several Does, alleging claims

for (1) denial of procedural due process, (2) breach of

contract, (3) deprivation of the right to free speech under the

First Amendment, (4) First Amendment conspiracy,

(5) false light invasion of privacy, (6) false light conspiracy,

(7) intentional interference with prospective economic

advantage, and (8) intentional infliction of emotional

distress. The only causes of action at issue in this

ADAMS V. COUNTY OF SACRAMENTO 7

interlocutory appeal are Adams’s claim for violation of her

right to free speech under the First Amendment and her

derivative First Amendment conspiracy claim.

The district court granted the Defendants’ motion to

dismiss Adams’s first complaint for failure to state a claim,

but granted Adams leave to amend. After Adams amended

her 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 because Adams “ma[de] no allegations that her

speech concerned either racism in her community or racism

in the police department.” In its initial dismissal, the court

recognized that Adams’s speech was not on a matter of

public concern “because the speech was intended to be

private and [did] not relate to the personnel or functioning of

the Department.”

Adams timely sought certification of the partial

dismissal order for interlocutory appeal, under 28 U.S.C.

§ 1292(b). Defendants did not oppose, and the district court

granted certification. A motions panel of our Court granted

Adams’s petition for permission to file this interlocutory

appeal.

III

“[T]he 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

8 ADAMS V. COUNTY OF SACRAMENTO

government employees, we employ the familiar test

established in Pickering. 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.

“In evaluating the First Amendment rights of a public

employee, 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)).

To determine “[w]hether an employee’s speech

addresses a matter of public concern,” we 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). We 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.

ADAMS V. COUNTY OF SACRAMENTO 9

In viewing the whole record, we consider Adams’s two

text messages, the substance of the two forwarded images,

and the context of her conversations with Marchese and

Morrissey as alleged in her complaint. We address the

content, form, and context factors in turn, and we conclude

that Adams’s speech was one of personal interest, not public

interest. Therefore, her text messages do not address a

matter of public concern within the meaning of Pickering.

A

We start with the content of Adams’s messages. “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.”’” Lane v. Franks, 573 U.S. 228,

241 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 453

(2011)). The speech must involve “a subject of legitimate

news interest; that is, a subject of general interest and of

value and concern to the public at the time of publication.”

City of San Diego, 543 U.S. at 83–84. “[T]he content of the

communication must be of broader societal concern.” Roe,

109 F.3d at 585. The speech must concern “‘issues about

which information is needed or appropriate to enable the

members of society’ to make informed decisions about the

operation of their government.” McKinley v. City of Eloy,

705 F.2d 1110, 1114 (9th Cir. 1983) (quoting Thornhill v.

Alabama, 310 U.S. 88, 102 (1940) (footnote omitted)). Put

another way, as Professor Robert C. Post has explained,

cases analyzing whether speech is “of public concern” have

often followed either a “‘normative’ conception of public

concern,” or a “‘descriptive’ conception of public concern.”

Robert C. Post, The Constitutional Concept of Public

Discourse: Outrageous Opinion, Democratic Deliberation,

and Hustler Magazine v. Falwell, 103 Harv. L. Rev. 601,

10 ADAMS V. COUNTY OF SACRAMENTO

669–72 (1990). The normative approach asks whether “the

content of the speech at issue refers to matters that are

substantively relevant to the processes of democratic self-

governance.” Id. at 670. The descriptive approach requires

that the speech be “about issues that happen actually to

interest the ‘public,’ which is to say to ‘a significant number

of persons.’” Id. at 672. This First Amendment protection

is grounded in the value of “the public’s interest in receiving

the well-informed views of government employees engaging

in civic discussion.” Garcetti, 547 U.S. at 419.

“[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; see also Johnson

v. Poway Unified Sch. Dist., 658 F.3d 954, 965 (9th Cir.

2011).

In short, “if the communication is essentially self-

interested, with no public import, then it is not of public

concern.” Roe, 109 F.3d at 585. “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.; see

also Roberts, 68 F.4th at 475 (restriction on private

ADAMS V. COUNTY OF SACRAMENTO 11

communications concerning a misconduct investigation is

not a matter of public concern).

The distinction we have drawn between personal and

public interest applies even against the backdrop of

controversial issues like racism. To be sure, “protest[ing]

racial discrimination” is a matter of public concern “where

an employee speaks out as a citizen on a matter of general

concern.” Connick, 461 U.S. at 148 n.8 (citing Givhan v. W.

Line Consol. Sch. Dist., 439 U.S. 410, 415–16 (1979)).

“Disputes over racial, religious, or other such discrimination

by public officials” are a matter of public concern when they

involve the public’s “deep and abiding interest” in

“governmental conduct that affects the societal interest as a

whole.” Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917,

926–27 (9th Cir. 2004). Speech that addresses the topic of

racism as relevant to the public can involve a matter of public

concern. Hernandez, 43 F.4th at 978. However, speech that

complains of only private, out-of-work, offensive individual

contact by unknown parties does not.

There is no doubt that the images Adams received were

offensive. However, Adams’s texts and distribution of the

images speak only of her exasperation at being sent the

images, which is an issue of personal—not public—concern.

