Dible v. City of Chandler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RONALD DIBLE; MEGAN DIBLE,  No. 05-16577

husband and wife, D.C. No.

Plaintiffs-Appellants, CV-03-00249-JAT

v. ORDER

CITY OF CHANDLER, a municipality AMENDING

in the State of Arizona; CHANDLER OPINION AND

POLICE DEPARTMENT, a law CONCURRING

enforcement agency of the City of  OPINION AND

Chandler; BOBBY JOE HARRIS, DENYING

Chandler Police Chief and APPELLANT’S

husband; JUDY HARRIS, wife, PETITION FOR

Defendants-Appellees. REHEARING AND

FOR REHEARING

EN BANC AND

AMENDED

 OPINION

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Argued and Submitted

June 11, 2007—San Francisco, California

Filed September 5, 2007

Amended February 1, 2008

Before: Mary M. Schroeder, William C. Canby, Jr., and

Ferdinand F. Fernandez, Circuit Judges.

Opinion by Judge Fernandez;

Concurrence by Judge Canby

1629

1632 DIBLE v. CITY OF CHANDLER

COUNSEL

Keith M. Knowlton, Keith M. Knowlton, L.L.C., Mesa, Ari-

zona, for the plaintiffs-appellants.

Katherine E. Baker, Green & Baker, Scottsdale, Arizona, for

the defendants-appellees.

ORDER

The opinion which appears at slip op. 11501 (9th Cir. Sept.

5, 2007) is amended as follows:

(1) The first full paragraph at slip op. 11506 is hereby

revoked and the following is substituted in its place:

Ronald Dible believed, indeed most likely knew,

that his position in the disreputable sexually explicit

website business was not compatible with his posi-

tion as a police officer and risked violating the City

and Police Department rule against engaging “in

conduct which might bring discredit to the City ser-

vice.” So he took steps to cover up his participation,

and in so doing violated the rule that he could not

engage in outside employment unless he first filled

out and filed a request to engage in employment out-

side the department. He did not inform any Depart-

ment officials about it.1 He did, however, tell a few

people about it, including a fellow police officer,

whom he urged to start his own website. The officer

eventually did.

DIBLE v. CITY OF CHANDLER 1633

(2) The first full paragraph at slip op. 11511 is revoked

and the following is substituted in its place:

Of course, as the Court noted, Roe had gone out

of his way to identify himself with police work. See

id. at 81, 125 S. Ct. at 524. Perhaps that alone would

have sufficed to make his activity related to his

employment. If that were the case, it must be said

that Ronald Dible did not do what Roe did. Ronald

Dible took some pains to keep the police out of the

pictures, but because of other clues and information,

it became publicly known that he was involved and

that he was a police officer. In any event, Ronald

Dible’s attempts to conceal his activity came to

nought and do not distinguish the underlying situa-

tion in Roe. Many a rule breaker does so clandes-

tinely in the hope that his violations will not come

to light and have untoward consequences. When that

hope is dashed, the results and consequences for him

are the same as they would have been if he had bro-

ken the rules overtly. Roe overtly broke his employ-

er’s rules (outside employment and immoral

conduct) and he properly suffered the consequences

by losing his job. Ronald Dible’s discovered clan-

destine activity also broke his employer’s rules (out-

side employment and conduct that brought disrepute)

and he properly suffered the consequences by losing

his job. In addition, it can be seriously asked whether

a police officer can ever disassociate himself from

his powerful public position sufficiently to make his

speech (and other activities) entirely unrelated to that

position in the eyes of the public and his superiors.

Whether overt or temporarily hidden, Ronald Dible’s

activity had the same practical effect — it “brought

the mission of the employer and the professionalism

of its officers into serious disrepute.” Id. at 81, 125

S. Ct. at 524.

1634 DIBLE v. CITY OF CHANDLER

That said, the Court has never explicitly defined

what is or is not related, and we need not do so here.

As in Roe, the result would be the same “under

either line of cases.” Id. at 80, 125 S. Ct. at 524. The

Dibles cannot prevail. We will explain.

(3) The concurring opinion is amended as follows: Foot-

note 2 at slip op. 11527 is amended to add the word “of” after

the phrase “In light.”

With the above amendments, the panel has voted unani-

mously to deny the petition for rehearing. The petition for

rehearing en banc was circulated to the judges of the court,

and no judge requested a vote for en banc consideration.

The petition for rehearing and the petition for rehearing en

banc are DENIED.

No subsequent petition for rehearing or rehearing en banc

may be filed.

OPINION

FERNANDEZ, Circuit Judge:

Ronald and Megan Dible appeal from the district court’s

grant of summary judgment against them in their action

against the City of Chandler, Arizona, the Chandler Police

Department, and the Chandler Police Chief Bobby Joe Harris

(collectively the City). Principally, the Dibles assert that Ron-

ald Dible was a police officer whose rights under the First

Amendment to the United States Constitution were violated

when he was terminated for participating in (performing in,

recording and purveying) a sexually explicit website with his

wife. We affirm.

DIBLE v. CITY OF CHANDLER 1635

BACKGROUND

In January of 2002, the Chandler Police Department

learned that one of its officers, Ronald Dible, was running a

website featuring sexually explicit photographs and videos of

his wife. After initially placing Ronald Dible on administra-

tive leave and conducting an internal investigation into his

involvement with the website, the City terminated his

employment as a police officer.

Ronald Dible and his wife Megan Dible began running the

website in September of 2000, after Megan Dible signed a

contract with CDM Networks, which operated the website.

The Dibles then posted pictures of Megan Dible on the web-

site, under the pseudonym “Katelynn.” Those photographs

portrayed Megan Dible in various sexual poses and activities

with Ronald Dible, another woman, and inanimate objects.

The Dibles also posted, among other things, a videotape of

Megan Dible masturbating that had been filmed by Ronald

Dible. The Dibles did not intend to express any kind of mes-

sage or engage in social or political commentary through the

material they posted on their website. They participated in

those activities to make money; it was as simple as that.

