Petition for Writ of Certiorari — Kate Adams, Petitioner v. Sacramento County, California, et al.
Supreme Court briefDec 5, 2025
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No.
In the Supreme Court of the United States
KATE ADAMS, PETITIONER,
v.
COUNTY OF SACRAMENTO; SCOTT JONES, SHERIFF.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
KARIN M. SWEIGART
ANTHONY J. FUSARO
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
ANDREW T. TUTT
Counsel of Record
CASEY CORCORAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave, NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
STEPHEN MAGERAS
ARNOLD & PORTER
KAYE SCHOLER LLP
250 W 55th Street
New York, NY 10019
(212) 836-8000
QUESTIONS PRESENTED
This case presents a clear, recognized, and
entrenched conflict over the First Amendment rights of
public employees: whether speech made as a private
citizen about controversial subjects—speech long
understood to lie at the core of public concern—always
receives at least some level of First Amendment
protection, or instead loses all protection when it is not
expressed in a manner intended to engage in public
debate or advocacy.
In the decision below, a split Ninth Circuit panel held,
over a dissent by Judge Callahan, that a public employee’s
off-duty speech about racist imagery was not speech on a
matter of public concern because it “complain[ed] of only
private, out- of-work, offensive individual contact” and did
not “protest generally applicable ‘policies and practices’
she ‘conceived to be racially discriminatory in purpose or
effect.’” Pet. App. 11a. It thus was not, as the Court put it,
“framed in a manner calculated to ignite that public
interest.” Pet. App. 13a.
That holding deepens an intractable 7-5 circuit split
over how courts determine whether speech addresses a
matter of public concern. Seven circuits hold that speech
on controversial subjects like racism is always speech on
a matter of public concern because of its subject matter.
Five—including now the Ninth—hold that such speech
loses all First Amendment protection unless expressed in
a way courts later deem sufficiently public-facing or
advocacy-oriented.
The question presented is:
Whether public employee speech, made as a private
citizen and about a controversial subject, loses all First
Amendment protection unless the speech is intended “to
ignite th[e] public interest.”
(i)
RELATED PROCEEDINGS
U.S. District Court for the Eastern District of California:
Adams v. Cty. Of Sacramento, et al.,
No. 2:22-cv-01499-WBS-CSK (Mar. 27, 2023)
(order dismissing complaint)
U.S. Court of Appeals for the Ninth Circuit:
Adams v. Cty. of Sacramento, et al.,
No. 23-15970 (Sept. 9, 2024) (published decision
affirming dismissal)
Adams v. Cty. of Sacramento, et al.,
No. 23-15970 (Jul. 9, 2025) (amended published
decision and order denying petition for rehearing
en banc)
Supreme Court of the United States:
Adams v. Cty. of Sacramento, et al.,
No. 25A362 (Oct. 3, 2025) (application for
extension of time to file a petition for certiorari
granted by Justice Kagan)
(ii)
TABLE OF CONTENTS
Page(s)
Opinions Below ...................................................................... 1
Jurisdiction ............................................................................. 1
Constitutional Provisions Involved ..................................... 1
Statement of the Case ........................................................... 2
A. Legal Background ................................................... 4
B. Factual and Procedural Background .................... 6
Reasons for Granting the Petition ...................................... 9
I. The Circuits Are Sharply Divided Over When
Public Employee Speech Addresses a Matter of
Public Concern ............................................................. 10
II. The Decision Below Is Wrong.................................... 23
III. This Case Is The Ideal Vehicle To Resolve an
Entrenched Conflict Over Public Employees’
Core Speech Rights ..................................................... 28
Conclusion ............................................................................ 31
Appendix A: Ninth Circuit Court of Appeals Decision
(July 9, 2025) ................................................ 1a
Appendix B: District Court Order Regarding Motion to
Dismiss Claims in First Amended
Complaint (Mar. 27, 2023)........................ 36a
Appendix C: District Court Memorandum and Order
Regarding Motion to
Dismiss (Jan. 11, 2023) ............................. 42a
Appendix D: Ninth Circuit Court of Appeals Order
(June 28, 2023) ........................................... 59a
Appendix E: District Court Order Granting Motion for
Interlocutory Appeal
(May 12, 2023) ............................................ 60a
Appendix F: First Amended Complaint
(Jan. 30, 2023) ............................................ 65a
(iii)
TABLE OF AUTHORITIES
Cases
Page(s)
Adams v. County of Sacramento,
116 F.4th 1004 (9th Cir. 2024) ........................................ 7
Adams v. County of Sacramento,
143 F.4th 1027 (9th Cir. 2025) ........................................ 7
Alston v. Town of Brookline,
997 F.3d 23 (1st Cir. 2021) ............................................ 17
Alves v. Board of Regents of the
University System of Georgia,
804 F.3d 1149 (11th Cir. 2015) ..................................... 19
Azzaro v. Cnty. of Allegheny,
110 F.3d 968 (3d Cir. 1997) ........................................... 10
Berger v. Battaglia,
779 F.2d 992 (4th Cir. 1985) ......................................... 17
Bresnahan v. City of St. Peters,
58 F.4th 381 (8th Cir. 2023) .................................... 14, 15
City of San Diego v. Roe,
543 U.S. 77 (2004) ............................................ 5, 6, 22, 26
Cohen v. California,
403 U.S. 15 (1971) .......................................................... 30
Connick v. Myers,
461 U.S. 138 (1983) .......................................... 4, 5, 24, 27
Dambrot v. Central Michigan University,
55 F.3d 1177 (6th Cir. 1995) ................................... 19, 20
Dixon v. Kirkpatrick,
553 F.3d 1294 (10th Cir. 2009) ............................... 18, 19
Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc.,
472 U.S. 749 (1985) ........................................................ 24
Garcetti v. Ceballos,
547 U.S. 410 (2006) .......................................................... 5
(iv)
v
Cases—Continued
Page(s)
Gibson v. Kilpatrick,
838 F.3d 476 (5th Cir. 2016) ......................................... 20
Gorum v. Sessoms,
561 F.3d 179 (3d Cir. 2009) ........................................... 16
Graziosi v. City of Greenville Mississippi,
775 F.3d 731 (5th Cir. 2015) ................................... 20, 21
Janus v. Am. Fed'n of State, Cnty., &
Mun. Emps., Council 31,
585 U.S. 878 (2018) .................................................... 2, 23
Jorjani v. New Jersey Institute of
Technology,
151 F.4th 135 (3d Cir. 2025) ................................... 16, 17
Kennedy v. Bremerton School Dist.,
586 U.S. 1130 (2019) ...................................................... 29
Keyishian v. Bd. of Regents,
385 U.S. 589 (1967) .......................................................... 4
Lane v. Franks,
573 U.S. 228 (2014) ............................................ 27, 29, 30
Leverington v. City of Colorado Springs,
643 F.3d 719 (10th Cir. 2011) ....................................... 18
Locurto v. Giuliani,
447 F.3d 159 (2d Cir. 2006) ........................................... 27
MacRae v. Mattos,
145 S. Ct. 2617 (2025) .................................................... 29
Melton v. Forrest City,
147 F.4th 896 (8th Cir. 2025) ............................ 12, 13, 14
Moody v. NetChoice, LLC,
603 U.S. 707 (2024) ........................................................ 29
Morris v. City of Colorado Springs,
666 F.3d 654 (10th Cir. 2012) ................... 2, 8, 18, 21, 26
vi
Cases—Continued
Page(s)
Ohlson v. Brady,
9 F.4th 1156 (9th Cir. 2021) .......................................... 22
Pappas v. Giuliani,
290 F.3d 143 (2d Cir. 2002) ..................................... 15, 16
Pickering v. Board. of Education,
391 U.S. 563 (1968) .......................................... 4, 5, 27, 29
Rankin v. McPherson,
483 U.S. 378 (1987) .................................................. 24, 25
Reuland v. Hynes,
460 F.3d 409 (2d Cir. 2006) ............................... 10, 15, 24
Schneiter v. Carr,
148 F.4th 438 (7th Cir. 2025) ........................................ 17
Snyder v. Phelps,
562 U.S. 443 (2011) .................................. 5, 22, 24, 25, 26
Sousa v. Roque,
578 F.3d 164 (2d Cir. 2009) ..................................... 10, 24
Tao v. Freeh,
27 F.3d 635 (D.C. Cir. 1994) ......................................... 18
Terrell v. University of Texas System
Police,
792 F.2d 1360 (5th Cir. 1986) ....................................... 20
United States v. Nat’l Treasury Emps.
