Matt Moonin v. Kevin Tice

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MATT MOONIN; DONN YARNALL; No. 15-16571

ERIK LEE,

Plaintiffs-Appellees, D.C. No.

3:12-cv-00353-

v. LRH-VPC

KEVIN TICE,

Defendant-Appellant, OPINION

and

LUIS ZAPATA; STATE OF NEVADA

DEPARTMENT OF PUBLIC SAFETY,

HIGHWAY PATROL DIVISION (NHP),

Defendants.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted December 13, 2016

San Francisco, California

Filed August 22, 2017

2 MOONIN V. TICE

Before: Marsha S. Berzon and Mary H. Murguia, Circuit

Judges, and Frederic Block,* District Judge.

Opinion by Judge Berzon

SUMMARY**

Civil Rights

The panel affirmed the district court’s order denying

qualified immunity to defendant Nevada Highway Patrol

Major Kevin Tice and granting partial summary judgment to

appellant, a Nevada Highway Patrol officer, in an action

brought pursuant to 42 U.S.C. § 1983 asserting that a Nevada

Highway Patrol policy, announced in an email sent by

defendant Tice, violated the First Amendment.

This action arose from a dispute regarding the

management of the Nevada Highway Patrol canine drug

detection unit. Plaintiffs alleged that certain Nevada

Highway Patrol officers sought to undermine the

effectiveness of the K9 program, and that the policy

announced by Tice, prohibiting officers from discussing the

program with any non-departmental entity or person, was

designed to prevent officers from making the problems in the

K9 program known to the public.

*

The Honorable Frederic Block, United States Senior District Judge

for the Eastern District of New York, sitting by designation.

**

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

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

MOONIN V. TICE 3

The panel held that sweeping policy imposed by Tice’s

email violated the First Amendment. The policy covered

speech undertaken outside the officers’ official duties and on

matters of public concern. The panel held that Tice had failed

to show any past disruptions sufficient to justify the

expansive policy, nor did he demonstrate that any harms

anticipated were real, not merely conjectural. The panel

further held that it was clearly established in 2011, when Tice

sent the email, that such a broad restriction on employee

speech could not survive First Amendment scrutiny.

Accordingly, Tice was not entitled to qualified immunity.

The panel affirmed the district court’s grant of partial

summary judgment to appellant on the First Amendment

claim after concluding that the relevant facts were not in

dispute and the legal issues were identical to those raised in

the qualified immunity analysis.

COUNSEL

Joseph F. Tartakovsky (argued), Deputy Solicitor General;

Brandon R. Price, Deputy Attorney General; Cameron P.

Vandenberg, Supervising Senior Deputy Attorney General;

Adam Paul Laxalt, Attorney General; Office of the Attorney

General, Carson City, Nevada, for Defendant-Appellant.

Kenneth J. McKenna (argued), Reno, Nevada, for Plaintiffs-

Appellees.

4 MOONIN V. TICE

OPINION

BERZON, Circuit Judge:

We address a question arising out of a dispute regarding

the management of the Nevada Highway Patrol (“NHP”)

canine drug interdiction program (“K9 program”)—whether

a policy announced in an email sent by defendant-appellant

Major Kevin Tice to NHP K9 program officers, including

plaintiff-appellee Matt Moonin, violated the First

Amendment by imposing an impermissible “prior restraint”

on government employee speech.1 We hold that the sweeping

policy imposed by Tice’s email violated the troopers’ clearly

established First Amendment rights. Accordingly, we affirm

the district court’s denial of qualified immunity.

1

Moonin calls the prospective restriction at issue here a “prior

restraint,” a phrase that conjures up a long line of cases in which we have

held that such restraints are almost never permissible. Because Moonin’s

claim concerns a policy restricting employee speech, it is analytically

distinct from claims involving archetypical prior restraints, like

government licensing requirements affecting only citizen speech or

judicial orders forbidding certain speech by private parties. See, e.g.,

Alexander v. United States, 509 U.S. 544, 550 (1993); Forsyth Cty. v.

Nationalist Movement, 505 U.S. 123, 130 (1992); Near v. Minnesota,

283 U.S. 697, 713, 720–23 (1931). Acknowledging that different interests

are at stake here than in these cases, however, we sometimes use the

shorthand “prior restraint” because it distinguishes Moonin’s claim from

the retaliation claims that more commonly raise questions regarding the

scope of public employees’ First Amendment rights, and because cases

considering similar challenges have done so. See, e.g., Gibson v. Office

of Attorney Gen., 561 F.3d 920, 926 (9th Cir. 2009); Wolfe v. Barnhart,

446 F.3d 1096, 1105 (10th Cir. 2006).

MOONIN V. TICE 5

I.

Moonin had been a trooper in the NHP K9 program. He

alleges in his complaint that certain NHP officers sought to

undermine the effectiveness of the K9 program, and that the

policy announced by Tice was designed to prevent police

officers involved in the program from making the problems

in the K9 program known to the public.2 The operative

amended complaint asserted ten claims for relief pursuant to

42 U.S.C. §§ 1983 and 1985, including the First Amendment

“prior restraint” claim at issue here, and named as defendants

several officers and state and municipal entities.

The question before us turns on the constitutionality under

the First Amendment of a policy imposed in a February 24,

2011 email sent by Tice to southern command K9 officers,

including Moonin. The email at issue, sent shortly after the

K9 program was reorganized, reads:

Good afternoon,

As we reengage in K9 and interdiction

program oversight at the regional command

level, it is important to ensure appropriate

flow of communication. It is critical that we

identify and resolve issues and inconsistencies

that have developed since the current

program’s inception.

2

There were two other plaintiffs, Donn Yarnall, the architect of the

K9 program, who died while the district court litigation was pending, and

former K9 trooper Erik Lee. Yarnall and Lee’s claims are not at issue in

this appeal. We refer to Moonin throughout this opinion as if he were the

sole plaintiff.

6 MOONIN V. TICE

Effective immediately, except for allied [law

enforcement] agencies and [High Intensity

Drug Trafficking Area] representatives, there

will be NO direct contact between K9

handlers, or line employees[,] with ANY non-

departmental and non-law enforcement entity

or persons for the purpose of discussing the

Nevada Highway Patrol K9 program or

interdiction program, or direct and indirect

logistics therein. All communication with

ANY non-departmental and non-law

enforcement entity or persons regarding the

Nevada Highway Patrol K9 program or

interdiction program, or direct and indirect

logistics relating to these programs WILL be

expressly forwarded for approval to your

chain-of-command. Communication will be

acco mpl ished by the appropriate

manager/commander if deemed appropriate.

Any violation of this edict will be considered

insubordination and will be dealt with

appropriately.

Lieutenants Haycox, Smith and Acting

Lieutenant Lee: Please document your

discussion and understanding of this direction

with Troopers Matt Moonin [and other named

employees] immediately. In addition, please

have necessary discussions with appropriate

Sergeants.

Moonin contends that no follow-up meeting occurred;

Tice disputes that. The parties agree that at the time Tice sent

MOONIN V. TICE 7

the email, the K9 officers, including Moonin, were subject to

pre-existing NHP confidentiality policies not contested here.