The website operated as follows: Any computer user with

internet capability could access the website’s home page with-

out charge. The home page featured partially nude pictures of

Megan Dible in order to entice customers. If the user wanted

to view more pictures of Megan Dible, a fee was required, but

before the pictures could be reviewed, the user had to enter

into a purported contract with CDM Networks. Once the user

accepted the terms of the contract and paid the fee, he was

free to view the website’s sexually explicit photographs and

videos.

The Dibles also offered a CD-ROM for sale on the website.

Like the website itself, the CD-ROM featured photographs of

Megan Dible having sex with Ronald Dible, other women,

1636 DIBLE v. CITY OF CHANDLER

and inanimate objects. Although the photographs on the web-

site and the CD-ROM generally did not show Ronald Dible’s

face, one of the photographs did.

The Dibles also promoted their website by attending “bar-

meets.” The purpose of the bar-meets was to have fans of the

website meet Megan Dible, although Ronald Dible also

attended. The bar-meets, which took place at local bars, were

open to the public, and attendees were free to take photo-

graphs. They did, and sometimes posted those on their own

websites. Although some attendees knew Megan Dible only

as Katelynn, others knew her true identity. At those bar-

meets, both Megan Dible and Ronald Dible posed in sexually

suggestive ways with each other and with other people, some

of whom were partially nude. The Dibles’ photographs from

the bar-meets were compiled on a CD-ROM and were then

sold through their website.

Ronald Dible believed, indeed most likely knew, that his

position in the disreputable sexually explicit website business

was not compatible with his position as a police officer and

risked violating the City and Police Department rule against

engaging “in conduct which might bring discredit to the City

service.” So he took steps to cover up his participation, and

in so doing violated the rule that he could not engage in out-

side employment unless he first filled out and filed a request

to engage in employment outside the department. He did not

inform any Department officials about it.1 He did, however,

tell a few people about it, including a fellow police officer,

whom he urged to start his own website. The officer eventu-

ally did.

Sometime in the later part of 2001, rumors about the

Dibles’ website began circulating among members of the

department, and eventually the news of the website filtered up

1

In fact, he lied about his participation when police department people

asked.

DIBLE v. CITY OF CHANDLER 1637

to department officials. Upon learning about it, the police

chief on January 25, 2002, ordered Ronald Dible to cease all

activity with the website and placed him on administrative

leave. The chief then opened an investigation into Ronald

Dible’s involvement with the website. The investigators ques-

tioned Ronald Dible about it, and, in response, he provided

several misleading answers. After establishing that he was, in

fact, involved in the website, the investigators questioned him

about, among other things, whether he and Megan Dible had

earned money from the site, and asked to see the contract

between Megan Dible and CDM Networks.

By January 25, 2002, the press had also learned about the

website and began reporting on it in an unflattering manner.

The press reported that the website was run by the Dibles and

that he was employed as a city police officer. The record con-

tains no evidence identifying the person who alerted the press

to the website’s existence or to the Dibles’ involvement in it,

but, of course, a lot of people already knew. The result of that

publicity was disquieting to say the least. A police lieutenant

assigned to look into the situation spoke to a large number of

officers and others, found that it had severely impacted their

working situation, and declared that police officer morale “re-

ally hit bottom.”

In due course, Ronald Dible’s supervisor recommended his

dismissal. The supervisor found that Ronald Dible had vio-

lated the department’s regulation prohibiting its officers from

bringing discredit to the city service, and that Ronald Dible

had provided false answers to district investigators in the

course of their investigation. Chief Harris approved Ronald

Dible’s dismissal.

Ronald Dible then appealed that decision to the City’s

Merit Board, which conducted an evidentiary hearing. At the

hearing, several officers testified that they had been ques-

tioned and ridiculed about the website. A female officer, Amy

Hedges, testified that she was called a “porn whore” by an

1638 DIBLE v. CITY OF CHANDLER

individual she was attempting to arrest. She further testified

that she was subjected to derogatory remarks while respond-

ing to a bar fight. Specifically, when she arrived at the bar, a

patron began gyrating, told her to take off her clothes, and

harassed her about the website. Officer Hedges testified that

the patron’s comments added to the instability of an already

fluid field situation and confrontation. Another officer testi-

fied to the disrespect that he was shown after the website

became publicly known. An investigating officer, who had

interviewed many other officers, as well as other people, also

testified to the impact of the Dibles’ activity on the depart-

ment. In addition, potential police recruits questioned an offi-

cer about the website on each of the five separate recruitment

trips that she had conducted after the existence of the site

became widely known to members of the public. Assistant

Chief Joseph Gaylord testified that he believed the scandal

involving Ronald Dible’s participation in the sexually explicit

website would negatively impact the department’s efforts to

recruit female officers for years to come. Ultimately, on April

3, 2002, the Merits Board issued a recommendation affirming

the decision to discharge Ronald Dible.

Thereafter, the Dibles initiated the underlying action.2 The

district court granted summary judgment in the City’s favor

on each of the Dibles’ claims. In its order, the district court

found that, among other things, Ronald Dible’s involvement

in the website was not protected by the First Amendment.

Subsequently, the Dibles’ counsel, Keith Knowlton, filed a

motion for a new trial and filed a supplement thereto. The dis-

trict court denied the motions. This appeal ensued.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C.

2

Although the Dibles filed their action in state court, the case was later

removed to federal district court.

DIBLE v. CITY OF CHANDLER 1639

§§ 1331, 1343, 1367. We have jurisdiction pursuant to 28

U.S.C. § 1291.

We review the district court’s grant of the summary judg-

ment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.

2004).

DISCUSSION

The major issue before us is whether Ronald Dible’s First

Amendment right to freedom of speech3 was violated when he

was terminated for maintaining and participating in a sexually

explicit website with his wife, Megan Dible. In fact, for all

practical purposes, the other issues in this case hinge on the

decision of that issue. We will, therefore, consider it first and

consider the other issues raised by the Dibles thereafter.