Union,
513 U.S. 454 (1995) .............................................. 6, 26, 27
United States v. Stevens,
559 U.S. 460 (2010) ........................................................ 30
Waters v. Churchill,
511 U.S. 661 (1994) ........................................................ 27
Watters v. City of Philadelphia,
55 F.3d 886 (3d Cir. 1995) ............................................. 16
vii
Cases—Continued
Page(s)
Winters v. New York,
333 U.S. 507 (1948) ........................................................ 30
Zen Grp., Inc. v. Agency for Health Care
Admin.,
80 F.4th 1319 (11th Cir. 2023) ...................................... 22
Constitutional Provisions
U.S. Const. amend. I ............................................................. 4
Other Authorities
American Civil Liberties Union, Rethinking
Electronic Monitoring: A Harm Reduction
Guide (2022), https://www.aclu.org/wpcontent/uploads/publications/2022-09-22electronicmonitoring.pdf ................................................. 19
Ailsa W. Chang, Note, Resuscitating the
Constitutional “Theory” of Academic
Freedom: A Search for a Standard Beyond
Pickering and Connick,
53 Stan. L. Rev. 915 (2001) .............................................. 23
Cynthia L. Estlund, Speech on Matters of
Public Concern: The Perils of an Emerging
First Amendment Category,
59 Geo. Wash. L. Rev. 1 (1990) ..................................22-23
Mary-Rose Papandrea, The Free Speech Rights
of Off-Duty Government Employees,
2010 BYU L. Rev. 2117 (2010) ........................................ 22
Merrick T. Rossein, Employment
Discrimination Law and Litigation § 25:27
(2025) .................................................................................. 22
Randy J. Kozel, Reconceptualizing Public
Employee Speech,
99 Nw. U. L. Rev. 1007 (2005) ........................................ 22
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The initial decision of the United States Court of
Appeals for the Ninth Circuit is reported at 116 F.4th
1004 (9th Cir. 2024). The Ninth Circuit’s decision
amending its prior opinion and denying rehearing and
rehearing en banc (Pet. App. 1a-35a) is reported at 143
F.4th 1027 (9th Cir. 2025). The order of the United States
District Court for the Eastern District of California
dismissing the First Amendment and conspiracy claims in
the First Amended Complaint is reproduced at
Pet. App. 36a-41a and is unreported. The district court’s
earlier dismissal order is reproduced at Pet. App. 42a-58a
and is unreported. The Ninth Circuit’s order granting
permission to appeal under 28 U.S.C. § 1292(b) is
reproduced at Pet. App. 59a. The district court’s order
certifying its dismissal for interlocutory appeal is
reproduced at Pet. App. 60a-64a.
JURISDICTION
The judgment of the United States Court of Appeals
for the Ninth Circuit was entered on September 9, 2024.
The court of appeals denied a timely petition for panel
rehearing and rehearing en banc in an amended decision
issued on July 9, 2025. On September 30, 2025, Justice
Kagan extended the time within which to file a petition for
a writ of certiorari to and including December 6, 2025. The
jurisdiction of this Court is invoked under 28 U.S.C.
§ 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The First Amendment to the United States
Constitution provides:
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
(1)
2
or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a
redress of grievances.
STATEMENT OF THE CASE
This case presents a square conflict over an
important and recurring question of First Amendment
law: whether public employee speech about controversial
subjects—speech long understood to “occup[y] the
highest rung of the hierarchy of First Amendment
values,” Janus v. Am. Fed'n of State, Cnty., & Mun.
Emps., Council 31, 585 U.S. 878, 913-14 (2018)—receives
at least some First Amendment protection when the
employee speaks as a citizen on her own time, or instead
loses all First Amendment protection unless it is
expressed in a manner later deemed sufficiently publicfacing or advocacy-oriented.
In the decision below, a divided Ninth Circuit panel
held that petitioner Kate Adams’s off-duty criticism of
racist imagery—sent privately in a text exchange
between friends a decade before her termination—was
not speech on a matter of public concern because it was
not “framed in a manner calculated to ignite th[e] public
interest.” Pet. App. 13a (quoting Morris v. City of
Colorado Springs, 666 F.3d 654, 663 (10th Cir. 2012)).
The panel did not dispute that Adams was speaking
as a private citizen and not pursuant to her official duties.
Nonetheless, it concluded that her speech received no
First Amendment protection at all. In doing so, the Ninth
Circuit aligned itself with a minority bloc of five circuits
that condition constitutional protection for citizen speech
on the goal of the expression, rather than its subject.
Seven circuits take the opposite view, holding that speech
on controversial subjects like racism is always speech on
a matter of public concern precisely because of its subject
matter. Judge Callahan dissented, explaining that the
3
majority’s approach “invent[ed] a new set of
requirements for satisfying the content factor based on
Tenth Circuit cases and a 30-year-old law review article”
thereby stripping public employees of First Amendment
protection for off-duty communications on topics of
profound public import. Pet. App. 29a.
This case warrants the Court’s review. The conflict is
clear, acknowledged, and deeply entrenched. Every
regional court of appeals has taken a side. Seven circuits
hold that citizen speech addressing controversial subject
matter like racism—one of the most salient issues in
American public life—is categorically speech on a matter
of public concern. Five circuits, including now the Ninth,
have adopted the contrary rule: that such speech receives
no First Amendment protection unless it is, in hindsight,
intended as public commentary. Further percolation is
pointless. This circuit conflict is longstanding and
widespread, the arguments have been fully aired; the
lower courts are firmly divided; and there is no realistic
prospect that the split will resolve on its own.
The question presented is of paramount legal and
practical significance. The Pickering framework governs
the speech rights of millions of public employees
nationwide. Its baseline inquiry—whether the employee’s
citizen speech addresses a matter of public concern—
determines whether any First Amendment protection
attaches at all. Public employees can hardly conform their
conduct to the Constitution if the level of protection their
private expression receives varies drastically by circuit
and turns on judicial assessments of whether their offduty speech was sufficiently “calculated to ignite” public
interest. Pet. App. 13a. As this case illustrates, the stakes
are high: in the seven circuits following this Court’s
subject-matter approach, Adams’s private text messages
about racist imagery would have received First
4
Amendment protection. In the Ninth Circuit, they
received none.
Because this case cleanly presents an entrenched and
consequential constitutional conflict, and because the
decision below flouts decades of this Court’s First
Amendment jurisprudence, the petition should be
granted.