Tice’s email was sparked by concerns arising from, in the

words of one of Tice’s superiors, “questions coming from the

legislature . . . [and from] governor’s offices and from

different sources . . . [with] incomplete understandings of

what’s going on.” Tice later explained that the policy’s intent

“was to forbid direct contact with ‘Friends for K9’

representatives by the K9 and interdiction employees.” Tice

described Friends for K9 as a private organization that was

“intentionally meddling into how the unit was run.”

According to Tice, “[s]evering contact with members of

Friends for K9 was appropriate to eliminate their

inappropriate influence and access.”

The plaintiffs’ First Amendment “prior restraint” claim

concerning this email survived the district court’s rulings on

defendants’ motions to dismiss. The plaintiffs moved for

partial summary judgment on the “prior restraint” issue; the

defendants shortly thereafter cross-moved for summary

judgment on all remaining claims.

The district court granted in part and denied in part each

party’s summary judgment motion. After concluding that

Moonin had standing to bring the First Amendment claim, the

district court determined that “Tice’s email was not a lawful

prior restraint” and that Tice was not entitled to qualified

immunity because “a reasonable supervisor would have

known that such a mandate was an unconstitutional intrusion

into Plaintiffs’ established First Amendment rights.” Finding

no disputed issue of material fact that would preclude

summary judgment with respect to this issue, the court

granted Moonin’s motion for partial summary judgment on

8 MOONIN V. TICE

the First Amendment claim and denied Tice’s cross-motion

in relevant part. Tice appealed.

Although some issues remain to be determined by the

district court,3 we have jurisdiction to review a district court’s

denial of qualified immunity to a government official. See

Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016). We

review de novo whether, viewing the facts in the light most

favorable to Moonin, Tice is entitled to qualified immunity as

a matter of law. Id. We also have jurisdiction over the

portion of the district court’s order granting Moonin partial

summary judgment on the same claim, because that ruling

rested on the same factual and legal issues as the district

court’s denial of qualified immunity to Tice and “finally and

conclusively determined all liability issues against” Tice. See

Mueller v. Auker, 576 F.3d 979, 989–90 (9th Cir. 2009). In

reviewing the district court’s order granting partial summary

judgment to Moonin, we view the facts in the light most

favorable to Tice. See id. at 991.4

3

The district court has not yet ruled on Lee’s trespass claim against

a different defendant, the amount of Moonin’s damages on his First

Amendment claim, or Moonin’s attorney fee motion on that claim.

4

Several months after Tice’s email, Moonin resigned from the K9

program, although (as of 2015) he remained employed as a trooper with

NHP. Even if we assume that Moonin’s resignation rendered moot his

claim for injunctive relief, the controversy remains live because he also

sought damages. See Powell v. McCormack, 395 U.S. 486, 497–500

(1969); Wernsing v. Thompson, 423 F.3d 732, 745 (7th Cir. 2005)

(permitting a challenge to an employee pre-clearance directive to proceed,

even though the plaintiffs were no longer subject to the challenged policy,

because the plaintiffs sought damages).

Tice also points out that Moonin’s complaint suggests he actually

engaged in speech Moonin claims is proscribed, yet was not charged with

MOONIN V. TICE 9

II.

Resolution of this appeal turns, ultimately, on whether

Tice is entitled to qualified immunity. We must grant Tice

qualified immunity unless Moonin can show that Tice

“violated a statutory or constitutional right that was clearly

established at the time of the challenged conduct.” City of

San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015)

(citation omitted). We first consider whether Tice’s email

imposed an unconstitutional “prior restraint” on the K9

troopers’ speech. We then address whether any rights Tice

violated were clearly established at the time of his alleged

misconduct. See Pearson v. Callahan, 555 U.S. 223, 232,

236 (2009).

A. Constitutional Violation

“[C]itizens do not surrender their First Amendment rights

by accepting public employment.” Lane v. Franks, 134 S. Ct.

2369, 2374 (2014). Moreover, “[t]here is considerable value

. . . in encouraging, rather than inhibiting, speech by public

employees,” because “government employees are often in the

best position to know what ails the agencies for which they

work.” Id. at 2377 (brackets, internal quotation marks, and

citation omitted). At the same time, “[g]overnment

employers, like private employers, need a significant degree

of control over their employees’ words and actions.” Id.

(quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

insubordination. Moonin may challenge Tice’s policy as a “prior

restraint” regardless of whether he has been punished for violating it. See

United States v. Nat’l Treasury Emps. Union (NTEU), 513 U.S. 454, 461,

465 (1995); Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370,

382 (7th Cir. 2009).

10 MOONIN V. TICE

Accordingly, government employees may be subject to some

restraints on their speech “that would be unconstitutional if

applied to the general public.” City of San Diego v. Roe,

543 U.S. 77, 80 (2004) (per curiam).

A two-step analysis derived from the Supreme Court’s

decision in Pickering v. Board of Education, 391 U.S. 563

(1968), guides our analysis of restrictions on public employee

speech. We first ask whether the restriction at issue impacts

a government employee’s speech “as a citizen on a matter of

public concern.” See Garcetti, 547 U.S. at 418. This initial

inquiry removes from First Amendment scrutiny policies

affecting only speech uttered pursuant to public employees’

official duties. See id. at 421. If the challenged speech

restriction at issue reaches expression communicated in a

government employee’s capacity “as a citizen” and includes

discussion of “matter[s] of public concern,” “[t]he question

becomes whether the relevant government entity had an

adequate justification for treating the employee differently

from any other member of the general public,” as by

disciplining or discharging him on the basis of speech. Id. at

418. “Under some factual circumstances, . . . the Pickering

balancing test can favor protected speech even where the

speech violates the employer’s written policy requiring

speech to occur through specified channels.” Robinson v.

York, 566 F.3d 817, 825 (9th Cir. 2009).

Although the Pickering framework is most often applied

in the retaliation context, a similar analysis is used when

assessing prospective restrictions on government employee

speech. See United States v. Nat’l Treasury Emps. Union

(NTEU), 513 U.S. 454, 465–68 (1995); Gibson v. Office of

Attorney Gen., 561 F.3d 920, 926–27 (9th Cir. 2009). Where

a “wholesale deterrent to a broad category of expression”

MOONIN V. TICE 11

rather than “a post hoc analysis of one employee’s speech and

its impact on that employee’s public responsibilities” is at

issue, NTEU, 513 U.S. at 467, the Court weighs the impact of

the ban as a whole—both on the employees whose speech

may be curtailed and on the public interested in what they

might say—against the restricted speech’s “‘necessary impact

on the actual operation’ of the Government,” id. at 468

(quoting Pickering, 391 U.S. at 571). “[U]nlike an adverse

action taken in response to actual speech,” a prospective

restriction “chills potential speech before it happens.” Id.

The government therefore must shoulder a heavier burden

when it seeks to justify an ex ante speech restriction as

opposed to “an isolated disciplinary action.” Id.