A. Freedom of Speech

The Dibles claim that because Ronald Dible’s activities

must be treated as protected employee speech, the City

improperly terminated him. See Coszalter v. City of Salem,

320 F.3d 968, 973 (9th Cir. 2003) (setting forth elements of

a prima facie case). We disagree.

The Supreme Court recently took up the issue of employee

speech in general and conduct of the sort engaged in by Ron-

ald Dible in particular. See City of San Diego v. Roe, 543 U.S.

77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (per curiam). In

that case, a police officer with the City of San Diego, Califor-

nia, made a video of “himself stripping off a police uniform

and masturbating.” Id. at 78, 125 S. Ct. at 522. He sold copies

on eBay, under a user name of Codestud3@aol.com. Id.

While it appears that the uniform was not the specific uniform

3

We recognize that the Dibles’ conduct was more expression (nudity

and sexual activity) than speech as such. That does not change the analy-

sis.

1640 DIBLE v. CITY OF CHANDLER

worn by San Diego police officers, it was “clearly identifiable

as a police uniform,” and Roe also sold custom videos and

official “uniforms of the San Diego Police Department,”

along with other items of police equipment. Id. “Roe’s eBay

user profile identified him as employed in the field of law

enforcement.” Id. at 78, 125 S. Ct. at 523. When the police

department found out, it investigated and ultimately termi-

nated him. Id. at 78-79, 125 S. Ct. at 523. He then brought an

action in which he claimed that his First Amendment right to

freedom of speech had been violated. Id. at 79, 125 S. Ct. at

523.

The Supreme Court surveyed First Amendment law as it

related to government employees, and set forth an analytical

framework for consideration of the issue. The Court first rec-

ognized that “[a] government employee does not relinquish all

First Amendment rights otherwise enjoyed by citizens just by

reason of his or her employment.” Id. at 80, 125 S. Ct. at 523.

That said, when a government employee’s speech is under

consideration, there are two paths of analysis, depending on

whether the speech is related or unrelated to the person’s

employment. As the Court put it:

[A] governmental employer may impose certain

restraints on the speech of its employees, restraints

that would be unconstitutional if applied to the gen-

eral public. The Court has recognized the right of

employees to speak on matters of public concern,

typically matters concerning government policies

that are of interest to the public at large, a subject on

which public employees are uniquely qualified to

comment. See [Connick v. Myers, 461 U.S. 138, 103

S. Ct. 1684, 75 L. Ed. 2d 708 (1983)]; Pickering v.

Bd. of Ed. of Township High School Dist. 205, Will

County, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d

811 (1968). Outside of this category, the Court has

held that when government employees speak or

write on their own time on topics unrelated to their

DIBLE v. CITY OF CHANDLER 1641

employment, the speech can have First Amendment

protection, absent some governmental justification

“far stronger than mere speculation” in regulating it.

United States v. Treasury Employees, 513 U.S. 454,

465, 475, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995)

(NTEU). We have little difficulty in concluding that

the City was not barred from terminating Roe under

either line of cases.

Id. at 80, 125 S. Ct. at 523-24.

The Court then went on to consider whether Roe’s speech

activities were related or unrelated to his position as a police

officer with the city. It determined that Roe’s indecent activ-

ity, indeed, related to his employment. Id. at 80-82, 125 S. Ct.

at 524. In so doing, the Court observed that in NTEU the

speech in question was not only unrelated but also “had no

effect on the mission and purpose of the employer.” Id. at 80,

125 S. Ct. at 524. The Court also emphasized that in NTEU

“none of the speech at issue ‘even arguably [had] any adverse

impact’ on the employer.” Id. at 81, 125 S. Ct. at 524. It

finally pointed out that the City of San Diego had conceded

that Roe’s activities were unrelated in the sense that they were

not concerned with the “workings or functioning” of the

police department, but, it concluded:

It is quite a different question whether the speech

was detrimental to the SDPD. On that score the

City’s consistent position has been that the speech is

contrary to its regulations and harmful to the proper

functioning of the police force. The present case falls

outside the protection afforded in NTEU. The author-

ities that instead control, and which are considered

below, are this Court’s decisions in Pickering, supra,

Connick, 461 U.S. 138, 103 S. Ct. 1684, and the

decisions which follow them.

Id. at 81-82, 125 S. Ct. at 524.

1642 DIBLE v. CITY OF CHANDLER

Of course, as the Court noted, Roe had gone out of his way

to identify himself with police work. See id. at 81, 125 S. Ct.

at 524. Perhaps that alone would have sufficed to make his

activity related to his employment. If that were the case, it

must be said that Ronald Dible did not do what Roe did. Ron-

ald Dible took some pains to keep the police out of the pic-

tures, but because of other clues and information, it became

publicly known that he was involved and that he was a police

officer. In any event, Ronald Dible’s attempts to conceal his

activity came to nought and do not distinguish the underlying

situation in Roe. Many a rule breaker does so clandestinely in

the hope that his violations will not come to light and have

untoward consequences. When that hope is dashed, the results

and consequences for him are the same as they would have

been if he had broken the rules overtly. Roe overtly broke his

employer’s rules (outside employment and immoral conduct)

and he properly suffered the consequences by losing his job.

Ronald Dible’s discovered clandestine activity also broke his

employer’s rules (outside employment and conduct that

brought disrepute) and he properly suffered the consequences

by losing his job. In addition, it can be seriously asked

whether a police officer can ever disassociate himself from

his powerful public position sufficiently to make his speech

(and other activities) entirely unrelated to that position in the

eyes of the public and his superiors. Whether overt or tempo-

rarily hidden, Ronald Dible’s activity had the same practical

effect — it “brought the mission of the employer and the pro-

fessionalism of its officers into serious disrepute.” Id. at 81,

125 S. Ct. at 524.

That said, the Court has never explicitly defined what is or

is not related, and we need not do so here. As in Roe, the

result would be the same “under either line of cases.” Id. at

80, 125 S. Ct. at 524. The Dibles cannot prevail. We will

explain.