A.
Legal Background
Before turning to the circuit conflict, it helps to take
a brief step back. Public-employee speech doctrine is a
thicket of threshold inquiries and balancing tests, and the
labels matter. Whether an employee spoke as a citizen or
pursuant to her official duties, whether her speech
addressed a matter of public concern, and when the
government may discipline such speech—each is
governed by a distinct line of this Court’s cases. A short
account of that framework makes clear both what this
case is about and why the Ninth Circuit’s approach cannot
be squared with this Court’s precedents.
Start with first principles. Public employees do not
“surrender” their First Amendment rights by accepting
government employment. Keyishian v. Bd. of Regents,
385 U.S. 589, 605-06 (1967). A State “cannot condition
public employment on a basis that infringes” those rights.
Connick v. Myers, 461 U.S. 138, 142 (1983). The First
Amendment protects “the people” regardless of their
employment status. U.S. Const. amend. I. At the same
time, the government, acting as employer rather than
sovereign, has interests “in regulating the speech of its
employees that differ significantly” from those it holds
when regulating the citizenry at large. Pickering v.
Board. of Education, 391 U.S. 563, 568 (1968).
Over several decades, the Court has translated those
general principles into a structured framework. The first
inquiry asks whether the employee was speaking as a
5
citizen or pursuant to official duties. Speech “made
pursuant to [an employee’s] official duties” does not
receive First Amendment protection. Garcetti v. Ceballos,
547 U.S. 410, 421-22 (2006). A person hired to speak for
the government cannot complain when the government
dictates what she can say. But when the employee speaks
in her capacity as a private citizen, the First Amendment
kicks in and we proceed to the second inquiry.
The second inquiry asks whether the employee’s
citizen speech addressed a matter of public concern.
Speech touches on a matter of public concern when it can
“be fairly considered as relating to any matter of political,
social, or other concern to the community,” Connick, 461
U.S. at 146, 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,” City of San Diego v. Roe, 543
U.S. 77, 83-84 (2004) (per curiam). To answer that
question, courts look to the “content, form, and context”
of the speech. Connick, 461 U.S. at 147-48. And this Court
has made clear—again and again—that content is the
lodestar, because “speech on matters of public concern is
at the heart of the First Amendment’s protection.”
Snyder v. Phelps, 562 U.S. 443, 451-52 (2011) (cleaned up).
When the employee speaks as a citizen on a matter of
public concern, the analysis moves to the final step: the
balancing prescribed by Pickering. Under that
framework, the government does not violate the First
Amendment as long as sufficient interest in workplace
efficiency and effective public service justifies restricting
the employee’s speech. Pickering, 391 U.S. at 568;
Garcetti, 547 U.S. at 418-19.
One further principle threads through these cases.
This Court has recognized that the government’s
interests as employer are at their nadir when an employee
speaks off duty, on her own time, and on topics unrelated
to her work. In that circumstance, the government is
6
“unable to justify” restrictions on the familiar grounds of
workplace disruption. United States v. Nat’l Treasury
Emps. Union (“NTEU”), 513 U.S. 454, 470 (1995). Thus,
“when government employees speak or write on their own
time on topics unrelated to their employment,” the First
Amendment applies robustly—absent a justification “far
stronger than mere speculation.” San Diego, 543 U.S. at
80 (quoting NTEU, 513 U.S. at 475).
B. Factual and Procedural Background
Petitioner Kate Adams joined the Sacramento
County Sheriff’s Department in 1994 and then became
Chief of Police for the City of Rancho Cordova in March
2020. Pet. App. 65a-110a. On New Year’s Eve 2013, during
a casual text exchange with a personal friend and fellow
Department employee, petitioner forwarded two
offensive racist images she had received from unidentified
senders. Pet. App. 82a-83a. She introduced the images by
stating, “Some rude racist just sent this!!,” to which her
colleague replied, “That’s not right.” Pet. App. 83a.
Petitioner then added, “Oh, and just in case u [sic] think I
encourage this …,” though the record contains only a
partial screenshot of the exchange produced by the
County during its later investigation; petitioner no longer
possesses the full messages, which were never made
public. Pet. App. 83a.
In 2021, after petitioner reported misconduct by a
fellow employee, that employee provided the County with
partial printouts of the 2013 texts, omitting petitioner’s
contemporaneous statements condemning the images.
Pet. App. 74a-82a. The investigation shifted from the
reported misconduct to petitioner’s nearly decade-old
private speech. Pet. App. 81a-82a.
In September 2021, the Department informed
petitioner that her private 2013 texts warranted discipline
and offered her the choice to resign or face termination.
Pet. App. 88a-90a. Department officials explained that a
7
public termination could spark a “media circus” damaging
to the Department, while resignation would resolve the
matter quietly. Pet. App. 88a-90a. Petitioner resigned
under duress. Pet. App. 88a-90a.
In March 2022, anonymous copies of the
2013 images—lacking petitioner’s accompanying
condemnatory comments—were sent to a local NAACP
chapter. Pet. App. 90a-92a. The NAACP issued an open
letter describing the images, which the Sacramento Bee
soon reported, drawing public scrutiny and causing
reputational harm to petitioner. Pet. App. 90a-92a.
In August 2022, petitioner sued Sacramento County,
Sheriff Scott Jones, and unnamed defendants in the U.S.
District Court for the Eastern District of California.
Pet. App. 6a, 66a. Among other claims, she alleged that
the County retaliated against her for protected speech in
violation of the First Amendment, along with a related
conspiracy claim. Pet. App. 6a, 66a.
The district court dismissed the First Amendment
retaliation and conspiracy claims, holding that petitioner’s
texts did not address a matter of public concern and were
private speech unrelated to her official duties.
Pet. App. 40a-41a. The court certified its order for
interlocutory appeal under 28 U.S.C. § 1292(b), and a
Ninth Circuit motions panel granted permission to
appeal. Pet. App. 59a.
On September 9, 2024, a divided Ninth Circuit panel
affirmed in a published opinion. Adams v. County of
Sacramento, 116 F.4th 1004 (9th Cir. 2024). Petitioner
sought panel rehearing and rehearing en banc. On July 9,
2025, the Ninth Circuit denied both, issued an amended
opinion, and ordered that no further petitions would be
entertained. See 143 F.4th 1027 (9th Cir. 2025) (amended
opinion); Pet. App. 3a.
8
The panel majority held that petitioner’s off-duty,
private text messages did not “constitute[] ‘a matter of
legitimate public concern’” under Pickering. Pet. App. 3a.
Applying the “content, form, and context” test, the
majority concluded that none of the three factors
supported treating the messages as involving a matter of
public concern. Pet. App. 9a, 14a, 16a. The majority’s
analysis focused heavily on the “form” and “context” of
the speech—its private nature, its limited audience, and
its absence of “heightened public attention”—in
determining that the speech fell outside the category of
public-concern expression. Pet. App. 14a-16a.
But even on the content prong, the majority held that
petitioner’s speech was not on a matter of public concern.
Pet. App. 9a-14a. The court reasoned that her text
criticizing the racist imagery reflected only personal
“exasperation,” not public commentary. Pet. App. 11a.
According to the majority, the messages failed the content
test because they were not “framed in a manner
calculated to ignite that public interest.” Pet. App. 13a
(quoting Morris, 666 F.3d at 663). Notwithstanding that
the images depicted racist imagery, the panel squarely
held that “[t]he substance of the images themselves does
not alter the Pickering content analysis.” Pet. App. 12a.