1. Speech as a Citizen on a Matter of Public

Concern

The first prong of the employee speech analysis involves

two inquiries: whether the restriction reaches only speech

within the scope of a public employee’s official duties, and

whether it impacts speech on matters of public concern. See

Garcetti, 547 U.S. at 423–24. In assessing a prior restraint,

we focus on the text of the policy to determine the extent to

which it implicates public employees’ speech as citizens

speaking on matters of public concern. See, e.g., Milwaukee

Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370, 383 (7th Cir.

2009); Gasparinetti v. Kerr, 568 F.2d 311, 316 (3d Cir.

1977).5

5

Tice maintains that he never intended the policy to reach as broadly

as Moonin claims. Tice’s intent does not define the scope of the policy.

Although intent is relevant in the retaliation context, see, e.g., Heffernan

v. City of Paterson, 136 S. Ct. 1412, 1418–19 (2016), our focus in the

prospective restraint context is on the chilling effect of the employer’s

12 MOONIN V. TICE

a. Speech as a Citizen

Although “[t]he First Amendment protects some

expressions related to [a] speaker’s job[,] . . . when public

employees make statements pursuant to their official duties,

the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate

their communications from employer discipline.” Garcetti,

547 U.S. at 421. Accordingly, if Tice’s policy applies only to

speech made pursuant to troopers’ official duties, our analysis

is at an end. “The critical question . . . is whether the speech

at issue is itself ordinarily within the scope of an employee’s

duties, not whether it merely concerns those duties.” Lane,

134 S. Ct. at 2379. As the Supreme Court has emphasized,

“the mere fact that a citizen’s speech concerns information

acquired by virtue of his public employment does not

transform that speech into employee—rather than

citizen—speech.” Id.

Even if some speech implicated by Tice’s email edict

might fall within the troopers’ official duties, much of the

potentially affected speech does not. Tice’s policy, drafted

policy on employee speech, see, e.g., NTEU, 513 U.S. at 468. That

chilling effect is determined by the language of the policy—what an

employee reading the policy would think the policy requires—not what

Tice subjectively intended the email to say. See Milwaukee Police Ass’n

v. Jones, 192 F.3d 742, 748 (7th Cir. 1999) (“If the plain language of the

directives unconstitutionally restricts speech, [] good intentions cannot

vitiate that constitutional defect.”).

We note that even if Tice’s position in this litigation effectively has

retracted or placed a narrowing construction on the policy going forward,

we must still consider the policy as written in light of Moonin’s claim for

damages. See Wernsing, 423 F.3d at 745.

MOONIN V. TICE 13

very broadly, could reasonably be understood to forbid, on

penalty of employment discipline, speech made by K9

troopers in their capacities as citizens.

Tice’s email permits “NO direct contact between K9

handlers[] or line employees with ANY non-departmental and

non-law enforcement entity or persons for the purpose of

discussing the Nevada Highway Patrol K9 program or

interdiction program, or direct and indirect logistics therein.”

On a straightforward reading of this sweeping language, it is

not confined to “official agency business,” compare

Milwaukee Deputy Sheriff’s Ass’n, 574 F.3d at 383, nor to

information that would harm pending investigations or

expose sources and methods, compare Baumann v. District of

Columbia, 795 F.3d 209, 217 (D.C. Cir. 2015) (upholding a

policy prohibiting disclosure of “confidential information that

may jeopardize the successful conclusion of an

investigation”).

The policy as enunciated encompasses employees’

opinions about the program. It also reaches legitimate

“whistleblower” complaints about the program. And,

although the policy affects only speech relating to the K9 or

drug interdiction programs, we may not assume that the

troopers speak as employees rather than citizens on every

occasion in which they discuss information learned or

opinions developed while on the job. See Lane, 134 S. Ct. at

2379. “[S]peech by public employees on subject matter

related to their employment holds special value precisely

because those employees gain knowledge of matters of public

concern through their employment.” Id. Absent any

qualification regarding what types of information or opinions

regarding the K9 program are subject to the policy, we cannot

14 MOONIN V. TICE

say that Tice’s edict affects only speech made pursuant to the

affected troopers’ official duties.6

Further, the policy included in Tice’s email seemingly

applies not only to speech intended for the media but also to

speech directed to community groups, to city and state

legislators, to state and federal officials, and even to family

members and friends. See Dahlia v. Rodriguez, 735 F.3d

1060, 1074 (9th Cir. 2013) (en banc) (stating that

communication “with individuals or entities outside of [an

employee’s] chain of command . . . [is] unlikely” to be

pursuant to the employee’s official duties). Indeed, curtailing

contact with a particular community group was Tice’s stated

intention in sending the email. That Tice’s email specifically

exempts speech to allied law-enforcement agencies and High

Intensity Drug Trafficking Area program representatives from

the prohibition on direct contact suggests that, to the extent

the policy is targeted at all, it is targeted at speech not made

pursuant to the affected troopers’ official duties.

Tice contends that, as part of their official duties, troopers

are required to report misconduct, and therefore, to the extent

the challenged policy covered speech addressing misconduct

6

Moonin has not challenged NHP’s pre-existing confidentiality and

pre-clearance policies, and we therefore have no occasion to opine on their

constitutionality. We do note that these confidentiality policies appear to

be considerably more narrowly focused than Tice’s pronouncement. They

concern “Division information” and “official Department business.”

Tice asserts that he intended that his email simply reiterate these

existing confidentiality policies, but his email makes no mention of them

and is much broader, referring to “all communication” regarding the K9

program rather than “Division information” or “official Department

business.”

MOONIN V. TICE 15

within the department, such speech would have fallen within

Moonin’s official duties. See Hagen v. City of Eugene,

736 F.3d 1251, 1258–59 (9th Cir. 2013) (holding that a K9

officer’s reporting of work-related safety issues to his

supervisors did not constitute speech as a private citizen). It

is true that Department of Public Safety policy requires

employees to report “misconduct . . . where such activities

may result in criminal prosecution or discipline under

[Department of Public Safety] policy.” Troopers are required

to report misconduct “to their immediate supervisor,” or, if

the incident is sufficiently serious, to the Chief of NHP.

But, even granting that troopers are required as part of

their jobs to report some kinds of misconduct internally,

Tice’s email forbids speech about many topics aside from

misconduct—disagreements about the best K9 training

protocols, for example. Under Tice’s policy, troopers may

not convey their opinions about any aspect of the K9 or drug

interdiction programs to legislators or community groups.

The policy thus covers speech outside the troopers’ official

duties, whether or not some speech within those duties is also

covered.

b. Matter of Public Concern

“Speech involves matters of public concern when it can

be fairly considered as relating to any matter of political,

social, or other concern to the community, or when it is a

subject of legitimate news interest; that is, a subject of

general interest and of value and concern to the public.”

Lane, 134 S. Ct. at 2380 (internal quotation marks and

citation omitted). Whether speech addresses a matter of

public concern “turns on the ‘content, form, and context’ of

the speech.” Id. (quoting Connick v. Myers, 461 U.S. 138,

16 MOONIN V. TICE

147–48 (1983)). Here, again, we consider all speech to which

the challenged policy applies.

We have little difficulty concluding that the policy

announced in Tice’s email reaches speech on matters of

public concern. The policy is not limited to “direct or

indirect logistics” relating to the K9 program, which Tice

identifies in his email as a subset of all speech affected by the

policy. Nor is it limited to speech concerning internal

personnel disputes. See Gibson, 561 F.3d at 925.