Whether she was privately sent offensive, racist images

outside the workplace, without more, is not a matter of

public concern within the meaning of Pickering. The

content of her private communications to her friends did not

protest generally applicable “policies and practices” she

“conceived to be racially discriminatory in purpose or

effect.” Givhan, 439 U.S. at 413. Nor does Adams suggest

her receipt of the images is connected to “wrongful

governmental activity” in the Department. Alpha Energy

Savers, 381 F.3d at 927.

12 ADAMS V. COUNTY OF SACRAMENTO

The substance of the images themselves does not alter

the Pickering content analysis. Indeed, “[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 this

context, our analysis in Hernandez is instructive. There, we

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. But taken

alone, the images’ expressed hostility towards Muslims was

insufficient for us to conclude that the content factor

weighed in Hernandez’s favor. Instead, we 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. Something more than discussing an offensive racial

comment, communicated in a private text, is required for

speech to involve a matter of public concern. See Lamb v.

Montrose Cnty. Sheriff’s Off., 2022 WL 487105, at *7 (10th

Cir. Feb. 17, 2022) (holding that private text messages sent

to a friend complaining about racism did not constitute “a

matter of public concern”).

Nor were the images themselves “a subject of legitimate

news interest.” City of San Diego, 543 US at 83–84. While

Adams now attempts to liken her texts to “commenting on

an item of political news,” we assess her speech at the time

it was made. Id. (noting that the assessment of whether a

matter is of public concern is made “at the time of

publication”). “We look to what the employee[] actually

ADAMS V. COUNTY OF SACRAMENTO 13

said, not what they say they said after the fact.” Desrochers,

572 F.3d at 711. We examine the content of the statements

at the time they were made, rather than rely on an

employee’s “post hoc characterizations” of their statements.

Id. at 711. And “[a] statement ‘does not attain the status of

public concern simply because its subject matter could, in

different circumstances, have been the topic of a

communication to the public that might be of general

interest.’” Leverington v. City of Colorado Springs, 643

F.3d 719, 727 (10th Cir. 2011) (quoting Salehpoor v.

Shahinpoor, 358 F.3d 782, 788 (10th Cir. 2004)).

When made, the texts involved a private matter—her

receipt of offensive images transmitted by an anonymous

sender. There is no suggestion in her complaint that these

two images were newsworthy when she forwarded them to

Marchese and Morrissey. “[T]he 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). We do not know who

sent Adams the images, and she makes no allegation that the

images were of note in her community, her job, or to the

public. Nor does she suggest their circulation to her was the

result of broader issues in the police department.

In this instance, the subject matter—private receipt of

offensive images—was also not “substantively relevant to

the processes of democratic self-governance,” Post, supra,

at 670, nor an issue that was needed to enable members of

society “to make informed decisions about the operation of

their government.” McKinley, 705 F.2d at 1114 (quoting

Thornhill, 310 U.S. at 102). The subject matter of private

forwarded offensive messages at the time the messages were

14 ADAMS V. COUNTY OF SACRAMENTO

sent was not of interest to the general public, nor “a

significant number of persons.” Post, supra, at 672.

Thus, examining the plain language of Adams’s texts

and the forwarded images, we conclude she was

commenting on a personal matter, and not making a public

comment; therefore, Adams has failed to establish the

content factor required in a Pickering First Amendment

retaliation claim.

B

We next consider the form and context of Adams’s

speech. Here, the form and context—private social texts to

a co-worker—weigh against finding her texts addressed a

matter of public concern. “When assessing these two

factors, we 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);

Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir.

1995) (“[T]he employee’s motivation and the chosen

audience are among the many factors to be considered in

light of the public’s interest in the subject matter of the

speech.”). As we have succinctly put it, 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).

Thus, it is important whether the employee sought “to

inform the public” about an issue of public concern,

Connick, 461 U.S. at 148, or “made [their remarks] in the

course of a conversation addressing . . . polic[y]” or

“matter[s] of heightened public attention.” Rankin, 483 U.S.

at 386. Statements made in a public forum may weigh in

favor of a finding that the matters discussed were “of public

concern.” For example, posting images online to “be viewed

ADAMS V. COUNTY OF SACRAMENTO 15

by any member of the general public” suggests an intent to

“foster discussion on those topics,” which is different from

speech directed to only a speaker’s “fellow employees.”

Hernandez, 43 F.4th at 978; see also Desrochers, 572 F.3d

at 715 (“Because the speech at issue took the form of internal

employee grievances which were not disseminated to the

public, this portion of the Connick test cuts against a finding

of public concern.”).

In this case, the answer to the question of “why did the

employee speak” is evident from the record: 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.

Although the speech’s form is not always “dispositive,”

a speaker’s “narrow . . . focus and limited audience weigh

against [a] claim of protected speech.” Roe, 109 F.3d at 585.

When speech is directed to a limited audience, and a

conversation personal rather than political in nature, the

form and context factors weigh against concluding that the

speech addresses a matter of public concern. See

Desrochers, 572 F.3d at 714; Roe, 109 F.3d at 585. As we

have noted on a number of occasions, 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.