That they were about a controversial public issue was
“irrelevant”; they were not “newsworthy,” not
“substantively relevant to the processes of democratic
self-governance,” and “not of interest to the general
public, nor a significant number of persons.”
Pet. App. 11a-13a (cleaned up). Sharing them therefore
did not merit any First Amendment protection.
Pet. App. 14a.
Judge Callahan dissented. The majority’s approach
to the public-concern inquiry, she wrote, “invent[s] a new
set of requirements for satisfying the content factor based
on Tenth Circuit cases and a 30-year-old law review
9
article,” and departs from both Ninth Circuit and
Supreme Court precedent. Pet. App. 29a-30a. She
emphasized that petitioner’s texts were sent off duty,
outside the workplace, years before any employment
dispute, and did not concern internal workplace
grievances—facts that should make it easier, not harder,
to treat the speech as addressing matters of public
concern. Pet. App. 19a-20a, 27a-28a, 33a.
On the core question whether petitioner’s speech
addressed a matter of public concern, Judge Callahan
firmly rejected the majority’s motive requirement.
“[C]ontent is king,” Pet. App. 34a, and petitioner’s texts—
criticizing racist imagery—unquestionably touched on an
issue “of social or political concern to some segments of
the general public,” falling within the category of speech
this Court has repeatedly described as lying at the heart
of the First Amendment. Pet. App. 35a; see Pet. App. 27a.
The majority’s refusal even to reach Pickering balancing,
she warned, effectively “deprive[s] public servants of all
First Amendment protection in such circumstances” by
withholding protection from ordinary off-duty speech that
happens not to be cast as public advocacy.
Pet. App. 18a, 35a. Petitioner’s speech should have been
treated as citizen speech on a matter of public concern,
and the burden should have shifted to the County to
justify its discipline under Pickering. Pet. App. 35a.
REASONS FOR GRANTING THE PETITION
The question presented warrants this Court’s review.
The decision below deepens a mature and acknowledged
circuit conflict over how courts decide whether publicemployee speech addresses a matter of public concern.
Every regional circuit has taken a position, and those
positions now lead to different constitutional outcomes for
identical speech. The Ninth Circuit’s rule—denying
protection to citizen speech unless it is framed in a manner
calculated to ignite public interest—conflicts with the
10
subject-matter approach applied in seven circuits.
Moreover, even if the Ninth Circuit is correct that the
speech here is not on a matter of public concern, its
holding that the speech is nonetheless entitled to no First
Amendment protection of any kind cannot be squared
with this Court’s recognition that off-duty, non-work
speech receives stronger First Amendment protection
than speech at work, not weaker. This issue is recurrent
and unquestionably significant to millions of public
employees in federal, state, and local government, and
this case is the ideal vehicle to resolve it.
I.
THE CIRCUITS ARE SHARPLY DIVIDED OVER
WHEN PUBLIC EMPLOYEE SPEECH
ADDRESSES A MATTER OF PUBLIC CONCERN
The decision below further cements a significant
circuit split over how courts should apply the “public
concern” test. That conflict is at once square and
indisputable: the courts of appeals have confronted the
same issue, come out differently, and done so because
they fundamentally disagree about how to apply this
Court’s test.
“[T]he majority of circuits” reject the Ninth Circuit’s
view. Reuland v. Hynes, 460 F.3d 409, 418 (2d Cir. 2006).
They hold that “the speaker’s motive is not dispositive as
to whether an employee’s speech relates to a matter of
public concern.” Id. (collecting cases); see also Sousa v.
Roque, 578 F.3d 164, 173 (2d Cir. 2009) (“[W]e reaffirm
today our holding in Reuland: a speaker’s motive is not
dispositive in determining whether his or her speech
addresses a matter of public concern.”); Azzaro v. Cnty.
of Allegheny, 110 F.3d 968, 978-80 (3d Cir. 1997)
(“respectfully declin[ing]” to join those circuits that treat
an employee’s “primary purpose” as dispositive of
whether speech is on a matter of public concern). As
Judge Callahan observed below, the panel majority
“invent[ed] a new set of requirements for satisfying the
11
content factor based on Tenth Circuit cases and a 30-yearold law review article.” Pet. App. 29a.
The division is clean and acknowledged. Every
regional court of appeals has taken a side, and they now
apply two competing visions of the “public concern” test.
• Seven circuits (the First, Second, Third, Fourth,
Seventh, Eighth, and D.C. Circuits) apply a
subject-matter rule: they ask whether the content
of the employee’s speech “relat[es] to any matter
of political, social, or other concern to the
community,” and hold that speech about race is
therefore inherently speech on a matter of public
concern.
• Five circuits (the Fifth, Sixth, Ninth, Tenth, and
Eleventh Circuits) apply a motive rule: they look
beyond the subject of the speech to its perceived
“point,” “purpose,” or “framing,” and deny First
Amendment protection where, in hindsight, the
employee did not present her speech in a way
courts deem sufficiently public-facing or
advocacy-oriented.
The stark division over this fundamental question of
free speech rights is untenable. Public employees face
vastly different free speech rights under the federal
constitution depending on what state or locality employs
them and thus where the suit is litigated. And now that
the split has reached 7-5, with two sides firmly dug in on
their respective rules, the hope of the split resolving itself
has vanished. The conflict is mature and ready for this
Court’s review. Definitive guidance over how courts
should apply the public concern test, particularly as it
regards speech on controversial issues, is overdue. The
circuit conflict is undeniable and entrenched, and it should
be resolved by this Court in this case.
12
The disarray in the courts of appeals is stripping
public employee First Amendment rights nationwide. It
leads to wildly divergent outcomes across Circuits for
similarly situated employees. It hands public employee’s
federal speech rights over to the arbitrary whims of
geography. And, in cases like this one, it makes a mockery
of this Court’s promise that public employees do not
“surrender” their constitutional right to free speech by
virtue of their employment. This Court’s review of this
question is desperately wanted.
A. Seven Circuits—the First, Second, Third, Fourth,
Seventh, Eighth, and D.C. circuits—decisively reject the
Ninth Circuit’s requirement that speech must be
sufficiently public-facing or advocacy-oriented to qualify
as speech on a matter of public concern. These circuits
determine whether speech is on a matter of public concern
by looking to its raw subject matter. They have used their
approach to squarely hold that speech about race
specifically is protected as speech on matters of public
concern—without looking to whether the speaker
intended it as advocacy or public debate.
1. The Ninth Circuit’s rule squarely conflicts with the
settled law in the Eighth Circuit. Melton v. Forrest City,
147 F.4th 896 (8th Cir. 2025), exemplifies the Eighth
Circuit’s rule. The Eighth Circuit in Melton confronted
the identical question presented here: whether a public
employee’s message about race was a “comment[] upon
[a] matter[] of public concern.” Id. at 902 (citation
omitted). A unanimous panel held that it was solely
because the subject of race is a “matter[] of political,
social, or other concern to the community.” Id. (citation
omitted).
In Melton, the plaintiff “reposted a black-and-white
image on Facebook that depicted a silhouette of a baby in
the womb with a rope around its neck.” Id. at 900.
13
While “[h]is intent was to convey that he was ‘antiabortion,’” others complained that the post was racist as
“it looked like a noose around the neck of a black child,”
and the caption—“I can’t breathe”—“was associated with
the protests surrounding George Floyd’s death.” Id. The
post sparked a “huge firestorm” of criticism from “angry
city-council members and citizens,” and the plaintiff was
fired. Id. at 901 (citation omitted). The plaintiff sued,
alleging unlawful First Amendment retaliation.