Moonin contends his speech would have included

commentary about “NHP’s misuse of funds, promoting and

condoning of unconstitutional searches, and sabotage of the

K-9 Program.” Cf. NTEU, 513 U.S. at 461–62, 466

(considering employees’ past and intended speech in

assessing the First Amendment consequences of a statute

affecting employee speech). Tice’s email encompasses such

proposed speech. Speech about “inefficiency in managing

and operating government entities is [speech about] a matter

of inherent public concern.” Moran v. Washington, 147 F.3d

839, 849 (9th Cir. 1998) (brackets and citation omitted); see

also Robinson, 566 F.3d at 822 (“As a matter of law, the

competency of the police force is surely a matter of great

public concern.” (internal quotation marks and citations

omitted)). Hence, at least some subset of “[a]ll

communication . . . regarding the Nevada Highway Patrol K9

program or interdiction program” implicates matters of public

concern.

Moreover, Tice’s policy encompasses troopers’ informed

opinions about the trajectory of the K9 program. In

Pickering, the Supreme Court concluded that, even if based

on false information, a teacher’s letter to a newspaper

MOONIN V. TICE 17

criticizing the school board’s allocation of funds and its

communication with taxpayers could not serve as the basis

for the teacher’s dismissal. 391 U.S. at 570–73. Just as the

contents of the teacher’s letter to the newspaper in Pickering

were a matter of public concern, “a difference of opinion . . .

as to the preferable manner of operating” the K9 program

“clearly concerns an issue of general public interest.” See id.

at 569–71. That disputes about management of the K9

program garnered media attention reinforces the conclusion

that the policy impacted speech of public interest.

The troopers silenced by Tice’s policy, like the teacher in

Pickering, are “members of a community most likely to have

informed and definite opinions as to how funds allotted to the

operations of [their government employer] should be spent.”

Id. at 572; see also Lane, 134 S. Ct. at 2379–80. The

troopers’ freedom to offer their informed opinions about the

direction of the K9 program on their own time, as concerned

citizens, is a prerogative that the First Amendment protects

but that Tice’s edict forbids.

2. Pickering/NTEU Balancing

Because Tice’s policy reaches speech beyond that

undertaken pursuant to the troopers’ official duties and also

encompasses speech on matters of public concern, we next

ask whether Tice “had an adequate justification” for

implementing the policy. See Garcetti, 547 U.S. at 418. “[A]

government entity has broader discretion to restrict speech

when it acts in its employer, but the restrictions it imposes

must be directed at speech that has some potential to affect its

operations.” Id. at 411.

18 MOONIN V. TICE

We must balance “the interests of the public employee, as

a citizen, in commenting upon matters of public concern and

the interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its

employees.” Lane, 134 S. Ct. at 2377 (brackets omitted)

(quoting Pickering, 391 U.S. at 568). In balancing the

interests on each side, we consider not only the employees’

interest in speaking but also “the importance of promoting the

public’s interest in receiving the well-informed views of

government employees engaging in civic discussion.”

Garcetti, 547 U.S. at 419; see also NTEU, 513 U.S. at 468.

We note at the outset that “the government’s burden when

seeking to justify a broad deterrent on speech that affects an

entire group of its employees is greater than when it is

defending an individual disciplinary decision.” Tucker v.

Cal. Dep’t of Educ., 97 F.3d 1204, 1210–11 (9th Cir. 1996)

(citing NTEU, 513 U.S. at 468); see also id. at 1211 (“[T]he

Government must show that the interests of both potential

audiences and a vast group of present and future employees

in a broad range of present and future expression are

outweighed by that expression’s necessary impact on the

actual operation of the Government.” (quoting NTEU,

513 U.S. at 468 (internal quotation marks omitted))). In

particular, “when the Government defends a regulation on

speech as a means to . . . prevent anticipated harms, it . . .

must demonstrate that the recited harms are real, not merely

conjectural, and that the regulation will in fact alleviate these

harms in a direct and material way.” NTEU, 513 U.S. at 475

(alterations and citation omitted); see also Gibson, 561 F.3d

at 928 (upholding a pre-clearance policy where there was “a

close and rational relationship between the policy and

legitimate governmental interests”).

MOONIN V. TICE 19

Tice asserts three justifications for the policy announced

in his email. The first concerns “protecting sensitive law

enforcement information related to drug interdiction.” Tice

contends that permitting “law enforcement officers like

Moonin . . . to discuss specifics about the logistics of the K9

and drug interdiction programs” would “compromis[e] the

safety of officers and the general public” as well as

“confidential criminal investigations and agency operations.”

The second interest consists of “controlling the Department’s

official communications about the K9 program.” The third

concerns “ensuring effective operation of the agency without

disruption” by non-law-enforcement groups. Regarding this

third category, Tice expresses concerns about “private interest

groups hav[ing] the ability to shape and dictate law

enforcement policy, goals, objectives and missions to the

Nevada Department of Public Safety,” noting a “potential for

disruption in operations, unethical practices, and favored

treatment towards these special interest groups.”

NHP undoubtedly has a legitimate interest in keeping

confidential much information about the K9 program.

Releasing details about specific enforcement efforts or

ongoing investigations could threaten the success of those

endeavors. See, e.g., Baumann, 795 F.3d at 216 (“It cannot

be gainsaid that the [police department] has a weighty interest

in preserving confidential information that, if released

publicly, could jeopardize the successful conclusion of a

criminal investigation.”); Swartzwelder v. McNeilly, 297 F.3d

228, 239 (3d Cir. 2002) (acknowledging the importance of

preventing disclosure of confidential police department

information). Likewise, managing the content of the

department’s official communications to the public is a

legitimate interest. See Swartzwelder, 297 F.3d at 239–40

(“[P]revent[ing] public confusion regarding the City’s official

20 MOONIN V. TICE

policies and practices . . . is a legitimate and substantial

objective.”). The likelihood of public confusion is

diminished somewhat in this case by the fact that Tice’s

directive was aimed at rank-and-file troopers, not the sort of

high-level, policy-making employees whom the public would

be likely to assume speak for the department. See Moran,

147 F.3d at 850 (“[T]he State’s interest in avoiding disruption

is enhanced when the employee asserting her right to speak

serves in a ‘confidential, policymaking, or public contact role

. . . .” (quoting Rankin v. McPherson, 483 U.S. 378, 390–91

(1987))).

We are considerably more skeptical of the third asserted

justification, which the record suggests was the primary

impetus for Tice’s email. Tice and his supervisor refer to

disruption resulting from communication between K9 officers

and outside groups, but specific information about this past or

possible future disruption is scarce in the record. For

instance, one of Tice’s supervisors testified that he instructed

Tice to send the email “because we had . . . issues with

questions coming from the legislature,” governor’s office,

and others with “incomplete understandings of” what was

happening in the department. Another officer described, as

the motivation for the policy, concerns about “divisional

information, department information, related to our decision

and decision-making and how we were trying to manage and

provide oversight to the canine program . . . being shared

outside of the department.” Tice, in his deposition, stated that

he received instructions to send out the email because “the

influence that was continually being applied to governor’s

staff by outside department individuals . . . [was] no longer

welcome” and K9 program members’ continued

communication with non-law-enforcement entities was

creating “disruption.”