16 ADAMS V. COUNTY OF SACRAMENTO

The form and context of Adams’s texts to Morrissey 1

evince nothing more than a casual private conversation

among friends. 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. And the

context—a text exchange among friends discussing their

children and the holidays, free of political discourse—

reinforces the fact that her texts express her personal adverse

reaction at being sent the imagery, instead of advancing

societal political debate. See Lamb, 2022 WL 487105, at *7.

The form and context of the communications confirm

our 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.

There is no indication in the context that she intended to

make a public comment.

IV

Taken together, each factor—content, form, and

context—forecloses Adams’s claim that her speech

addressed a “matter of public concern” within the meaning

of Pickering. Adams’s dismissal may or “may not be fair,”

Connick, 461 U.S. at 146, but unfairness alone does not

1

The totality of Adams’s conversation with Marchese is not preserved,

so we rely on her conversation with Morrissey, but Adams does not

allege anything distinct about the form or context of her texts with

Marchese that would change our analysis on these factors.

ADAMS V. COUNTY OF SACRAMENTO 17

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).

And, as we have noted, Adams has other causes of action

that were not resolved by the district court. This

interlocutory appeal only concerns her First Amendment

retaliation and conspiracy claims. We, of course, express no

view as to the other claims, which are not before us.

We affirm the decision of the district court as to the

dismissal of the First Amendment retaliation and conspiracy

claims and remand for further proceedings. We need not,

and do not, reach any other issue urged by the parties.

AFFIRMED.

CALLAHAN, Circuit Judge, dissenting:

This is not your average First Amendment retaliation

case. Kate Adams’s speech occurred outside of work, was

totally unrelated to her job, and should not have had any

impact on her employment, but did. The public concern test

was not meant to deprive public servants of all First

Amendment protection in such circumstances. Our circuit

has broadly construed the public concern test for decades.

This is a strange case in which to suddenly start applying it

strictly. Because Ms. Adams should have the chance to hold

the County accountable for its harsh reaction to her speech,

I dissent.

18 ADAMS V. COUNTY OF SACRAMENTO

I.

My colleagues and I agree on the broad strokes of the

public concern test. “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 v. Franks, 573 U.S. 228, 241

(2014) (internal quotation omitted). “Whether an

employee’s speech addresses a matter of public concern

must be determined by the content, form, and context of a

given statement, as revealed by the whole record.” Greisen

v. Hanken, 925 F.3d 1097, 1109 (9th Cir. 2019) (quoting

Connick v. Myers, 461 U.S. 138, 147–48 (1983)). A

principle the majority opinion conveniently elides is that, of

these three factors, the “content of the speech is generally the

most important.” Id. (internal quotation omitted); see

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 965 (9th

Cir. 2011) (“Of the three concerns, content is king.”).

The public concern test is a notoriously difficult one to

apply, but guidance can be found from its purpose and

origins. The test was developed to filter out clearly

unprotected speech by public employees—“namely, speech

on ‘matters only of personal interest,’ such as speech

addressing ‘a personal employment dispute’ or ‘complaints

over internal office affairs.’” Hernandez v. City of Phoenix,

43 F.4th 966, 976 (9th Cir. 2022) (quoting Connick v. Myers,

461 U.S. 138, 147, 148 n.8, 149 (1983)). Given that history,

our court has long defined “public concern” broadly to

include “almost any matter other than speech that relates to

internal power struggles within the workplace.” Tucker v.

State of Cal. Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir.

1996). Just two years ago, we reaffirmed that “[m]ost speech

ADAMS V. COUNTY OF SACRAMENTO 19

falling outside that purely private realm”—the realm of

personal employment disputes and internal complaints—

“will warrant at least some First Amendment protection and

thus will qualify as speech on a matter of public concern,”

allowing the claim to be decided on the core elements of the

Pickering framework. Hernandez, 43 F.4th at 977.

Ms. Adams’s speech here—her text messages to her

colleagues—do not fall in the realm of workplace

grievances. Indeed, as the majority acknowledges (and as

the parties agree), her texts were wholly unrelated to her job

or her employer. Accordingly, the liberally construed public

concern test should be applied leniently in this case, as I shall

explain.

A.

The public concern test was created out of recognition

that the First Amendment must apply differently to the

government when it is acting as employer, instead of acting

as sovereign. See Pickering v. Bd. of Ed. of Twp. High Sch.

Dist. 205, 391 U.S. 563, 568 (1968) (observing that the

government has “interests as an employer in regulating the

speech of its employees that differ significantly from those

it possesses in connection with regulation of the speech of

the citizenry in general”); see also Bd. of Cnty. Comm’rs,

Wabaunsee Cnty. v. Umbehr, 518 U.S. 668, 676 (1996)

(“[T]he government’s interest in achieving its goals as

effectively and efficiently as possible is elevated from a

relatively subordinate interest when it acts as sovereign to a

significant one when it acts as employer.” (quotation

omitted)). “A government entity has broader discretion to

restrict speech when it acts in its role as employer, but the

restrictions it imposes must be directed at speech that has

20 ADAMS V. COUNTY OF SACRAMENTO

some potential to affect the entity’s operations.” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006) (emphasis added).