The Eighth Circuit held that the plaintiff’s First
Amendment claim was entitled to go to a jury. Id. at 900.
On its way to that holding, it addressed the “threshold
issue[]” of whether the plaintiff was “speaking as a citizen
on a matter of public concern” when he posted the image.
Id. at 902 (citation omitted). The Court concluded that he
was speaking as a citizen because he had “posted the
image to his personal page on his own time.” Id. It then
determined that there could be “no dispute” about
whether his message was on a matter of public concern
14
because the speech’s subject matter (“race and abortion”)
“are matters of political, social, or other concern to the
community.” Id. (citation omitted).
The Eighth Circuit’s decision in Melton followed
naturally from its earlier decision in Bresnahan v. City of
St. Peters, 58 F.4th 381 (8th Cir. 2023). There, a police
officer shared a clip from the animated television series
“Paradise PD” on a private text thread with other police
officers around the time of the George Floyd protests. Id.
at 383. The cartoon depicted a black police officer shooting
himself with the caption “another innocent black man shot
by a cop.” Id. at 385.
Screenshot from the Paradise PD Episode “Black and Blue”
Other officers in the thread complained and the officer
was forced to resign. See id. at 384. He sued alleging First
Amendment retaliation. The Eighth Circuit held that “the
content of the video suggests that [the] speech involved a
matter of public concern” Id. at 385. The Eighth Circuit
reasoned that the cartoon implicated both the Black Lives
Matter movement and the media’s treatment of police
shootings, and thus “relate[d] to a[] matter of political,
15
social, or other concern to the community.” Id. (citation
omitted).
b. The Ninth Circuit’s rule also squarely conflicts with
the established law in the Second Circuit. In Reuland, a
Brooklyn district attorney sued his employer alleging
First Amendment retaliation. The attorney was demoted
and forced to resign following his remarks in an interview
with New York Magazine that Brooklyn was “the best
place to be a homicide prosecutor” because it had “more
dead bodies per square inch than any place else.”
Reuland, 460 F. 3d at 411-12. “[P]rominent politicians”
and the District Attorney took issue with the attorney’s
quote as it painted their efforts to reduce crime in a bad
light, leading to the attorney’s demotion and resignation.
Id. at 412. The Second Circuit held that the attorney’s
remarks were on matters of public concern. It rejected
the argument that the speech was not entitled to
protection simply because they were not framed in a
manner calculated to “address[] a matter of public
concern.” Id. at 415; see id. at 417. The court instead
looked past the attorney’s “motive,” to the subject matter
of his speech. Id. at 418. Because his statement’s subject
matter “addressed the crime rate in Brooklyn,” and
because “crime rates are inherently a matter of public
concern,” his statement was protected speech. Id.
In Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002),
the court applied that same framework to speech about
race. There, the court confronted the question of
“whether a municipal police department may, without
violating the First Amendment’s guarantee of freedom of
speech, terminate a police officer by reason of the officer’s
anonymous dissemination of bigoted racist anti-black and
anti-semitic materials.” Id. at 144. Officer Pappas was a
New York City policeman that was fired after he mailed
“offensive racially bigoted materials” to another police
department. Id. at 144-45. The majority simply
16
“assume[d]” that his “mailings constituted speech on a
matter of public concern” and held that New York City
lawfully fired him under Pickering’s balancing test. Id. at
146. Then-Judge Sotomayor wrote separately and
affirmed that the panel’s assumption was “correct” under
the Second Circuit’s precedent which holds that “[i]ssues
of race relations are ‘inherently of public concern.’” Id. at
154 (Sotomayor, J., dissenting) (citation omitted). This
was true even though the case involved a “scenario of an
employee speaking on issues of race relations entirely
unrelated to his job.” Id. at 156 (Sotomayor, J.,
dissenting).
c. The law in the Ninth Circuit is also in square
conflict with settled law in the Third Circuit. In the Third
Circuit, so long as “[t]he content of speech . . . addresses a
social or political concern of the community” it
“implicat[es] significant First Amendment concerns.”
Gorum v. Sessoms, 561 F.3d 179, 187 (3d Cir. 2009);
accord id. (holding that if the speech at least “touch[es] on
broad social or policy issues,” its content weighs in favor
of constitutional protection (citation omitted); Watters v.
City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995) (“The
content of [plaintiff’s] speech on its face appears to
address a matter of significant public concern.” (emphasis
added)).
The decision in Jorjani v. New Jersey Institute of
Technology, 151 F.4th 135 (3d Cir. 2025) shows just how
engrained that rule is in the Third Circuit. Jason Jorjani
taught philosophy at the New Jersey Institute of
Technology. During his time there he “formed the Alt
Right Corporation,” that, among other things, “argued
that ‘human racial equality’ is a ‘left-wing myth.’” Id. at
138. Jorjani was also secretly taped during a conversation
at a pub in which he predicted that “[w]e will have a
Europe, in 2050, where the banknotes have Adolf Hitler,
Napoleon Bonaparte, Alexander the Great. And Hitler
17
will be seen like that: like Napoleon, like Alexander, not
like some weird monster, who is unique in his own
category.” Id. at 139 (citation omitted). When that
recording became public, the Institute’s President
condemned him to the rest of the faculty and placed him
on paid leave. Id. The Institute began an investigation into
his activities and eventually refused to renew his contract.
Id. at 139-40. Jorjani sued, alleging First Amendment
retaliation.
It was so obvious under the Third Circuit’s caselaw
that Jorjani’s speech touched on matters of public concern
that even after the parties agreed that it did, the Third
Circuit still went out of its way to “join” the parties’
agreement. Id. at 141 & n.7. The panel recited Connick’s
formulation that “speech relating ‘to any matter of
political, social, or other concern to the community’ is one
that involves matters of public concern.” Id. at 141 n.7. It
then held that “Jorjani’s speech easily falls within those
bounds because it tackles matters of race, which although
carries the potential to be inflammatory, is speech
inherently of public concern.” Id. (emphasis added)
(citation omitted).
d. Ninth Circuit law similarly conflicts with the law in
the First, Fourth, Seventh, and D.C. Circuits as well, all
of which look to the raw subject matter of the speech at
issue before holding that speech related to racial matters
is inherently on a matter of public concern. See, e.g.,
Alston v. Town of Brookline, 997 F.3d 23, 48 (1st Cir.
2021) (“[P]rotest[ing] racial discrimination” is
“‘inherently’ a matter of public concern,” and to say
otherwise “is little more than gaslighting.”); Berger v.
Battaglia, 779 F.2d 992, 993 (4th Cir. 1985) (police officer’s
“off-duty” performances at bars, clubs, and taverns while
“in blackface makeup and a black wig,” held protected as
on a matter of public concern); Schneiter vs. Carr, 148
F.4th 438, 447 (7th Cir. 2025) (“agree[ing]” that public
18
employee’s Facebook posts containing racially charged
memes were on matters of public concern); Tao v. Freeh,
27 F.3d 635, 639 (D.C. Cir. 1994) (finding “no difficulty
concluding that [plaintiff] has met her burden of showing
that her complaint about racial discrimination was
protected speech”).