MOONIN V. TICE 21

The only more specific account of the incidents

motivating the new policy was provided by Tice in his

affidavit. In that document, Tice stated that the purpose of

the policy “was to forbid direct contact with ‘Friends for K9’

representatives,” because members of the group “were

intentionally meddling into how the unit was run, who would

be in the unit, day-to-day assignments of the unit members,

and how authority over the unit would be structured[,] which

severely limited oversight and effectiveness of the Division.”

The record does not make clear how this outside group

actually accomplished the “meddling” he describes.

Although it could be true that police departments would

operate more efficiently absent inquiry into their practices by

the public and the legislature, efficiency grounded in the

avoidance of accountability is not, in a democracy, a

supervening value. Avoiding accountability by reason of

persuasive speech to other governmental officials and the

public is not an interest that can justify curtailing officers’

speech as citizens on matters of public concern. There is no

indication in the record that the non-law-enforcement entities

that concerned Tice and his superiors had the “ability to shape

and dictate law enforcement policy, goals, objectives and

missions” by any means other than successful persuasion of

policy-making officials. Without any specific evidence

regarding direct, improper interference in specific

investigations, vague allegations about the “potential for

disruption in operations, unethical practices, and favored

treatment towards . . . special interest groups” are insufficient

to legitimize an interest in avoiding outside “meddling.”

In any event, even crediting the departmental interests as

enunciated, they cannot, individually or taken together,

support the sweeping policy announced in Tice’s email. The

22 MOONIN V. TICE

message prohibits troopers from engaging in “all

communication with ANY non-departmental and non-law

enforcement entity or persons regarding the Nevada Highway

Patrol K9 program or interdiction program, or direct and

indirect logistics relating to these programs” (italics added).

This expansive policy does not bear a “close and rational

relationship” to the department’s legitimate interests. See

Gibson, 561 F.3d at 928.

Tice’s policy makes no distinction between speech about

the K9 program that reasonably could be expected to disrupt

NHP’s operations and speech that plainly would not, or that

would do so only inasmuch as it engendered legitimate public

debate about the management of the program.7 The

prohibition it imposes is not tailored to prevent the release of

factual information or official records that would jeopardize

ongoing or future investigations. Compare Baumann,

795 F.3d at 212, 217; Milwaukee Deputy Sheriff’s Ass’n,

574 F.3d at 383. Nor is it targeted only at messages conveyed

in an officer’s official capacity, as would be more likely to

muddle the official position of the department. Instead,

Tice’s directive sweeps broadly to cover “all communication”

about the program with those outside law enforcement.

Not only is Tice’s policy broad in terms of subject matter;

it imposes a severe limitation directly on the troopers’ speech.

7

Tice argues that existing whistleblower protection laws made clear

that his email was not intended to reach legitimate whistleblowing. The

plain language of Tice’s email suggests otherwise, threatening those who

do not channel their concerns through the chain of command with a

declaration of insubordination and attendant punishment. That some other

law or policy might ultimately vindicate a whistleblower’s position does

not mean that the specific threat of an insubordination determination

would not chill some speech in a manner relevant to our analysis here.

MOONIN V. TICE 23

The email commands that K9 officers not communicate with

non-law-enforcement personnel about the K9 program under

any circumstances, with or without prior notice or approval.

The mandate is that “[c]ommunication will be accomplished

by the appropriate manager/commander if deemed

appropriate,” not by the K9 officer wishing to speak. Under

Tice’s policy, only approved messages will ever reach the

public, and then only in the words of the trooper’s supervisor.

Such a system creates constitutional difficulties above and

beyond those created by pre-clearance regimes.

Like public employer pre-clearance policies held to be

unconstitutional, the policy announced in Tice’s email

leaves entirely at the discretion of the trooper’s

“manager/commander” the determination of which

communications are “appropriate.” See, e.g., Swartzwelder,

297 F.3d at 238–41; Harman v. City of New York, 140 F.3d

111, 119–21 (2d Cir. 1998). Such unbounded discretion as to

substance raises the specter of arbitrary or viewpoint-

discriminatory enforcement. See City of Lakewood v. Plain

Dealer Publ’g Co., 486 U.S. 750, 763–64 (1988); Sanjour v.

EPA, 56 F.3d 85, 97 (D.C. Cir. 1995) (en banc)

(acknowledging this concern in striking down a regulation

affecting employee speech).

By going beyond a pre-clearance regime, the additional

constriction as to who may convey an approved message

sanctions additional interference with the troopers’ right of

free expression. The ban on direct speech, silencing the

originator of even an approved message, is likely

fundamentally to distort the intended message, both by

leaving the precise timing and content of any message to a

trooper’s superiors and by misconveying the source of the

message.

24 MOONIN V. TICE

In sum, Tice has not shown any past disruption sufficient

to justify the expansive policy announced, nor has he

demonstrated that any harms anticipated “are real, not merely

conjectural, and that the regulation will in fact alleviate these

harms in a direct and material way.” See NTEU, 513 U.S. at

475 (alterations and citation omitted). We therefore hold that

the prospective speech restriction imposed by Tice’s email

violated the First Amendment.

B. Clearly Established Law

We next ask whether the First Amendment right Tice

violated was clearly established at the time he sent his email

in 2011. “A clearly established right is one that is

‘sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.’”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

Broad principles ordinarily cannot constitute clearly

established law. White v. Pauly, 137 S. Ct. 548, 552 (2017)

(per curiam). Rather, “clearly established law must be

‘particularized’ to the facts of the case.” Id. (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although

we do “not require a case directly on point for a right to be

clearly established, existing precedent must have placed the

statutory or constitutional question beyond debate.” Id. at

551 (internal quotation marks omitted) (quoting Mullenix,

136 S. Ct. at 308).

We first look to binding precedent to determine whether

a right is clearly established. Tarabochia v. Adkins, 766 F.3d

1115, 1125 (9th Cir. 2014). “In the absence of binding

precedent clearly establishing the constitutional right, ‘we

MOONIN V. TICE 25

look to whatever decisional law is available,’” including

relevant decisions of other circuits, state courts, and district

courts. Id. (quoting Boyd v. Benton Cty., 374 F.3d 773, 781

(9th Cir. 2004)).

As an initial matter, it was clear in 2011 that some of the

speech impacted by Tice’s edict was protected by the First

Amendment. As early as Pickering, it was clear that

employees’ opinions about the proper way to administer

government agencies, when conveyed in that employee’s

capacity as a private citizen, constituted protected speech.

See Pickering, 391 U.S. at 571–72. Controlling precedent

also made clear in 2011 that it was generally unconstitutional

to punish a police officer for speaking out about malfeasance

or mismanagement in the department. See Robinson,

566 F.3d at 824–25. Tice was therefore clearly on notice that

a policy precluding all sorts of speech by officers, to

whomever communicated, about the K9 program was subject

to limits imposed by the First Amendment. Moreover, it was

abundantly clear in 2011 that ex ante restrictions on employee

speech are more constitutionally problematic than after-the-

fact decisions to punish a particular employee for his speech.