“Pickering is based on the insight that the speech of a

public-sector employee may interfere with the effective

operation of a government office.” Janus v. Am. Fed’n of

State, Cnty., & Mun. Emps., Council 31, 585 U.S. 878, 908

(2018). Thus, when an employee’s speech is about

conditions at her job or actions by her government employer,

the government employer’s interest in self-protection is at its

zenith. Subjecting government offices to litigation every

time a disgruntled employee complains about the work

environment would seriously undermine that office’s ability

to carry out its mission and serve the public. See City of San

Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). In cases

arising from internal office complaints, the public concern

test has its highest use: serving as a bulwark to deflect those

employee grievances that do not truly concern the public.

Indeed, that was the precise context that led the Supreme

Court in Connick v. Myers, 461 U.S. 138 (1983), to first

make the public concern inquiry an explicit threshold test.

In Connick, an assistant district attorney sought First

Amendment protection after being discharged for circulating

an intraoffice survey/questionnaire in response to being

transferred against her wishes. Id. at 140–41. The Court

held that the bulk of the questionnaire was “most accurately

characterized as an employee grievance concerning internal

office policy.” Id. at 154. The Court reasoned that the

assistant district attorney “did not seek to inform the public

that the District Attorney’s office was not discharging its

governmental responsibilities,” nor did she “seek to bring to

light actual or potential wrongdoing or breach of public

trust” by the office. Id. at 148.

ADAMS V. COUNTY OF SACRAMENTO 21

This focus on what might generally be called

“whistleblowing” against government actors takes center

stage in many of our court’s cases applying the public

concern test, including those cited by the majority. See, e.g.,

Desrochers v. City of San Bernardino, 572 F.3d 703, 712

(9th Cir. 2009) (citing absence of “allegations of conduct

amounting to ‘actual or potential wrongdoing or breach of

public trust’” (quoting Connick, 461 U.S. at 148)); Roe v.

City & Cnty. of San Francisco (“Roe v. S.F.”), 109 F.3d 578,

585 (9th Cir. 1997) (“Public employee speech is ‘of public

concern’ if it helps citizens ‘to make informed decisions

about the operation of their government.’” (quoting

McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.

1983)). In rejecting Ms. Adams’s claims, the majority relies

heavily on the absence of indicia of whistleblowing—

emphasizing that her texts were neither about wrongdoing

by the Sheriff’s Department nor sharing information that

would enable informed decisions about the Department’s

operation.

But in imposing a supposed whistleblowing requirement,

the majority considers only cases that, like Connick, have

applied the public concern test to speech that occurred at

work or about work. See Roberts v. Springfield Util. Bd., 68

F.4th 470, 472, 475 (9th Cir. 2023) (prohibiting employee

from speaking about his own alleged violation of employer’s

policies during internal investigation); Desrochers, 572 F.3d

at 712–19 (sergeants’ internal grievances against superiors);

Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 925–27

(9th Cir. 2004) (testimony about discrimination by

governmental employer); Roe v. S.F., 109 F.3d 578

(officer’s memo regarding district attorneys not prosecuting

his cases); McKinley, 705 F.2d at 1112, 1114 (officer

publicly criticizing city’s withholding of annual police

22 ADAMS V. COUNTY OF SACRAMENTO

officer raises). Indeed, “public concern” jurisprudence

overall “has typically focused on employee speech that takes

place at work or that addresses the policies of the

government employer.” Roe v. City of San Diego, 356 F.3d

1108 (9th Cir. 2004), reversed on other grounds sub nom.

City of San Diego v. Roe, 543 U.S. 77 (2004).

Because employee speech at work or about work often

can be viewed as an individual employment grievance not

entitled to constitutional protection, in those cases it is

necessary to conduct a searching inquiry into the motivation

for the speech (part of its context) and the content of the

speech to ensure it is sufficiently robust to communicate

some message of interest to the broader public. That is

where our focus on some degree of whistleblowing comes

into play. The court in Desrochers, for instance, held the

plaintiff-sergeants’ internal grievances did not satisfy the

content factor because they merely involved “a personality

dispute centered on [their supervisor]’s management style”

and alleged no “actual or potential wrongdoing or breach of

public trust.” 572 F.3d at 712 (quoting Connick, 461 U.S. at

148). Coming to the opposite conclusion in McKinley, we

held the plaintiff-officer’s public criticism of the city-

employer withholding annual officer raises—something that

impacted the plaintiff’s personal working conditions—

nonetheless qualified for protection because it was about an

issue that impacted “the competency of the police force” and

its ability to efficiently perform its duties. 705 F.2d at 1114.

Alerting the public to government abuses or

mismanagement is perhaps the clearest form of speech on a

matter of public concern, but it is not the only form.

Precedent firmly establishes that speech need not involve

whistleblowing to touch on matters of public concern. Take

ADAMS V. COUNTY OF SACRAMENTO 23

another foundational Supreme Court case, Rankin v.

McPherson, 483 U.S. 378 (1987).