3. In direct conflict with these circuits the Fifth, Sixth,
Tenth, and Eleventh Circuits, and now the Ninth, take the
opposite approach. For these circuits, it is not enough that
the subject matter of the speech simply touches on a
matter of public concern; rather, the “purpose,”
“direction,” “point,” “intent,” “function,” “core,” or
“framing” of the speech must be to inform the public on a
matter of public concern.
a. As Judge Callahan explained in her dissent below,
in the Tenth Circuit speech is not on a matter of public
concern unless it is “framed in a manner calculated to
ignite that public interest.” Morris, 666 F.3d at 663; see
also, e.g., Leverington v. City of Colorado Springs, 643
F.3d 719, 727 (10th Cir. 2011) (“In order for a public
employee’s speech to be ‘of public concern,’ it is not always
enough that its subject matter could in certain
circumstances, be the topic of a communication to the
public that might be of general interest. What is actually
said on that topic must itself be of public concern.”).
The Tenth Circuit applied that approach in Dixon v.
Kirkpatrick, 553 F.3d 1294 (10th Cir. 2009), to speech
criticizing racism. In Dixen, a former employee of the
Oklahoma Board of Veterinary and Medical Examiners
sued the Board for firing her for speaking to her personal
veterinarian about the Board’s participation in a
dogfighting investigation. The employee raised several
issues to the veterinarian, including her belief that the
investigation was an improper use of the Board’s
resources. Id. at 1299. She also criticized the lead
investigator for having “made racist and sexist remarks.”
19
Id. at 1299-1300. The Tenth Circuit held that while her
conversations about “the supposedly improper use of [the
Board’s] resources to investigate the dogfighting ring
involved matters of public concern,” “none of the other
subjects” did, including her criticism of the investigator’s
racist remarks. Id. at 1303
b. The Eleventh Circuit has the same rule. In Alves v.
Board of Regents of the University System of Georgia,
804 F.3d 1149 (11th Cir. 2015), the court considered
“whether a written grievance by five university
employees alleging mismanagement by their supervisor
which preceded their termination is entitled to First
Amendment protection.” Id. at 1153. That grievance
alleged racial discrimination, including treating “staff of
color” differently than “white-identified staff.” Id. at 1157;
see id. at 1166.
The court held that the grievance was unprotected
because it was not on a matter of public concern. The court
looked not to “whether the public would be interested in
the topic of the speech at issue,” but “whether the purpose
of the employee’s speech was to raise issues of public
concern.” Id. (emphasis modified) (cleaned up). It
acknowledged that the grievance “may touch up against
matters of public concern,” but ultimately found the
speech unprotected because “it [was] not directed to such
concerns.” Id at 1167.
c. The Sixth Circuit similarly requires that the “point”
and “purpose” of the speech at issue must be to ignite
public concern in order to merit First Amendment
protection. In Dambrot v. Central Michigan University,
55 F.3d 1177 (6th Cir. 1995), the Sixth Circuit refused to
find that a football coach’s racist locker-room speech was
on a matter of public concern. The “proper inquiry,” the
Sixth Circuit held, “[i]s not [into] what might incidentally
be conveyed by the fact that the employee spoke in a
certain way, but the point of the speech in question.” Id.
20
at 1187 (cleaned up). “The court must ask to what purpose
the employee spoke.” Id. (emphasis added). After finding
that the coach’s speech was “intended to be motivational”
only, it held that it was not “on a matter of public concern.”
Id. at 1187-88 (citation omitted).
d. The Fifth Circuit has the same stringent rule. In
Terrell v. University of Texas System Police, 792 F.2d
1360 (5th Cir. 1986), a police chief fired an officer after
reading the officer’s secret diary, which criticized the
chief. Id. at 1361. The Fifth Circuit explained its view that
“[b]ecause almost anything that occurs within a public
agency could be of concern to the public, we do not focus
on the inherent interest or importance of the matters
discussed by the employee.” Id. at 1362. “[T]he mere fact
that the topic of the employee’s speech was one in which
the public might or would have had a great interest is of
little moment.” Id. The officer was “not terminated for
speaking ‘as a citizen upon matters of public concern,’”
because he “made no effort to communicate the contents
of the notebook to the public,” and all of his writings “were
a wholly intragovernmental concern.” Id. at 1362-63.
The Fifth Circuit applied this approach in Gibson v.
Kilpatrick, 838 F.3d 476 (5th Cir. 2016), to hold that a
police chief’s lawsuit against the mayor alleging First
Amendment retaliation and discrimination was not, itself,
speech on a matter of public concern. The Fifth Circuit
explained that the “content” must be “define[d]” by the
“function[]” that the speech served. Id. at 482-83. So
although the public may be interested in “how the mayor
treats the police chief,” “the content of [plaintiff’s] suit
was a matter of private concern” because “[a]t its core” it
was “an internal grievance.” Id. at 484-85 (citation
omitted).
Similarly, in Graziosi v. City of Greenville
Mississippi, 775 F.3d 731 (5th Cir. 2015), a police officer
posted a series of messages on Facebook criticizing her
21
chief’s leadership, including his decision to not “send a
representative to the funeral” of another officer that was
recently killed. Id. at 734. The Fifth Circuit acknowledged
that her posts started by addressing subjects that “can be
‘fairly considered as relating to any matter of political,
social, or other concern to the community,’” but then
found that it “devolved into a rant,” that was “akin to an
internal grievance, the content of which is not entitled to
First Amendment protection.” Id. at 738.
e. The Ninth Circuit has now embraced that same
motive requirement, placing it squarely alongside the
Fifth, Sixth, Tenth, and Eleventh Circuits. The decision
below places the Ninth Circuit firmly on the minority side
of the divide. The panel did not dispute that petitioner
spoke as a private citizen, off duty, and outside the
workplace. Nor did it dispute that the speech concerned
racist imagery—precisely the kind of controversial social
subject the majority of circuits treat as inherently of
public concern. Instead, the panel held that petitioner’s
speech received no First Amendment protection because
it was not “framed in a manner calculated to ignite th[e]
public interest.” Pet. App. 13a (quoting Morris, 666 F.3d
at 663). In the panel’s view, petitioner’s personal motive
to express “exasperation” at receiving racist images,
rather than a desire to broadly condemn racism, rendered
the speech unprotected. Pet. App. 11a.
That is the minority rule in its purest form. Like the
Fifth, Sixth, Tenth, and Eleventh Circuits, the Ninth
Circuit conditioned constitutional protection not on the
subject of the speech, but on its perceived “point,”
“purpose,” or “framing.” Under that approach, even
speech on profoundly controversial social issues loses all
First Amendment protection unless a court later deems
that the employee framed her speech in a manner
sufficiently “calculated” to engage in public debate or
advocacy.
22
That holding squarely deepens the 7-5 conflict. There
is no dispute about the facts, the legal question, or the
standard the Ninth Circuit adopted. The decision applies
the purpose rule expressly and without qualification. And
it does so in a context—off-duty citizen speech about
racism—where the disagreement with the majority
subject-matter rule is at its sharpest.
4. Resolving the entrenched 7-5 split here would not
only restore uniformity on a recurring question, but also
provide much-needed doctrinal clarity in an area where
courts and commentators have struggled for decades.
Jurists have long recognized that applying the public
concern test is “notoriously difficult.”1 As this Court has
said multiple times “the boundaries of the public concern
test are not well defined.” Snyder, 562 U.S. at 452
(quoting San Diego, 543 U.S. at 83). Scholars and
commentators have similarly recognized the doctrinal
“confusion” in this area.2 The Court’s intervention would
See, e.g., Pet. App. 19a (Judge Callahan explaining “[t]he public
concern test is a notoriously difficult one to apply”); Zen Grp., Inc.
v. Agency for Health Care Admin., 80 F.4th 1319, 1330 (11th Cir.