See NTEU, 513 U.S. at 467–68; Tucker, 97 F.3d at 1210–11.

Without more, the marriage of these two precepts in large

part resolves this case. Tice’s policy was written so broadly

as to promise punishment for some speech that, as of 2011,

clearly received constitutional protection.

In light of the Supreme Court’s emphasis on identifying

clearly established law “‘particularized’ to the facts of the

case,” White, 137 S. Ct. at 552 (citation omitted), however,

we consider in detail cases addressing analogous employer

prior restraints on speech. These cases demonstrate that the

26 MOONIN V. TICE

First Amendment right Tice violated was clearly established

at the time he sent his email.

Employer prior restraint cases address a spectrum of

workplace regulations falling, generally, into three categories

that raise constitutional issues of increasing severity:

(1) regimes requiring that an employer be notified of the

content of the employees’ speech; (2) regimes requiring that

an employee seek supervisor pre-approval before speaking;

and (3) regimes prohibiting any and all discussion of certain

topics with the public. Tice’s email imposed the last of

these—a bar on discussion of a particular subject with anyone

outside the law-enforcement community. But consideration

of the escalating constitutional concerns raised by each

category of restrictions both explains and confirms our result

today. We therefore address each in turn.

Had Tice’s edict imposed only a notice regime, we well

might grant qualified immunity. There is no relevant

controlling authority forbidding a notice requirement,8 and

persuasive cases addressing such restrictions, including in the

law-enforcement context, have sometimes allowed them to

stand. For example, in Latino Officers Association v. Safir,

170 F.3d 167, 168 (2d Cir. 1999), the Second Circuit declined

to enter a preliminary injunction against a New York City

Police Department policy requiring officers to notify the

department in advance of any speaking engagement and to

provide a written summary of the speech the next day. The

City previously had required officers to obtain prior written

8

We emphasize that we are here considering only the clearly

established law prong of qualified immunity, not whether requiring notice

or approval of speech such as that covered by Tice’s email is

constitutionally proper.

MOONIN V. TICE 27

approval from the police commissioner before they could

proceed with the engagement, but the City rescinded the pre-

approval requirement during the course of the litigation. The

court accordingly observed that, “[i]n the absence of the

approval requirement, there is no opportunity for the City to

suppress or delay speech expressing dissenting views.” Id. at

172; see also Weaver v. U.S. Info. Agency, 87 F.3d 1429,

1436–39, 1443 (D.C. Cir. 1996) (reading narrowly an

employee pre-publication review policy to impose only a

review, rather than an approval, requirement, so as to avoid

the “serious constitutional issues” that would arise from an

advance approval requirement). Tice’s policy, in contrast,

not only imposed a species of pre-approval requirement, thus

allowing NHP to suppress any speech it deemed not

“appropriate,” but also prohibited the officers themselves

from expressing even approved messages.

As Latino Officers Association and Weaver indicate, the

next category of employee speech restrictions, those requiring

a supervisor to approve in advance the content of the

employee’s speech, raises more significant constitutional

problems. Many cases had held by 2011 that such regulations

violate the First Amendment. Even so, were Tice’s edict

limited to a pre-approval requirement, the qualified immunity

issue would have a different cast than the one we face.

Controlling cases suggested that employer pre-approval

regimes were in some instances permissible, albeit in

situations quite different from the one we consider today. For

instance, in Snepp v. United States, 444 U.S. 507, 511–13

(1980) (per curiam), the Supreme Court enforced a CIA

employment agreement requiring agents to submit for pre-

publication approval any material relating to the agency, its

activities, or intelligence activities in general. Over a dissent

28 MOONIN V. TICE

by Justice Stevens and two of his colleagues highlighting the

First Amendment concerns inherent in such a policy, see id.

at 520 nn.9–10, 522, 526 n.17, the Court emphasized the

“extremely high degree of trust” essential to the intelligence

agency’s work, id. at 510, noting that “[t]he Government has

a compelling interest in protecting both the secrecy of

information important to our national security and the

appearance of confidentiality so essential to the effective

operation of our foreign intelligence service,” id. at 509 n.3.

In upholding the policy, the Court also credited the

government’s “[u]ndisputed evidence . . . that a CIA agent’s

violation of his obligation to submit writings about the

Agency for prepublication review impairs the CIA’s ability

to perform its statutory duties,” regardless of whether the

written material includes classified information. Id. at

512–13; see also Brown v. Glines, 444 U.S. 348, 361 (1980)

(upholding Air Force regulations requiring members of the

service to obtain approval from their commanders before

circulating petitions on Air Force bases).

In Gibson v. Office of the Attorney General, 561 F.3d at

927–28, the Ninth Circuit in 2009 upheld a California

Department of Justice policy requiring attorneys employed by

the Department to obtain prior approval before engaging in

the private practice of law. We concluded that the

Department had a legitimate interest in avoiding conflicts of

interest and prejudice to the Department and its clients, and

in ensuring that employees are devoting their full attention to

their work for the Department. Id. at 928. Noting that the

policy did not prohibit all outside practice of law and was

more permissive than a similar policy upheld by the U.S.

Court of Appeals for the District of Columbia, we held that

there was a “close and rational relationship between the

policy and legitimate governmental interests.” Id.

MOONIN V. TICE 29

In short, controlling case law as of 2011 indicated that

employer pre-approval regimes tailored to address specific,

legitimate government interests sometimes pass constitutional

muster. At the same time, persuasive cases addressing pre-

clearance regimes more closely analogous to the policy

imposed by Tice strongly indicated that even a pre-clearance

regime—as opposed to the outright prohibition at issue

here—affecting an entire topic of discussion would run afoul

of the First Amendment.

For example, in Harman v. City of New York, 140 F.3d at

124, the Second Circuit in 1998 held unconstitutional an

agency press policy that applied to employees of New York

City’s child welfare and social services agencies. The policy

provided that “[a]ll contacts with the media regarding any

policies or activities of the Agency . . . be referred to the []

Media Relations Office before any information is conveyed

by an employee or before any commitments are made by an

employee to convey information.” Id. at 116. The court,

considering the policy’s effect only on information of public

concern and not protected from disclosure by statute,

concluded that the interests of the plaintiff employees and the

listening public outweighed the agencies’ interests in

protecting confidential information and ensuring efficient and

effective operation. Id. at 119, 124. In particular, the court

highlighted that a pre-clearance requirement could inhibit

even speech that ultimately would be approved, as employees

might self-censor rather than risk denial of permission to

speak; allowed the agency to control the timing of the

employees’ speech; and, as the policy gave unbridled

discretion to the agency decision-maker, presented an

unacceptable risk of content or viewpoint censorship. Id. at

119–21.