In Rankin, a clerical employee in a county constable’s

office was discharged “for remarking, after hearing of an

attempt on the life of [President Reagan], ‘If they go for him

again, I hope they get him.’” Id. at 379–80. (The employee

made this remark informally and privately to a co-worker at

the office after the two heard about the attempted

assassination over the office radio. Id. at 381–82.) The

Court held this remark “plainly dealt with a matter of public

concern”—reasoning that the statement “was made in the

course of a conversation addressing the policies of the

President’s administration” and “came on the heels of a news

bulletin regarding what is certainly a matter of heightened

public attention: an attempt on the life of the President.” Id.

at 386. Nowhere in its two-paragraph analysis did the Court

pause to inquire whether the employee’s off-the-cuff remark

was serving any whistleblowing purpose or conveying a

message the public would find informative. There was no

need to go there because the Court was addressing speech

whose content had nothing to do with the workplace and

therefore could not be alternatively construed as an

employee grievance.

Another clear example of the wide range of speech that

may qualify without being directed to government

(mis)conduct lies in our recent decision in Hernandez, 43

F.4th 966. There, we found a police officer’s series of

Facebook posts denigrating Muslims and Islam constituted

speech on matters of public concern. Id. at 972–73, 977. As

the majority notes, one of the four posts at issue (a link to an

article headlined “‘Military Pensions Cut, Muslim

Mortgages Paid By US!’”) addressed in some part “the

subject of government spending priorities.” Id. at 974, 978.

24 ADAMS V. COUNTY OF SACRAMENTO

None of the other three posts had any connection to

government conduct, 1 and yet we found all of them were also

speech on matters of public concern. Id. at 973–74, 977.

Contra Connick, 461 U.S. at 148 (looking for

whistleblowing intent); Roe v. S.F., 109 F.3d at 585 (looking

for speech to inform on operation of government).

Thus, although in the context of speech related to one’s

employment or employer the test often does turn on the

presence or absence of whistleblowing, the test does not

always do so beyond that context. Courts must be careful

not to allow litigants to, as the majority writes, “transform

everyday employment disputes into matters for

constitutional litigation.” Borough of Duryea v. Guarnieri,

564 U.S. 379, 399 (2011); see Connick, 461 U.S. at 154

(rejecting assistant district attorney’s claim as an “attempt to

constitutionalize the employee grievance”). But that’s just

it: Ms. Adams’s texts were not about any employment

dispute. She was texting friends about the jarring experience

of having received two racist memes, apparently out of the

blue. In cases like this one, which involve no “employment

dispute[]” or “employee grievance” to begin with, the

absence of whistleblowing content or motivation says little

about how interested the public might be in the subject of the

speech—and therefore should not factor into the equation.

1

The first was a meme asserting that “Muhammad” is “the most common

name for a convicted gang rapist in England.” Id. at 973, 984. The

second was a meme endorsing a supposed story of a British cab driver

kicking an “Arab Muslim” out of his cab for requesting that the driver

turn off the radio, in keeping with the passenger’s faith. Id. at 973–74,

984. And the third meme depicted four purported quotations by Islamic

scholars or scientists to “mock the[ir] supposed contributions to

science.” Id. at 974, 984.

ADAMS V. COUNTY OF SACRAMENTO 25

B.

Instead, we should apply the intentionally broadly

phrased test of whether the speech at issue “can be fairly

considered as relating to any matter of political, social, or

other concern to the community.” Lane, 573 U.S. at 241

(internal quotation omitted); see Connick, 461 U.S. at 146.

Under binding precedent, the answer for Ms. Adams’s text

messages is clearly yes.

Ms. Adams’s texts here bear a strong resemblance to one

of the Facebook posts held to pass the public concern test in

Hernandez, 43 F.4th 966. The second post addressed in

Hernandez was “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 . . . .” Id. at 973. The gist of the described

encounter was that the Muslim passenger asked the cab

driver to turn off the radio, and the cab driver stopped the

cab and told the “Arab Muslim” to “‘piss-off [sic] and wait

for a camel!’” Id. at 973–74. In assessing the content factor

for this post, the court held this meme “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.” Id. at 978.

In Hernandez, we did not look for any of the extra indicia

of public importance that today’s majority now piles onto the

test. Officer Hernandez’s xenophobic attempt at humor was

not “substantively relevant to the processes of democratic

self-governance.” And, while the post was public, the meme

cannot be said to have informed the public about anything—

26 ADAMS V. COUNTY OF SACRAMENTO

let alone to have helped them “to make informed decisions

about the operation of their government.” Cf. Roe v. S.F.,

109 F.3d at 585; McKinley, 705 F.2d at 1114. Nevertheless,

that post satisfied the content factor. Contrary to the

majority’s spin, this second post satisfied the content factor

simply by virtue of having addressed “matters of cultural

assimilation and intolerance of religious differences”—

without the court citing any contemporaneous media

coverage of these topics, as it had for the other three posts.

Hernandez, 43 F.4th at 978.

Given that Hernandez’s cab driver post counted as

speech on “matters of cultural assimilation and intolerance

of religious differences” satisfying the content factor, id., so

too do Ms. Adams’s texts—as speech on matters of racism.

The majority is quick to point out that Officer Hernandez’s

Facebook posts, unlike Ms. Adams’s texts, were posted to a

public platform. Id. at 973. But the public or private nature

of the communication implicates the form factor, not the

content factor. 2 See id. at 977 (noting that form factor

encompasses the statement’s “time, place, and manner”).