2023) (“Whether speech and petitions by government employees
and contractors constitute matters of public concern can be difficult
to discern.”); Ohlson v. Brady, 9 F.4th 1156, 1158 (9th Cir. 2021)
(“often … difficult to draw the line”).
2
See Merrick T. Rossein, Employment Discrimination Law and
Litigation § 25:27 (2025) (calling “[p]ublic concern” “a nebulous legal
concept often defined by circular cross-references”); see also MaryRose Papandrea, The Free Speech Rights of Off-Duty Government
Employees, 2010 BYU L. Rev. 2117, 2145-50 (2010) (discussing
“[t]he doctrinal confusion surrounding the public concern inquiry”);
Randy J. Kozel, Reconceptualizing Public Employee Speech, 99
Nw. U. L. Rev. 1007, 1008-09, 1026-27 (2005) (explaining the
Supreme Court “has not been able to articulate clear guidelines for
lower courts to follow in deciding which employee speech should be
protected” and there is “little predictability as to whether speech
will be deemed of public concern”); Cynthia L. Estlund, Speech on
Matters of Public Concern: The Perils of an Emerging First
1
23
bring needed clarity to a foundational First Amendment
doctrine and ensure that public employees nationwide
receive consistent protection for their off-duty speech on
controversial subjects.
*****
The circuits have adopted two incompatible
conceptions of what it means for public-employee speech
to address a matter of public concern. The decision below
places the Ninth Circuit firmly and expressly on the
minority side of that divide. A more consequential split on
such a basic threshold First Amendment question is hard
to imagine. The depth and breadth of the conflict confirm
that the issue is recurrent and outcome-determinative.
The Court should resolve it.
II. THE DECISION BELOW IS WRONG
A. The panel’s conclusion that petitioner’s criticism of
racist imagery did not address a matter of public concern
is irreconcilable with this Court’s precedents and with the
principles that animate the Pickering/Connick
framework. As Judge Callahan explained, “content is
king,” and petitioner’s speech—condemning racist
imagery—“unquestionably,” Pet. App. 28a n.3, “touche[d]
on a topic of social or political concern to some segments
of the general public,” placing it squarely within the
heartland of First Amendment protection, Pet. App. 34a35a (cleaned up); see Janus, 585 U.S. at 913-14.
Amendment Category, 59 Geo. Wash. L. Rev. 1, 3 (1990) (explaining
that the introduction of the “public concern” concept subjected
public employee speech to the “vagaries of judicial line-drawing”
which “should condemn the entire undertaking”); Ailsa W. Chang,
Note, Resuscitating the Constitutional “Theory” of Academic
Freedom: A Search for a Standard Beyond Pickering and Connick,
53 Stan. L. Rev. 915, 941 (2001) (calling the public concern
requirement “a confusing hurdle”).
24
That conclusion follows directly from Connick. See
Reuland, 460 F.3d at 418; see also Sousa, 578 F.3d at 173.
Connick held that speech addresses a matter of public
concern when it can “be fairly considered as relating to
any matter of political, social, or other concern to the
community.” 461 U.S. at 146. The Court thus made clear
that the inquiry turns primarily on the content of the
speech, not its form or the speaker’s motive. Id. at 147-48;
see also Snyder, 562 U.S. at 454. This Court developed the
public-concern requirement to screen out internal
workplace grievances and disputes “of personal interest”
to the employee. Connick, 461 U.S. at 147. Petitioner’s
texts—sent off duty, years before any employment
dispute, discussing racist imagery—are the opposite of
what Connick sought to exclude. As Judge Callahan
emphasized, her speech “do[es] not fall in the realm of
workplace grievances” and was “wholly unrelated to her
job or her employer.” Pet. App. 19a.
The conclusion also follows directly from Rankin v.
McPherson, 483 U.S. 378 (1987). In Rankin, a clerical
employee privately remarked that she hoped that if
assassins targeted the President again she “hope[d] they
[would] get him.” 483 U.S. at 381-82. This Court held that
the remark “plainly dealt with a matter of public concern”
because it was made during a conversation “addressing
the policies of the President’s administration.” Id. at 386.
The Court did not ask whether the statement was
intended as advocacy, whether it was intended to inform
public debate, or whether the speaker sought to “ignite”
public interest. It was enough that the subject of the
speech was a matter of political or social concern.
That conclusion also follows from Snyder which
applied the content prong by asking whether “[t]he
‘content’” of the signs at issue in the case “relates to broad
issues of interest to society at large, rather than matters
of ‘purely private concern.’” 562 U.S. at 454 (quoting Dun
25
& Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S.
749, 759 (1985)). Their content was of public interest
because “the issues they highlight—the political and
moral conduct of the United States and its citizens, the
fate of our Nation, homosexuality in the military, and
scandals involving the Catholic clergy—are matters of
public import.” Id.
Here, the subject of petitioner’s speech—racist
imagery—is unquestionably a matter of political and
social concern. Under Rankin, that ends the analysis.
Indeed, petitioner’s texts are far easier to classify as
public-concern speech than the remark in Rankin.
Petitioner’s messages expressly condemned racist
images; they did not require any inferential leap to
identify the topic as one of public significance. As Judge
Callahan put it, speech on racism “is unquestionably a
matter of public import.” Pet. App. 28a n.3.
The Ninth Circuit majority reached the opposite
conclusion only by misreading a sentence in Rankin. The
panel quoted Rankin’s statement that “[t]he
inappropriate or controversial character of a statement is
irrelevant” to whether it addresses a matter of public
concern, 483 U.S. at 387, and treated that language as if
the Court had said that the controversial subject of the
speech is irrelevant. Pet. App. 11a-12a. No one reading
Rankin could draw that conclusion. Rankin did not hold
that the public-concern inquiry ignores whether the
speech concerns a controversial public issue. It held only
that the “character” of the remark, its form or tone, does
not matter—i.e., a statement does not lose First
Amendment value because it is “inappropriate” or
“controversial” to say one hope’s an assassin takes the
President’s life. The Ninth Circuit turned that principle
on its head, using Rankin to diminish the public
significance of petitioner’s criticism of racist imagery
precisely because the texts themselves were, in the
26
panel’s view, uncontroversial. See Pet. App. 11a-13a. That
reading is not just mistaken, it is the inverse of what
Rankin held.
The decision below mixed the speech’s “form” and
“context”—its private nature, its limited audience, and
petitioner’s failure to cast it as public commentary—into
the content prong. But those are separate prongs that
have their own role in the public concern analysis. Snyder,
562 U.S. at 454
Judge Callahan captured the point: By conditioning
protection on whether the employee’s speech is “framed
in a manner calculated to ignite th[e] public interest,”
Pet. App. 13a (quoting Morris, 666 F.3d at 663), the Ninth
Circuit adopted a rule foreign to the Pickering/Connick
framework and flatly inconsistent with this Court’s cases.
Under this Court’s precedents, petitioner’s condemnation
of racist imagery—an issue of enduring social and political
concern—falls squarely within the category of speech
entitled to First Amendment protection. The panel’s
contrary conclusion reflects a fundamental misapplication
of Connick and Rankin, collapses content into form, and
limits the scope of speech on matters of public concern in
a way this Court has never endorsed.