[1] (1) Related Speech. If we determined that Ronald

Dible’s activities were related to his public employment, we

DIBLE v. CITY OF CHANDLER 1643

would necessarily approach his First Amendment claim as did

the Supreme Court in Roe. It said:

To reconcile the employee’s right to engage in

speech and the government employer’s right to pro-

tect its own legitimate interests in performing its

mission, the Pickering Court adopted a balancing

test. It requires a court evaluating restraints on a pub-

lic employee’s speech to balance “the interests of the

[employee], as a citizen, in commenting upon mat-

ters 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.”

Id. at 82, 125 S. Ct. at 524-25. As the Court explained, before

an employee is even entitled to have the balancing test

applied, the “speech must touch on a matter of ‘public con-

cern.’ ” Id. at 82-83, 125 S. Ct. at 525. The Court further

pointed out: “Connick held that a public employee’s speech is

entitled to Pickering balancing only when the employee

speaks ‘as a citizen upon matters of public concern’ rather

than ‘as an employee upon matters only of personal inter-

est.’ ” Id. at 83, 125 S. Ct. at 525. And, while the borders of

the territory of public concern are not entirely defined, they

do encompass matters that are “of legitimate news interest;

that is, a subject of general interest and of value and concern

to the public at the time of publication,” and even some pri-

vate comments in the proper circumstances. Id. at 83-84, 125

S. Ct. at 525-26. So, for example, the Court has said that an

employee’s quiet statement to a fellow employee at a county

constable’s office that she hoped that a future attempt at

assassination of the President would succeed, touched on a

matter of public concern. See Rankin v. McPherson, 483 U.S.

378, 379-82, 386, 107 S. Ct. 2891, 2894-96, 2898, 97 L. Ed.

2d 315 (1987).

No matter. Whatever a periplus of the outer limits of public

concern might show, it was pellucid that Roe’s vulgar behav-

1644 DIBLE v. CITY OF CHANDLER

ior would be discovered to be outside of those borders. As the

Court said, “there is no difficulty in concluding that Roe’s

expression does not qualify as a matter of public concern

under any view of the public concern test. He fails the thresh-

old test and Pickering balancing does not come into play.”

Roe, 543 U.S. at 84, 125 S. Ct. at 526.

[2] The same is true of Ronald Dible’s activities in this

case. They did not give the public any information about the

operations, mission or function of the police department, and

were not even close to the kind of private remarks that the

Court has countenanced. His activities were simply vulgar

and indecent. They did not contribute speech on a matter of

public concern. The Dibles could not prevail if Ronald

Dible’s speech is deemed to have been related to his employ-

ment.

(2) Unrelated Speech. If we determined that Ronald

Dible’s activities were unrelated to his public employment,

we would also have to apply a balancing test. Interestingly

enough, it is not entirely clear whether the public concern

concept would be a necessary threshold to that balancing. In

Roe, id. at 80-82, 125 S. Ct. at 524, the Supreme Court did not

exactly say that the public concern concept must be consid-

ered, but it also did not expressly hold that the Court of

Appeals’ determination that public concern was part of the

test was incorrect.4 And in NTEU, 513 U.S. at 466, 115 S. Ct.

at 1013, the Court pointed out that:

Respondents’ expressive activities in this case fall

within the protected category of citizen comment on

matters of public concern rather than employee com-

ment on matters related to personal status in the

workplace. The speeches and articles for which they

received compensation in the past were addressed to

4

See Roe v. City of San Diego, 356 F.3d 1108, 1117-18 (9th Cir.), rev’d,

543 U.S. 77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (per curiam).

DIBLE v. CITY OF CHANDLER 1645

a public audience, were made outside the workplace,

and involved content largely unrelated to their gov-

ernment employment.

Moreover, in Rankin, 483 U.S. at 386, 107 S. Ct. at 2898, the

Court did indicate that a comment about the President was a

matter of public concern, but Rankin dealt with an unrelated

comment made at the workplace itself. We, however, need not

resolve whether the public concern test must be satisfied in

this instance. See Locurto v. Giuliani, 447 F.3d 159, 175 (2d

Cir. 2006).

If a statement must be one of public concern when it con-

sists of unrelated activity away from the workplace, Ronald

Dible’s conduct was no more protected than it would be if the

activity were related, and the Dibles’ claim would fail on that

account. But, suppose passing the public concern test is not

required when unrelated expressive activity takes place away

from the work setting. What then? Again, we must balance

the asserted First Amendment right against the government’s

justification. See Roe, 543 U.S. at 80, 125 S. Ct. at 524. The

Dibles’ First Amendment claim cannot survive that balance

either.

We first note that a number of Supreme Court justices have

expressed some dubiety about the strength of the protection

offered to activities that can be said to be of the same ilk as

those we deal with here, or, perhaps, of an even less indecent

ilk. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120

S. Ct. 1382, 1391, 146 L. Ed. 2d 265 (2000) (plurality opin-

ion) (stating that public nude dancing is “only within the outer

ambit of the First Amendment protection”); Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 565-66, 111 S. Ct. 2456, 2460,

115 L. Ed. 2d 504 (1991) (plurality opinion) (stating that pub-

lic nude dancing is protected but “only marginally”) How-

ever, this court has said that plurality decisions of the

Supreme Court do not make law and that “the degree of pro-

tection the first amendment affords speech does not vary with

1646 DIBLE v. CITY OF CHANDLER

the social value ascribed to that speech by the courts.” Kev,

Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir. 1986).

None of those cases is exactly like the one at hand. We are

not dealing with the rights of an ordinary citizen vis-à-vis the

government; we are dealing with the rights of a governmental

employee (a police officer at that) vis-à-vis his employer. In

this context, the reflections of the Justices about the weight of

the right to engage in public indecent activity commend them-

selves to our consideration. As Roe suggests, it is a bit diffi-

cult to give that activity the same weight as the right to

engage in political debate5 or to lecture on religion and black

history or to write articles about the environment.6 Especially

is that true where, as here, the employee admits that he was

not interested in conveying any message whatsoever and was

engaged in the indecent public activity solely for profit.