30 MOONIN V. TICE

Other decisions similarly demonstrated that, even had

Tice’s policy only required troopers to obtain pre-approval

before speaking about the K9 program, the policy would most

likely have violated the First Amendment. For instance, in

Swartzwelder v. McNeilly, 297 F.3d at 238–41, the Third

Circuit in 2002 upheld a preliminary injunction prohibiting

enforcement of a police department policy requiring

employees to obtain supervisor pre-approval before testifying

in court as an expert witness. Applying NTEU, the Third

Circuit concluded that the police officer challenging the

policy was likely to succeed on the merits of his First

Amendment claim. Id. at 241; see also Crue v. Aiken, 370

F.3d 668, 674–75, 679–81 (7th Cir. 2004) (holding

unconstitutional a policy requiring express authorization

before any student, employee, or other individual associated

with a university could communicate with a prospective

student athlete, and further holding that the official who

promulgated the policy was not entitled to qualified

immunity). But see Wernsing v. Thompson, 423 F.3d 732,

748–50 (7th Cir. 2005) (concluding that, although the court

had “serious doubt” about the legality of a policy requiring

Office of the Inspector General staff to obtain prior approval

before speaking to the secretary of the department, press, or

“any external agent” about Office policies or operations, it

was not clearly established in 2000 that such a directive

violated the First Amendment); Zook v. Brown, 865 F.2d 887,

889, 892 (7th Cir. 1989) (upholding a sheriff’s department

regulation requiring supervisor approval before employees

could identify themselves as officers “in connection with

MOONIN V. TICE 31

testimonials or advertisements of any commodity or

commercial enterprise”).9

As we have already emphasized, Tice’s edict goes much

further than the restrictions considered in any of these cases.

His email prohibits all direct contact between troopers and

the public for the purpose of discussing any information or

opinion relating to the K9 program. As the notice and pre-

approval cases indicate and the cases that follow confirm, it

was clearly established when Tice sent the email that such a

broad restriction on employee speech could not survive First

Amendment scrutiny.

9

Several district court opinions have struck down public employee

pre-clearance requirements directed at broad categories of speech intended

for the public. See, e.g., Parow v. Kinnon, 300 F. Supp. 2d 256, 266 (D.

Mass. 2004) (holding unconstitutional a policy requiring prior approval of

any public comment regarding the plans, policies, or administration of the

fire department, fires, or department business); Lauretano v. Spada, 339 F.

Supp. 2d 391, 420 (D. Conn. 2004) (applying Harman to invalidate a state

police department media policy requiring officers to obtain prior approval

before speaking to the press); Kessler v. City of Providence, 167 F. Supp.

2d 482, 490 (D.R.I. 2001) (holding unconstitutional police department

rules that potentially prohibited “all speech even remotely related to the

Police Department” to any unauthorized person unless permitted by a

supervisor); Spain v. City of Mansfield, 915 F. Supp. 919, 923 (N.D. Ohio

1996) (holding facially unconstitutional a policy requiring firefighters to

obtain prior written approval from a superior before engaging in any

public communication on matters concerning the fire department rules,

duties, policies, procedures, or practices); Fire Fighters Ass’n v. Barry,

742 F. Supp. 1182, 1194 (D.D.C. 1990) (holding unconstitutional a

requirement that firefighters obtain prior written permission from the

public affairs officer before giving interviews while on duty); Micilcavage

v. Connelie, 570 F. Supp. 975, 982 (N.D.N.Y. 1983) (invalidating a

regulation requiring members of the New York state police to obtain the

authorization of the superintendent before delivering a public address or

speech).

32 MOONIN V. TICE

Controlling case law addressing flat prohibitions on

employee speech is, and was in 2011, limited. But Supreme

Court and Ninth Circuit precedent emphatically signaled that

a policy prohibiting public discussion of matters of public

concern by employees of a particular government program,

without a countervailing showing of substantial workplace

disruption, was much too broad to be constitutional.

NTEU addressed a statute banning the receipt of

compensation by federal employees for making speeches or

writing articles, regardless of whether the speech related to

the employee’s official duties. Although this restriction

banned only an incentive for the creation of speech, rather

than speech itself, the Supreme Court concluded that such a

sweeping disincentive to speech violated the First

Amendment. See 513 U.S. at 475–76. Applying this

precedent, the Ninth Circuit later struck down a broadly

worded ban on religious advocacy within a particular

workplace. See Tucker, 97 F.3d at 1210–12, 1214; but see

Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 650, 652 (9th Cir.

2006) (distinguishing Tucker and upholding narrower

restrictions forbidding discussion of religion with clients and

display of religious items in areas of a government agency

office to which clients had access). The factual situations

addressed in these controlling cases are not closely similar to

the one we consider today—but that is likely because the bans

considered in these cases were narrower and thus more

debatably constitutional than the one here, which directly

restricts speech and does so outside the workplace.

“[N]otwithstanding the absence of direct precedent, the law

may be . . . clearly established. Otherwise, officers would

escape responsibility for the most egregious forms of conduct

simply because there was no case on all fours prohibiting that

particular manifestation of unconstitutional conduct.” Deorle

MOONIN V. TICE 33

v. Rutherford, 272 F.3d 1272, 1285–86 (9th Cir. 2001)

(citation omitted).

Because there is limited controlling precedent on point,

we turn to persuasive authority. See Jones v. Williams,

791 F.3d 1023, 1034 (9th Cir. 2015). We conclude that

persuasive cases addressing more closely analogous

regulations would have made reasonable government officials

quite aware, had they any doubt, that Tice’s edict ran afoul of

the First Amendment.

The Tenth Circuit, for example, denied qualified

immunity to a school administrator who imposed on teachers

a “broad ban[] on the discussion of all ‘school matters’ with

anyone.” Brammer-Hoelter v. Twin Peaks Charter Acad.,

602 F.3d 1175, 1185, 1187 (10th Cir. 2010). The court

observed that, when read in the light most favorable to the

plaintiffs, the challenged directives were “not limited to the

improper discussion of . . . confidential information.” Id. at

1185. As such, the court concluded, the directives “were

certainly broad enough to potentially stifle speech of public

concern.” Id. at 1186. The administrator’s “legitimate

interests in ensuring the efficient functioning of the school

and deterring teachers from disclosing confidential student

information did not justify a ban on the discussion of all

school matters.” Id.; see also Luethje v. Peavine Sch. Dist.,

872 F.2d 352, 354–56 (10th Cir. 1989) (concluding, in the

context of a fee application, that a “broadly worded rule”

promulgated by the school board that lunchroom personnel

must discuss “school problems” with the principal and not

with others violated the First Amendment).

The Fifth Circuit in Barrett v. Thomas, 649 F.2d 1193,

1199 (5th Cir. 1981), likewise struck down regulations of a

34 MOONIN V. TICE

breadth comparable to Tice’s edict. The court considered a

First Amendment challenge to sheriff’s office personnel

regulations prohibiting “unauthorized public statements,”

comments by employees to reporters on any topic “that is or

could be of a controversial nature,” and comments by

employees to elected officials concerning sheriff’s office

policy or procedure. Id. The Fifth Circuit held these

regulations facially overbroad, as they “explicitly forb[ade]

acts that departmental employees have a clear constitutional

right to do.” Id.; see also Alderman v. Phila. Hous. Auth.,

496 F.2d 164, 174 (3d Cir. 1974) (holding that a

memorandum prohibiting employees of the Philadelphia

Housing Authority from discussing rental advisory board

politics with tenants violated the First Amendment, and

noting that “precious little in the case law supports the

imposition of a restraint on all the speech of public

employees, even concerning a particularized topic”).