As Hernandez demonstrates, the majority also takes an

overly narrow view of the content of Ms. Adams’s speech,

as a factual matter. The majority insists that because Ms.

Adams’s texts were merely conveying “exasperation” at

having received offensive memes, she was voicing a purely

personal concern. Elsewhere, the majority claims it is

2

This is one of two key moments where the majority allows

considerations of form and context to bleed into its analysis of content.

In addition to emphasizing the private form of the texts to downplay their

content, the majority also double counts the lack of allegations that Ms.

Adams was participating in an ongoing discussion of racism, which goes

to context, not content.

ADAMS V. COUNTY OF SACRAMENTO 27

considering the full package of Ms. Adams’s speech: both

her two text messages and “the substance of the two

forwarded images.” But in its analysis of the content factor,

the majority suddenly forgets the images themselves. The

most egregious of the two images depicted a white man

spraying a young black child with a garden hose and the

superimposed text, “Go be a n***** somewhere else,”

without the asterisks. While Ms. Adams’s cover message

was expressing disdain for the vile racism displayed in that

image, she also sent the image itself. And under Hernandez,

that image at least tangentially touches on matters of racism.

43 F.4th at 973–74, 978 (cab driver meme); see Dodge v.

Evergreen Sch. Dist. #114, 56 F.4th 767, 777 (9th Cir. 2022)

(teacher’s hat bearing the slogan “Make America Great

Again” constituted speech on “issues such as immigration,

racism, and bigotry, which are all matters of public

concern”).

The fact that Ms. Adams may not have been advocating

for or against anything in her series of texts should not

change the content calculus, though the majority allows it to.

The majority acknowledges that speech on “the topic of

racism as relevant to the public” can satisfy the public

concern test. The majority rejects Ms. Adams’s speech here,

though, because she was “complain[ing] of only private, out-

of-work, offensive individual contact.” As explained above,

however, the lack of connection between her speech and her

work should make it easier, not harder, for Ms. Adams to

pass the public concern threshold in this non-grievance-

based case.

Moreover, even if Ms. Adams’s messages are construed

to lack advocacy, this does not foreclose satisfaction of the

content factor. The district court in Hernandez made the

same mistake the majority now makes in requiring an

28 ADAMS V. COUNTY OF SACRAMENTO

advocacy component. There, the district court had found

“no indication of [social and political] advocacy in the true

content” of the Facebook posts—rejecting Officer

Hernandez’s characterization of his posts as commentary on,

inter alia, “cultural assimilation.” Hernandez v. City of

Phoenix, 482 F. Supp. 3d 902, 914–15 (D. Ariz. 2020)

(citing Roe v. S.F., 109 F.3d at 585), aff’d in part, rev’d in

part, 43 F.4th 966 (9th Cir. 2022). In reversing the district

court’s dismissal of the retaliation claim, this court held that

the posts were in fact commentary on “cultural

assimilation,” despite the lack of accompanying advocacy. 3

Hernandez, 43 F.4th at 978.

Here, Ms. Adams’s amended complaint characterizes

her texts as “condemning racist images.” This is an entirely

fair characterization of her actual messages: first, “Some

rude racist just sent this!!”, followed by her statement

denying “encourag[ing] this.” See Connick, 461 U.S. at 146

(“fairly characterized” standard). Despite the majority’s

straw-man comparison, this is not a case of post hoc

mischaracterization like Desrochers, where the plaintiff-

sergeants tried to recast their grievances over “poor

interpersonal relationships” with superiors as speech

implicating the competency and efficiency of the police

force. 572 F.3d at 711–12. Hernandez’s acceptance of the

3

Supreme Court precedent further confirms that we look to the issue

underlying the speech, not the quality of the speech itself, in applying

the public concern test. Like the signs the Westboro Baptist Church

protestors were holding in Snyder v. Phelps, Adams’s text messages

“may fall short of refined social or political commentary,” but “the

issue[] they highlight”—racism—is unquestionably a matter of public

import. 562 U.S. 443, 454 (2011) (holding that signs stating “God Hates

the USA/Thank God for 9/11” and “God Hates Fags” highlighted

“matters of public import”).

ADAMS V. COUNTY OF SACRAMENTO 29

plaintiff’s framing of his cab driver post, 43 F.4th at 978,

dictates that we accept Ms. Adams’s equally (if not more)

justified framing of her text messages as speech about

racism. As in Hernandez, Ms. Adams’s messages

“assuredly did not address an internal workplace grievance

or complaints about internal office affairs. They instead

addressed matters of social or political concern that would

be of interest to others outside the [Rancho Cordova] Police

Department.” Id. at 977–78. That should have been the

beginning and the end of the content factor analysis.

C.

Instead of following binding circuit precedent, the

majority invents a new set of requirements for satisfying the

content factor based on Tenth Circuit cases and a 30-year-

old law review article. See Robert C. Post, The

Constitutional Concept of Public Discourse: Outrageous

Opinion, Democratic Deliberation, and Hustler Magazine v.