[3] In any event, the interest of the City in maintaining the

effective and efficient operation of the police department is

particularly strong. It would not seem to require an astute

moral philosopher or a brilliant social scientist to discern the

fact that Ronald Dible’s activities, when known to the public,

would be “detrimental to the mission and functions of the

employer.” Roe, 543 U.S. at 84, 125 S. Ct. at 526. And

although the government’s justification cannot be mere specu-

lation, it is entitled to rely on “reasonable predictions of dis-

ruption.” Waters v. Churchill, 511 U.S. 661, 673, 114 S. Ct.

1878, 1887, 128 L. Ed. 2d 686 (1994) (plurality opinion).

[4] Police departments, and those who work for them, are

engaged in a dangerous calling and have significant powers.

The public expects officers to behave with a high level of pro-

priety, and, unsurprisingly, is outraged when they do not do

so. The law and their own safety demands that they be given

a degree of respect, and the sleazy activities of Ronald and

5

City of Erie, 529 U.S. at 294, 120 S. Ct. at 1393-94.

6

NTEU, 513 U.S. at 461-62, 115 S. Ct. at 1010-11.

DIBLE v. CITY OF CHANDLER 1647

Megan Dible could not help but undermine that respect. Nor

is this mere speculation.

[5] Almost as soon as Ronald Dible’s indecent public activ-

ities became widely known, officers in the department began

suffering denigration from members of the public, and poten-

tial recruits questioned officers about the Dibles’ website.

Moreover, the department feared that the recruiting of female

officers would be affected because of what it seemed to say

about the climate at the department. That is not rank specula-

tion. In a similar case involving police officers’ public sexual

activities, the Eleventh Circuit Court of Appeals noted that

this kind of activity by officers, once known, could not help

but interfere with the functions and mission of the police

department because “it reflected on [deputies’] fitness as dep-

uties and undermined public confidence” in the department.

Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d

1342, 1356 (11th Cir. 2006). Just so.

We are not gallied by the Dibles’ claim that Ronald Dible

is being subjected to some kind of heckler’s veto. Worries

about a heckler’s veto have generally dealt with the restriction

of a citizen’s speech based upon the anticipated disorderly

reaction by members of an audience. See Rosenbaum v. City

and County of San Francisco, 484 F.3d 1142, 1158-59 (9th

Cir. 2007). Those worries do not directly relate to the wholly

separate area of employee activities that affect the public’s

view of a governmental agency in a negative fashion, and,

thereby, affect the agency’s mission. The Dibles’ argument

ignores the fact that the public can form a negative view of

a person due to his particular mode of expression — there is

nothing unconstitutional about that. It also ignores the unique

and sensitive position of a police department and its necessary

and constant interactions with the public. See Byrd v. Gain,

558 F.2d 553, 554 (9th Cir. 1977) (noting that police depart-

ments have special concerns regarding employees’ speech due

to the nature of their mission); see also Waters, 511 U.S. at

1648 DIBLE v. CITY OF CHANDLER

674-75, 114 S. Ct. at 1887-88 (noting government’s signifi-

cant interest in employee activity).

As the Second Circuit Court of Appeals has pointed out,

even where the unrelated expression is a matter of public con-

cern — there a comment on race relations — police officers

“are quintessentially public servants” and “part of their job is

to safeguard the public’s opinion of them.” Locurto, 447 F.3d

at 178. Thus, said the court, the actions of the police depart-

ment were not due to a heckler’s veto, but rather an example

of the government’s accounting for the public’s perception of

the officers’ actions when it considered the potential for dis-

ruption of the department’s functions. Id. at 179; see also

Rankin, 483 U.S. at 389, 107 S. Ct. at 2899 (taking particular

note of the fact that a clerical employee’s comments were not

made public and, therefore, did not discredit the constable’s

office).7

[6] In fine, whether Ronald Dible’s activities were related

to his employment or not, the City could discipline him for

those activities without violating his First Amendment rights.

Thus, the Dibles’ claim to the contrary must be rejected.

B. Right of Privacy and Freedom of Association

The Dibles also claim that their First Amendment rights to

privacy and freedom of association were violated by the City.

No doubt the First Amendment does encompass a right of pri-

vacy, whose contours include within it a right to make per-

sonal decisions and a right to keep personal matters private.

See Ferm v. United States Trustee (In Re Crawford), 194 F.3d

7

We have not overlooked Flanagan v. Munger, 890 F.2d 1557, 1566-67

(10th Cir. 1989) and Berger v. Battaglia, 779 F.2d 992, 1000-01 (4th Cir.

1985). However, to the extent that they minimize the potential for an

actual effect on the efficiency and efficacy of police department functions

arising from public perceptions of the inappropriate activities of police

officers, they are severely undermined by Roe, and we decline to follow

them.

DIBLE v. CITY OF CHANDLER 1649

954, 958 (9th Cir. 1999). It also encompasses a freedom of

association right, which includes the freedom of intimate

expression and the right to associate with others in activities

otherwise protected by the First Amendment. See Fleisher v.

City of Signal Hill, 829 F.2d 1491, 1499-1500 (9th Cir. 1987).

Neither the Dibles’ right of privacy nor their right to freedom

of association was violated here.

[7] Beyond any other considerations, there is no evidence

that the City released any information that connected the

Dibles to the website. Thus, it could not have violated their

right to privacy and intimate association by giving them

unwanted publicity.

[8] Speaking of unwanted publicity leads to the obvious

reflection that intimate as their activity may have been in one

sense, it certainly was not intimate in the sense of an activity

that they intended to hide. Megan Dible was the star of her

own show and happily displayed herself to those willing to

pay to view her, and even, as a teaser, to those who were not

yet paying. Ronald Dible, for his part, participated in the

activity, both as a performer, and as a videographer. He even

appeared in public places for the purpose of advertising the

Dibles’ activities and their products. While some believe that

when we assume the bench we enter a hibernaculum and

retreat from reality, we can see that on the facts of this case

the Dibles’ right of privacy claims are virtually oxymorons.8

[9] Moreover, to the extent that the Dibles assert that Ron-

ald Dible’s freedom of association was violated because of his

8

We recognize that Ronald Dible also asserts that inquiry into his finan-

cial interests in the website violated some asserted right of privacy. There

are some limits to a governmental entity’s investigation of its employees.