Several district courts and at least one state court have

reached the same conclusion regarding similar restrictions.

See Int’l Ass’n of Firefighters Local 3233 v. Frenchtown

Charter Twp., 246 F. Supp. 2d 734, 736, 744 (E.D. Mich.

2003) (invalidating a fire department policy permitting only

the fire chief to release facts regarding fire department

matters, fires, or other emergencies to the news media);

Grady v. Blair, 529 F. Supp. 370, 371–72 (N.D. Ill. 1981)

(holding unconstitutional a fire department order prohibiting

employees, whether on or off duty, from speaking about any

subject pertaining to department activities); Davis v. N.J.

Dep’t of Law & Pub. Safety, 327 N.J. Super. 59, 69, 90 (Law.

Div. 1999) (granting a preliminary injunction against a state

police policy requiring, among other things, that officers

“[t]reat as confidential, unless the contrary is specifically

authorized by competent Division authority, any matters or

MOONIN V. TICE 35

information which pertain to the Division, its operations,

investigations or internal procedures” on the ground that it

constituted an unlawful prior restraint); cf. San Bernardino

Pub. Emps. Ass’n v. Stout, 946 F. Supp. 790, 799, 801 (C.D.

Cal. 1996) (stating that a policy prohibiting certain county

employees from releasing to anyone not authorized to have it

any information acquired while at work and prohibiting

employees from speaking to the media about matters

pertaining to the division “appear[ed] facially to constitute an

impermissible prohibition on protected speech,” but not

deciding the issue).

This consistent case law certainly does not suggest that

government employers may not impose any confidentiality or

chain-of-command policies. In particular, the relevant case

law makes clear that policies restricting speech uttered

pursuant to a public employee’s official duties are generally

permissible. But, as prior cases make clear, such policies

must be tailored to protect information the government has a

legitimate interest in keeping confidential.

For example, in Milwaukee Sheriff’s Association v.

Clarke, 574 F.3d at 382, the Seventh Circuit in 2009 upheld

a sheriff’s department confidentiality policy providing that

“all Sheriff’s Office employees shall keep official agency

business confidential,” and “shall not impart it to anyone

except those for whom it is intended, or as directed by the

Sheriff or his designee, or as ordered by law.” The Seventh

Circuit analyzed the policy as a prior restraint on speech and

concluded that it was not unconstitutional because—in

contrast to the edict issued by Tice—it expressly applied only

to “official agency business,” and thus applied only to speech

owing its existence to the officers’ professional

responsibilities. Id. at 383–84. In reaching this conclusion,

36 MOONIN V. TICE

the Seventh Circuit distinguished the sheriff’s department

policy from one that rendered confidential all information

“related to” the department’s official agency business. Id.;

see also Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d

1046, 1052 (7th Cir. 2008) (concluding a school’s chain-of-

command policy did “not restrict any speech protected by the

First Amendment” because it required employees to follow

the chain of command “only on matters ‘requiring

administrative attention,’ that is, issues that their job

responsibilities require them to report to a supervisor” and did

not “limit[] a staff member’s right to speak in public about

issues related to” the school); Hanneman v. Breier, 528 F.2d

750, 752, 754 (7th Cir. 1976) (stating in passing that a police

department rule requiring officers to “treat as confidential the

official business of the Department” was “clearly valid on its

face” but holding that enforcement of the policy under the

circumstances violated the First Amendment); cf. Wolfe, 446

F.3d at 1108–09 (upholding a regulation prohibiting federal

employees from receiving outside compensation for teaching,

speaking, or writing that relates to the employee’s official

duties, a ban that did not directly preclude speech); Shelton

Police Union, Inc. v. Voccola, 125 F. Supp. 2d 604, 623, 625

(D. Conn. 2001) (upholding a narrower police department

policy requiring “all formal releases to the press” to be

disseminated through the media relations officer and

prohibiting disclosure of “any information relating to pending

investigations or any information not otherwise available to

the public if such information is exempt from public

disclosure pursuant to the Freedom of Information Act”).10

10

Tice cites this Court’s unpublished memorandum disposition in

Satter v. Washington Department of Ecology, 462 F. App’x 685 (9th Cir.

2011), to support his argument that qualified immunity is warranted here.

Satter concluded that an employer was entitled to qualified immunity for

MOONIN V. TICE 37

In short, a “robust consensus” of prior cases made clear

at the time Tice issued his edict that an employer ordinarily11

may not prohibit its employees from all public discussion

relating to a particular department or government program.

See Sheehan, 135 S. Ct. at 1778. Tice’s policy did just that,

making punishable any direct communication “regarding the

[NHP] K9 program or interdiction program,” with no attempt

to tailor the speech restrictions to NHP’s legitimate interests.

Accordingly, we hold that Tice is not entitled to qualified

immunity.

C. Moonin’s Motion for Summary Judgment

In addition to denying Tice’s motion for summary

judgment on the basis of qualified immunity, the district court

granted Moonin’s motion for partial summary judgment on

the prior restraint issue. We have already concluded that Tice

is not entitled to qualified immunity. As the relevant facts are

not in dispute12 and the legal issues are identical, we affirm

imposing a restriction on an employee’s speech “during the pendency of

an investigation into her work-related conduct.” Id. at 686–87. The time-

limited and case-specific prior restraint imposed in Satter, see also, e.g.,

Farhat v. Jopke, 370 F.3d 580, 598 (6th Cir. 2004), bears little

resemblance to the unbounded restriction imposed by Tice here.

11

Of course, our analysis would be different if the existence of the

program itself was secret. But here, the program is public and its

management is the subject of significant public discussion.

12

The only disputed fact of any possible consequence is whether NHP

Lieutenant Haycox held a meeting with the troopers after Tice sent the

email. Tice was at that time Haycox’s superior. So even if Haycox

conveyed a directive different from the one embodied by the text of Tice’s

email, as he contends, it did not ameliorate the chilling effect created by

Tice’s email, which was sent directly to the troopers.

38 MOONIN V. TICE

the district court’s grant of partial summary judgment to

Moonin on the prior restraint claim.

CONCLUSION

Government employers have significant and legitimate

interests in managing the speech of their employees,

particularly where the employees’ speech pertains to their

work. And policies explaining how sensitive information

ordinarily should be handled benefit both employers and

employees. We make clear today, however, that a public

employer generally may not subject all employee speech

regarding a particular government program—whether fact or

opinion, and whether liable to disrupt the workplace or

not—to a blanket ban. A government employer’s policies

imposing prior restraints on their employees’ speech as

citizens on matters of public concern must bear a “close and

rational relationship” to the employer’s legitimate interests,

and the broad policy Tice announced did not meet this

standard. This conclusion was compelled by prior case law

at the time Tice sent his missive. We therefore hold that Tice

is not entitled to qualified immunity, affirm the district

court’s denial of his motion for summary judgment on that

basis, and further affirm the district court’s grant of Moonin’s

cross-motion.

AFFIRMED.