Falwell, 103 Harv. L. Rev. 601 (1990). With no disrespect

to Professor Post, whose work has been favorably cited in

various Ninth Circuit decisions, his writings are no substitute

for caselaw. Nevertheless, the majority seems to adopt one

of Professor Post’s descriptions of the state of “public

concern” jurisprudence (in 1990) as part of the standard for

satisfying the content factor of the public concern test. The

majority rejects the subject matter of Ms. Adams’s texts for

not being “substantively relevant to the processes of

democratic self-governance.” Post, supra, at 670. This

language has never before appeared in the opinions of this

circuit or any other. And, as previously discussed, many

First Amendment claims have gone forward without content

30 ADAMS V. COUNTY OF SACRAMENTO

that would meet that supposed standard. 4 See, e.g., Rankin,

483 U.S. 378; Hernandez, 43 F.4th 966.

The second prong of the majority’s new test rests on true

precedent, but precedent that it reads selectively. The

majority’s second prong asks whether the content of the

speech concerned “an issue that was needed to enable

members of society ‘to make informed decisions about the

operation of their government.’” Certainly, we have

acknowledged that such speech “merits the highest degree of

[F]irst [A]mendment protection.” McKinley, 705 F.2d at

1114. But that does not mean all other types of speech merit

no First Amendment protection—which is the consequence

of rejecting retaliation claims at the threshold “public

concern” stage. As McKinley itself states, this informative

requirement (like the whistleblowing discussed above) is

tied specifically to speech that could be viewed as an

employment dispute or grievance. See id. (“Speech by

public employees may be characterized as not of ‘public

concern’ when it is clear that such speech deals with

4

Indeed, Professor Post himself did not even offer this language as a

definitional standard. It comes from a section of his article stating that

“in most instances” the Supreme Court’s use of the phrase “public

concern” “signifies that the content of the speech at issue refers to

matters that are substantively relevant to the processes of democratic

self-governance.” Post, supra, at 670. The very next sentence, however,

critiques this conception of public concern as “lead[ing] directly to a

doctrinal impasse.” Id. As Post puts it, “every issue that can potentially

agitate the public is also potentially relevant to democratic self-

governance, and hence potentially of public concern.” Id.

“[C]ommunication for one purpose, such as gossip, will influence

communication for another, such as self-government.” Id. at 674. Thus,

it appears that Professor Post would have understood Ms. Adams’s texts

about the racist memes to qualify as speech substantively relevant to the

processes of democratic self-governance.

ADAMS V. COUNTY OF SACRAMENTO 31

individual personnel disputes and grievances and that the

information would be of no relevance to the public’s

evaluation of the performance of governmental agencies.”

(emphasis added)); see also Roberts, 68 F.4th at 474–75

(same); Coszalter v. City of Salem, 320 F.3d 968, 973 (9th

Cir. 2003) (same). When the discipline-triggering speech

cannot—by any stretch—be viewed as airing an individual

employee grievance, the plaintiff is not required to show that

her speech had this informative quality. See, e.g., Rankin,

483 U.S. 378; Hernandez, 43 F.4th 966.

Lacking sufficient Ninth Circuit precedent to reject Ms.

Adams’s speech, the majority turns to the Tenth Circuit for

back-up. If the Tenth Circuit applied the public concern test

comparably to our circuit’s “broad[]” and “liberal”

approach, that would be one thing. See Dodge, 56 F.4th at

777 (“What constitutes public concern is ‘defined

broadly[.]’” (quoting Ulrich v. City & Cnty. of San

Francisco, 308 F.3d 968, 978 (9th Cir. 2002)); Roe v. S.F.,

109 F.3d at 586 (“We adhere to a liberal construction of what

an issue ‘of public concern’ is under the First

Amendment.”). But it does not. Tenth Circuit courts

“construe ‘public concern’ very narrowly.” Butler v. Bd. of

Cnty. Comm’rs, 920 F.3d 651, 656 (10th Cir. 2019) (quoting

Leverington v. City of Colorado Springs, 643 F.3d 719, 727

(10th Cir. 2011)). Our court has never taken that approach,

and the majority provides no reason for its about-face.

Like the district court, the majority also relies on a

superficially similar unpublished Tenth Circuit case in

which a police officer’s text message to a friend on his

personal cellphone was held not to be speech on a matter of

public concern. See Lamb v. Montrose Cnty. Sheriff’s Off.,

No. 19-1275, 2022 WL 487105 (10th Cir. Feb. 17, 2022).

The text message sent in Lamb expressed dislike of the

32 ADAMS V. COUNTY OF SACRAMENTO

officer’s new work environment, mentioning “Racism” and

lack of professionalism. Lamb, 2022 WL 487105 at *1. The

Tenth Circuit held this was not speech on a matter of public

concern because the text was neither public nor “intended

for public dissemination” and the use of “free-floating”

terms like “Racism” without explanation did not

“sufficiently inform the issue as to be helpful to the public in

evaluating the conduct of government.” Id. at *7 (internal

quotation marks omitted). Lamb is distinct and not

persuasive, however, because of the critical difference that

the officer’s speech was expressing dissatisfaction with his

employment and employer. Like Desrochers, 572 F.3d at

712–19, Lamb relies on standards that are—or were, until

today—unique to evaluating claims based on speech that can

be construed as a workplace grievance.

II.