B. Even assuming the panel were correct that
petitioner’s speech did not involve a matter of public
concern, it erred in concluding that as a result it receives
no First Amendment protection at all. This Court has
recognized that when public employees “speak or write on
their own time on topics unrelated to their employment,”
the Constitution affords protection “absent some
governmental justification ‘far stronger than mere
speculation.’” San Diego, 543 U.S. at 80 (quoting NTEU
513 U.S. at 475). The underlying principle is
straightforward: when speech occurs off duty and outside
the workplace, the government’s interest as an employer
is at its nadir. NTEU, 513 U.S. at 470. That is especially
27
so where, as the panel held, the speech is of no public
concern. In those circumstances, the First Amendment’s
protections increase—they do not disappear entirely as
the panel held.
This Court has never applied Pickering and Connick
to a purely private, off-duty exchange between friends
that is concededly unrelated to work. The cases applying
that framework have involved workplace grievances,
employee conduct directed at co-workers or supervisors,
or public commentary by employees whose speech bore
some connection—however tangential—to official
responsibilities. See, e.g., Pickering, 391 U.S. at 564 (letter
to newspaper about school funding); Connick, 461 U.S. at
140-41 (internal questionnaire about workplace policies);
Lane v. Franks, 573 U.S. 228, 231-33 (2014) (public
testimony about fraud); Waters v. Churchill, 511 U.S. 661,
664-65 (1994) (speech among co-workers in the
workplace). The panel’s extension of the public-concern
threshold to off-duty, private speech unrelated to work
creates precisely the “anomalous result[s]” some lower
courts have warned against: the government has more
power to discipline private, off-duty conversations of no
public interest than it does to regulate public employee
advocacy that unquestionably touches on political issues.
Locurto v. Giuliani, 447 F.3d 159, 174-75 (2d Cir. 2006).
NTEU points the other way. There, this Court held
that when the government regulates the off-duty speech
of its employees, the government must justify its
restriction with more than speculation, because the risk of
workplace disruption is attenuated. 513 U.S. at 470. The
panel majority’s rule—holding that off-duty speech on
matters of no public concern receives no protection—
cannot be reconciled with that principle. It creates a First
Amendment gap in which private, off-duty conversations
fall entirely outside constitutional scrutiny simply
28
because they are not “public-facing.” That gap finds no
support in this Court’s decisions.
Because petitioner’s speech involved off-duty citizen
expression with no workplace nexus, it should have been
treated as presumptively protected. The panel’s contrary
rule is inconsistent with NTEU, with the basic structure
of Pickering’s balancing framework, and with the First
Amendment’s protection of citizen speech outside the
workplace.
III. THIS CASE IS THE IDEAL VEHICLE TO
RESOLVE AN ENTRENCHED CONFLICT OVER
PUBLIC EMPLOYEES’ CORE SPEECH RIGHTS
The question presented is of obvious legal and
practical importance. The circuit conflict now spans
twelve courts of appeals, with two firmly opposed
approaches to a foundational First Amendment inquiry.
The definition of “public concern” is the threshold that
determines whether public employees receive any
constitutional protection from employer retaliation for
their off-duty speech. Millions of federal, state, and local
government employees depend on a clear and uniform
rule. Yet today, constitutional protection for the same offduty speech on controversial subjects varies by
geography alone.
1. The practical importance of the question presented
is substantial. The public-concern standard governs
teachers, police officers, corrections officers, professors,
and countless other government employees at the federal,
state, and local levels. When the standard differs across
circuits, so do the speech rights of those employees. As it
stands a police officer in the Eighth Circuit will receive
constitutional protection for writing a controversial
message about race while an identical officer in the Ninth
Circuit will receive none. Such disparities undermine the
uniform operation of the First Amendment in an area
where clarity is indispensable.
29
Members of this Court have recognized the urgency
of safeguarding public employees’ speech rights. See
MacRae v. Mattos, 145 S. Ct. 2617, 2620 (2025) (Thomas,
J., statement respecting denial of certiorari) (explaining
how often “government employers may find it convenient
to attempt to restrict disfavored or unpopular speech in
the name of preventing disruption”) (cleaned up); see also
Kennedy v. Bremerton School Dist., 586 U.S. 1130, 11321133 (2019) (statement of Alito, J., respecting denial of
certiorari) (expressing concern about the Ninth Circuit’s
approach to public-school employees’ free-speech rights).
Modern communication technologies make the need
for clarity even more acute. They have transformed how
speech is created, stored, and accessed, raising “a raft of
public policy issues” far beyond those contemplated when
Pickering and Connick were decided. Moody v.
NetChoice, LLC, 603 U.S. 707, 716 (2024). Off-duty speech
that once would have vanished is now preserved
indefinitely and can be reviewed years later by a public
employer. In this environment, uncertainty about the
public-concern standard creates substantial risk for
employees who speak about controversial issues—
precisely the speech the First Amendment traditionally
protects most strongly.
The question presented is especially important
because public-employee speech about controversial
subjects is among the most valuable speech in our society.
Government employees are often the individuals “most
likely to have informed and definite opinions” on matters
of public importance and are uniquely positioned to shed
light on the functioning of government institutions.
Pickering, 391 U.S. at 572. The First Amendment
protects such speech, in part, because it enables the
government to better serve the public by ensuring that
citizens who work for the government are not discouraged
from speaking on matters about which they have special
30
knowledge. Lane, 573 U.S. at 236. A rule that declines to
treat off-duty speech on controversial subjects as speech
on a matter of public concern risks depriving the public of
precisely the information that the First Amendment is
designed to encourage. Id. Citizens would much rather
know what public servants actually believe about
controversial topics than have them conceal their beliefs.
2. The legal significance of the issue is equally
profound. The public concern requirement already sits
uneasily alongside the Court’s other First Amendment
precedents. The Court has emphasized for decades that
there is no hierarchy of First Amendment importance
where some speech is entitled to more protection than
other speech because it is more important. “The First
Amendment’s guarantee of free speech does not extend
only to categories of speech that survive an ad hoc
balancing of relative social costs and benefits. . . . Our
Constitution forecloses any attempt to revise that
judgment simply on the basis that some speech is not
worth it.” United States v. Stevens, 559 U.S. 460, 470-72
(2010); Cohen v. California, 403 U.S. 15, 25 (1971)
(similar); Winters v. New York, 333 U.S. 507, 510 (1948)
(similar). The restrictive minority approach to publicemployee speech—conditioning protection on whether a
court later believes the employee conveyed her views in a
manner “calculated” to ignite public interest—cannot be
reconciled with these principles. Allowing such a
fractured and inconsistent body of doctrine to persist
threatens coherence across the Court’s First Amendment
jurisprudence.
3. This case is the ideal vehicle to resolve this Circuit
conflict. The facts are undisputed. The speech occurred
off duty, outside the workplace, and in petitioner’s
capacity as a private citizen. The Ninth Circuit decided
the public-concern question as a pure matter of law on the
pleadings and expressly adopted the minority rule that
31
conflicts with the rule applied in seven other circuits. No
alternative grounds complicate the posture. This case
cleanly presents the question and offers the Court a
straightforward opportunity to clarify how the publicconcern test applies to modern, off-duty speech on
controversial subjects like race.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
KARIN M. SWEIGART
ANTHONY J. FUSARO
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
ANDREW T. TUTT
Counsel of Record
CASEY CORCORAN
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave, NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
STEPHEN MAGERAS
ARNOLD & PORTER
KAYE SCHOLER LLP
250 W 55th Street
New York, NY 10019
(212) 836-8000
DECEMBER 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.