See Thorne v. City of El Segundo, 726 F.2d 459, 469-71 (9th Cir. 1983).

However, we have never gone so far as to suggest that those limits are

exceeded where, as here, the question is directly related to the employee’s

connection to an otherwise unprotected activity that affects the functions

and mission of the employer.

1650 DIBLE v. CITY OF CHANDLER

right to participate in speech activities, as we have already

explained, he did not have a right to participate in the activi-

ties at hand and avoid City discipline at the same time.

[10] In short, in a case of this nature, a governmental

employee cannot avoid the strictures of the balancing tests

that we have heretofore described by attempting to resurrect

fallen speech claims as privacy and associational claims.

Those First Amendment claims must also necessarily fall with

the Dibles’ speech claim.

C. Qualified Immunity

The Dibles also assert that the district court erred when it

decided that the City’s police chief, Bobby Joe Harris, was

entitled to qualified immunity. In considering that question

we must apply the approach delineated in Saucier v. Katz, 533

U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). That

involves a two-step process. We must first consider whether

a constitutional right was violated by the official. Id. at 201,

121 S. Ct. at 2156. If not, the inquiry ends and the official is

entitled to qualified immunity. Id. If a right was violated, we

must proceed to the second step and determine whether that

right was clearly established. Id.; see also Brosseau v. Hau-

gen, 543 U.S. 194, 198-99, 125 S. Ct. 596, 599, 160 L. Ed. 2d

583 (2004) (per curiam).

Our disposition of the Dibles’ First Amendment claims

demonstrates that Police Chief Harris did not violate the

Dibles’ constitutional rights, and that is enough to end the

inquiry. But even if we were to find a violation, we would

also be constrained to declare that because “whether a public

employee’s speech is constitutionally protected turns on a

context-intensive, case-by-case balancing analysis, the law

regarding such claims will rarely, if ever, be sufficiently

‘clearly established’ to preclude qualified immunity.” Moran

v. Washington, 147 F.3d 839, 847 (9th Cir. 1998); see also

DIBLE v. CITY OF CHANDLER 1651

Lytle v. Wondrash, 182 F.3d 1083, 1088 (9th Cir. 1999). This

would not be one of those rarities.

[11] Thus, Chief Harris was entitled to qualified immunity.

D. State Law Claims

[12] The Dibles also claim that the district court erred when

it granted summary judgment on their state law claims. It did

not.

They first assert that they should be able to pursue their

claim to right of privacy under Arizona law. See Med. Lab.

Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806,

812 (9th Cir. 2002). What we have already said about their

First Amendment privacy claim applies here also. Not only

does their claimed seclusion right overlook all that they did to

publicize and publish their activities, but also they have

wholly failed to demonstrate that the City advised the general

public about their connection to their little enterprise.

They also assert that they have been subjected to the inten-

tional infliction of emotional distress as that is described

under Arizona law. See Johnson v. McDonald, 197 Ariz. 155,

160, 3 P.2d 1075, 1080 (App. Div. 1999). In order to prevail,

they would have to show that terminating Ronald Dible

because of his indecent activities was “ ‘so outrageous in

character and so extreme in degree, as to go beyond all possi-

ble bounds of decency, and to be regarded as atrocious and

utterly intolerable in a civilized community.’ ” Mintz v. Bell

Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554, 905 P.2d 559,

563 (App. Div. 1995). Even if an error were made, just how

the mere fact of terminating Ronald Dible for his disreputable

activities could meet that standard is not apparent upon an

apercu or even upon a perscrutation of the facts of this case.

Surely, this is not one of those “extremely rare” instances

where the tort can be found to have been committed in the

employment context. Id.

1652 DIBLE v. CITY OF CHANDLER

Finally, the Dibles assert that the termination of Ronald

Dible constituted a wrongful termination within the meaning

of Arizona law. See Ariz. Rev. Stat. § 23-1501(3)(a)-(d);

Bodett v. CoxCom, Inc., 366 F.3d 736, 746 (9th Cir. 2004);

Galati v. Am. West Airlines, Inc., 205 Ariz. 290, 292, 293 n.4,

69 P.2d 1011, 1013, 1014 n.4 (App. Div. 2003). To the extent

that their claim is based upon the alleged violation of Ronald

Dible’s First Amendment rights it must, of course, fail. Like-

wise, the claim must also fail to the extent that it is intended

to be an appeal from the determination of the City’s Merit

Board on the basis that the Board abused its discretion when

it recommended affirming Ronald Dible’s termination. See

Hamilton v. City of Mesa, 185 Ariz. 420, 427-28, 916 P.2d

1136, 1143-44 (App. Div. 1995). The record clearly demon-

strates that the Board could properly determine that Ronald

Dible’s activities discredited the police department and

affected its functions.

CONCLUSION

Even though many believe that we live in anomic times, we

have not yet abandoned our social codes to the point that a

city can be sanctioned for violating a police officer’s First

Amendment rights when he causes disrespect of the police

department and its members by performing in and purveying

pictures of his and his wife’s sexually explicit activities over

the internet. The City could properly take notice of the fact

that officers and the department were vilipended. It could

react to the effects that Ronald Dible’s activities could be

expected to and did have upon the police department’s mis-

sion and functions. To paraphrase Justice Holmes:9 Ronald

Dible may have the constitutional right to run his sex oriented

business, but he has no constitutional right to be a policeman

for the City at the same time. Therefore, the Dibles’ claims

must fail.

9

See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.

517, 517 (1892).

DIBLE v. CITY OF CHANDLER 1653

AFFIRMED.

CANBY, Circuit Judge, concurring in the judgment:

I

With all due respect, I am unable to join the majority opin-

ion because I disagree with its resolution of Dible’s First

Amendment speech claim. Under the facts of this case and the

existing precedent, the police department could not discharge

Dible for his website expression without violating the First

Amendment.