The majority errs in applying rules common to

workplace grievance cases to this case of speech that was

both unrelated to Ms. Adams’s work and not detrimental to

her employer. 5 The overarching interest in having a

government office fulfill its mission effectively and

efficiently is not impacted by employee speech wholly

unrelated to the job or the office. Such cases do not demand

strict gatekeeping because they carry no risk of admitting an

employee-grievance claim dressed up as a constitutional

5

When an employee’s speech is facially unrelated to her job or

employer, it might still have the potential to negatively impact her

government employer and thus qualify as related to her employment.

See, e.g., City of San Diego v. Roe, 543 U.S. 77, 81–82 (2004) (officer’s

production and dissemination of pornography linked to police force).

But here Defendants have never argued any detrimental impact from Ms.

Adams’s speech as it actually was: voicing objection to racist

commentary.

ADAMS V. COUNTY OF SACRAMENTO 33

claim. Here, Ms. Adams’s texts—in their full form and at

the time of transmission, not as later misconstrued and

selectively publicized by third parties—had no arguable

impact on her employer. Thus, the public concern test is

only loosely applicable. See Garcetti, 547 U.S. at 418

(restrictions imposed by the government as employer “must

be directed at speech that has some potential to affect the

entity’s operations”); City of San Diego, 543 U.S. at 80

(“[W]hen government employees speak or write on their

own time on topics unrelated to their employment, the

speech can have First Amendment protection, absent some

governmental justification ‘far stronger than mere

speculation’ in regulating it.” (citation omitted)).

Various courts and jurists have questioned whether the

test should apply at all to employee speech unrelated to their

employment. See, e.g., Connick, 461 U.S. at 157 (Brennan,

J., dissenting, joined by Marshall, Blackmun, Stevens, JJ.)

(noting that “[w]hen public employees engage in expression

unrelated to their employment while away from the work

place, their First Amendment rights are, of course, no

different from those of the general public,” limiting the

relevance of the public concern test in that context); Dible v.

City of Chandler, 515 F.3d 918, 927–29 (9th Cir. 2008)

(supposing without deciding “the public concern test is not

required when unrelated expressive activity takes place

away from the work setting”); id. at 932 (Canby, J.,

concurring) (“Public concern should not be a hurdle

depriving employee speech of First Amendment protection

when that speech is unrelated to the employment.”); Locurto

v. Giuliani, 447 F.3d 159, 172–75 (2d Cir. 2006) (in dicta,

discussing how Supreme Court precedent demonstrating

“the public concern test does not apply neatly as a threshold

test for expression unrelated to Government employment”).

34 ADAMS V. COUNTY OF SACRAMENTO

We need not tackle that question here. I take no issue with

the decision to apply the public concern test to these facts.

The problem is that the majority applies an inordinately

robust version of the public concern test in this case that

barely implicates its animating principles. The public

concern test does not disqualify Ms. Adams’s speech, which

was not related to her employment, from First Amendment

protection.

III.

“The public concern test was . . . intended to weed out

claims in which an adverse employment action is taken

against an employee for complaining about internal office

affairs, such as the employee’s conditions of employment or

job status.” Roe v. City of San Diego, 356 F.3d at 1115, rev’d

on other grounds. Thus, Hernandez found the form factor

weighed in the officer’s favor in part because he “posted

each of the items at issue on his own time, outside the

workplace, using his personal Facebook profile.” 43 F.4th

at 978. Whereas Hernandez recognized that these features

confirmed the non-grievance nature of the speech, today’s

majority holds these very same circumstances against Ms.

Adams. And when Hernandez considered the context factor,

its analysis remained focused on whether the surrounding

circumstances revealed a connection to a workplace

grievance. See id. (“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.”). There are

no allegations connecting Ms. Adams’s text messages to her

work or any workplace grievance. That should, at the very

least, have balanced out the other aspects of the form and

context factors on which the majority exclusively relies.

ADAMS V. COUNTY OF SACRAMENTO 35

And in the end, “content is king.” Johnson, 658 F.3d at

965. The content favors Ms. Adams because her comment

on portrayals of racism touches on a “topic[] of social or

political concern to some segments of the general public,”

Hernandez, 43 F.4th at 978, and neither her messages nor the

images “address[ed] an internal workplace grievance or

complaints about internal office affairs,” id. at 977.

Today’s decision demonstrates the real-life

consequences of adopting an overly strict approach to free

speech claims made by public employees. The majority

withholds even the possibility of First Amendment

protection for a dedicated public servant, who devoted 27

years of her life to protecting the people of Sacramento

County. The First Amendment is supposed to protect the

right to speak about political issues without fear of

retribution by the government. Yet, the County forced Ms.

Adams to resign for sharing her reaction to a meme

reflecting disturbing “issues of the day,” Weeks v. Bayer, 246

F.3d 1231, 1235 (9th Cir. 2001), and the majority says she

may not even get a foot in the courthouse door. The County

punished Ms. Adams for speech she had a right to make. At

the very least, it should have to demonstrate a justification

for doing so.

Today’s opinion revises the public concern test in a way

that deprives public employees of constitutional protection

for their non-grievance speech. But “citizens do not

surrender their First Amendment rights by accepting public

employment.” Lane, 573 U.S. at 231. Ms. Adams should

not have been forced to surrender hers.