I have no quarrel with some of the majority’s analysis. I

agree that, if Dible’s expressive website activity were prop-

erly characterized as employment-related, then his First

Amendment claim would fail because his expression, while

protected, was not of public concern. The majority opinion

correctly reasons that this point is established by City of San

Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam).

Dible’s website activity was not employment-related, how-

ever. As the majority opinion points out, Dible was careful

not to identify himself or his website with the police depart-

ment or with police status at all. That fact differentiates his

case from Roe. Certainly nothing in the activity Dible por-

trayed suggested a connection with the police. I am unwilling

to conclude, for reasons I will set forth below, that such unre-

lated expression becomes related to Dible’s employment sim-

ply because people who disapprove of his expression find out

that he is a policeman and make their disapproval or disdain

known to the police department in ways that could affect its

work.

As the majority opinion points out, the Supreme Court has

not, in Roe or its antecedents, made perfectly clear whether a

1654 DIBLE v. CITY OF CHANDLER

governmental employee’s expression unrelated to the employ-

ment must be of public concern to be protected. In my view

it makes little sense to impose the public concern requirement

for the protection of unrelated speech. The requirement of

public concern comes from Pickering v. Bd. of Educ., 391

U.S. 563 (1968). Its usefulness is in making an exception to

the right of a public employer to control the expression of

employees in matters relating to their employment. One way

of limiting the rule to its context, which I would follow, is to

hold that there is no requirement that an employee’s speech

that is unrelated to his employment be of public concern in

order to merit First Amendment protection. The Tenth Circuit

adopted that rule in Flanagan v. Munger, 890 F.2d 1557,

1562-64 (1989). Another way of reaching the same result is

to hold, as we did in Roe, 356 F.3d 1108, 1119 (9th Cir.),

rev’d, 543 U.S. 77 (2004), that any speech by a government

employee that is not about his employer, that occurs outside

the workplace, and is directed to a segment of the general

public, qualifies ipso facto as a matter of public concern. As

the majority opinion here recognizes, the Supreme Court did

not say this approach was incorrect when it reversed Roe.

Similarly, in Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.

1985), the Fourth Circuit held, in a case of unrelated expres-

sion, that all such expression was of public concern unless it

constituted a private personnel grievance. Either way —

whether the public concern requirement is simply dispensed

with for expression unrelated to employment, as I prefer, or

whether the public concern requirement for unrelated speech

is broadened to include virtually the universe of unrelated

speech — the outcome is the same. Public concern should not

be a hurdle depriving employee speech of First Amendment

protection when that speech is unrelated to the employment.

Now, I recognize that pornography, although apparently

popular, is not a very respected subject of First Amendment

protection in many quarters. The majority opinion here

reflects that distaste, variously characterizing Dible’s expres-

sive activities as “vulgar,” “indecent,” “sleazy,” and “disrepu-

DIBLE v. CITY OF CHANDLER 1655

table.” But vigorous enforcement of the free speech guarantee

of the First Amendment often requires that we protect speech

that many, even a majority, find offensive. See, e.g., Cohen

v. California, 403 U.S. 15, 23-25 (1971). Pornography, and

sexual expression in general, is protected by the First Amend-

ment when it does not constitute obscenity (and there is no

showing that Dible’s expression meets that extreme standard).

See Sable Communications of Calif., Inc. v. FCC, 492 U.S.

115, 132 (1989). We should accept that fact and accord

Dible’s expression the constitutional protection to which it is

entitled. The majority opinion here falls short of the First

Amendment standard in two major respects.

Because Dible’s expressive activity was not employment-

related, the police department must demonstrate that the

alleged harm caused by his expression was “ ‘real, not merely

conjectural.’ ” United States v. Nat’l Treasury Empl. Union,

513 U.S. 454, 475 (1995) (quoting Turner Broadcasting Sys.,

Inc. v. FCC, 512 U.S. 622, 664 (1994)). The evidence of harm

in this case is so insubstantial that it can be characterized as

“conjectural.” An officer testified that he feared the effect on

recruitment of female officers, but no such effect was demon-

strated. At least three officers testified that they had been ver-

bally harassed in a manner attributable to the website, but

there was no testimony that this seriously interfered with the

performance of their duties. In sum, the findings of interfer-

ence with the mission of the police department are based on

the conjecture that Dible’s expressive activities might cause

some persons to think less well of the police department and

that this disfavor might in some ways lead to disruption of

police activities. The evidence simply does not meet the Trea-

sury Employees standard. It does not outweigh Dible’s inter-

est in expression, which is his “interest in engaging in free

speech, not the value of the speech itself.” Flanagan, 890

F.2d at 1565.1

1

I place no significance at all on Dible’s statement that he did not intend

to convey any message in his expressive activity. His website constituted

1656 DIBLE v. CITY OF CHANDLER

A second flaw in the majority’s analysis is that it enshrines

the “heckler’s veto” with respect to all conduct of a public

employee, or at least of a police department employee. Noth-

ing that Dible did or said in relation to his website activities

in itself caused any disruption to police department functions.

The alleged (and minimal) disruption was caused by other

persons’ disapproval of Dible’s activities once it became

known that he was an officer of the police department. The

rule to be drawn from the majority’s analysis, apparently, is

that police officers may be fired for engaging in expressive

activities, unrelated to their employment, when numbers of

the public disapprove of the expression vigorously and possi-

bly disruptively. That rule empowers the heckler to veto the

speech, and is inconsistent with the First Amendment. See

Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). In such a situ-

ation, it is the duty of the police department to prevent the dis-

ruption by those opposed to the speech, not to suppress or

punish the speech. See Cohen, 403 U.S. at 23.

The heckler’s veto applied to sexually expressive activities

has disturbing potential for expansive application. A measur-

able segment of the population, for example, is vigorously

antagonistic to homosexual activity and expression; it could

easily be encouraged to mobilize were a police officer discov-

ered to have engaged, off duty and unidentified by his activ-

ity, in a Gay Pride parade, or expressive cross-dressing, or

any number of other expressive activities that might fan the

embers of antagonism smoldering in a part of the population.

For this reason, it is far better to adopt a rule that protects off-

duty speech unrelated to employment when the speech itself

causes no internal problems, and the only disruption is in the

external relations between the police department and the pub-

expression, and he has raised a First Amendment defense to his termina-

tion because of his website activity. It is equally irrelevant to his First

Amendment protection that he sought to make money from his expression,

as many speakers or writers do. See, e.g., Smith v. California, 361 U.S.

147, 150 (1959).

DIBLE v. CITY OF CHANDLER 1657

lic unhappy with the police officer’s expression. The Tenth

Circuit adopted just such a rule. See Flanagan, 890 F.2d at

1566. The Fourth Circuit avoided adopting an inflexible rule,

but held that a police department could not prohibit off-duty,

unrelated speech by an officer under circumstances parallel to

those in Dible’s case: “[N]ot only was the perceived threat of

disruption only to external operations and relationships, it was

caused not by the speech itself but by threatened reaction to

it by offended segments of the public.” Berger, 779 F.2d at

1001. This public reaction in Berger was not inconsequential;

it threatened to disrupt the tenuous relationship between the

police department and the black community. Even so, “this

sort of threatened disruption by others reacting to public

employee speech simply may not be allowed to serve as justi-

fication for public employer disciplinary action directed at

that speech.” Id.

The majority opinion states that to the extent that Flanagan

and Berger “minimize the potential for an actual effect on the

efficiency and efficacy of police department functions arising

from public perceptions of the inappropriate activities of

police officers, they are severely undermined by Roe.” Supra,

p. 1648 n.7. The rationale of Flanagan and Berger, however,

was not that disruption was minimal, but that as part of the

heckler’s veto it could not support discipline of the employee.

It is true that Roe permitted discipline of an officer because

of public reaction to his expressive conduct, but that expres-

sive conduct was purposely employment-related. The head of

a governmental agency is entitled to control the speech of

members of the agency with regard to agency-related matters,

unless that speech is a matter of public concern. Pickering,

391 U.S. at 574. But that rule is an exception to the general

First Amendment protection of speech. See Treasury Employ-

ees, 513 U.S. at 465. To apply the same restriction to off-duty

expression by a public employee, unrelated to his employ-

ment, is to reject the established principle that public employ-

ees may not be required to surrender their constitutional right

of free speech as a condition of their employment. See, e.g.,

1658 DIBLE v. CITY OF CHANDLER

Keyishian v. Board of Regents, 385 U.S. 589, 605 (1967). Roe

did not extend to off-duty conduct unrelated to employment,

and accordingly it did not undermine Flanagan and Berger.

In my view, the rationale of Flanagan and Berger is not

only sound, but constitutionally required. We should apply

those principles and hold that Dible’s expressive website con-

duct was an unconstitutional ground for his discharge.2

II

I concur in the judgment, however, because the record

demonstrates that any rational trier of fact would find that

Dible would have been discharged for making false state-

ments to police department investigators, had he not been dis-

charged for his website activity. See Mt. Healthy City School

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). There

was ample and uncontradicted evidence that, early in the

investigation, Dible denied any connection with the website,

and later denied that he appeared in any of the videos. He also

denied telling anyone to lie about his involvement in the web-

site, when he had told a co-worker to lie. Although some of

these statements were later “corrected” or modified, the origi-

nal deception was clearly established.

The false statements constituted one of the two charges in

the investigative complaint, and that violation of personnel

rules was listed as a class 7 violation. The minimum and only

authorized sanction for a class 7 violation, as listed in the

2

In light of the fact that a majority of the panel disagrees with my con-

clusion that Dible could not be discharged because of his website activity,

I concur in the majority’s ruling that Chief Harris is entitled to qualified

immunity because the constitutional law that he allegedly violated was not

clearly established.

I also concur in the majority’s rejection of Dible’s claims of violation

of his right of privacy and freedom of association, as well as its rejection

of his state-law claims.

DIBLE v. CITY OF CHANDLER 1659

report, was dismissal for a first offense. The City Merit Board

referred to Dible’s false denial of involvement, and found that

Dible had been “less than truthful.” A majority of the Board

accordingly sustained the charge of dishonesty. The City

Manager subsequently accepted the Board’s recommendation

and terminated Dible, in a memorandum that devoted more

discussion to Dible’s false statements than to his website

activities.

There is little question, therefore, that Dible’s false state-

ments would have caused his discharge even in the absence

of his website activity, and that such a discharge would not

have been arbitrary or capricious.

Dible contends, however, that his false statements cannot

be a ground for discharge because the entire investigation was

instituted because of his First Amendment protected activity.

He relies on Gilbrook v. City of Westminster, 177 F.3d 839,

854 (9th Cir. 1999), which held that subordinates who retali-

ated against an employee for protected activity were not

shielded when they initiated termination proceedings that ulti-

mately resulted in a discharge of the employee by superiors

who acted without a retaliatory motive. Gilbrook is distin-

guishable on several grounds, but two are sufficient for pres-

ent purposes. First, Gilbrook did not involve false statements

or other misconduct by the employee during the administra-

tive process. Second, the disciplinary process in Gilbrook

“began with a retaliatory motive, but ended with a legitimate

one.” Id. The investigation by the police department in the

present case was not illegitimate in its inception. The depart-

ment was entitled to inquire into Dible’s off-duty activity to

see whether it was employment-related, which would bring it

within the unprotected scope of Roe. In addition, the depart-

ment had a policy requiring police officers to obtain prior

approval before engaging in any outside employment, because

certain jobs were deemed compromising. The department was

entitled to inquire whether this policy had been violated.

Nothing in the nature of the investigation entitled Dible to lie.

1660 DIBLE v. CITY OF CHANDLER

I am persuaded, therefore, that Dible would have been fired

for his unprotected false statements, and that his discharge

would not have been arbitrary, capricious, or contrary to law.

I therefore concur in the judgment affirming the dismissal of

Dible’s claims.