Amicus Curiae Brief — Kate Adams, Petitioner v. Sacramento County, California, et al.

Supreme Court briefJan 9, 2026

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No. 25-672

IN THE

Supreme Court of the United States

KATE ADAMS, PETITIONER,

SACRAMENTO COUNTY, CALIFORNIA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF FIRST AMENDMENT LAWYERS

ASSOCIATION AS AMICUS CURIAE IN SUPPORT

OF PETITIONER

GARY S. EDINGER

Benjamin, Aaronson,

Edinger & Patanzo, P.A.

305 N.E. 1st Street

Gainesville, FL 32601

BENJAMIN GRUENSTEIN

Counsel of Record

ALEXANDER BREINDEL

EMILY MILLER

Cravath, Swaine & Moore LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

(212) 474-1000

bgruenstein@cravath.com

Counsel for Amicus Curiae

January 9, 2026

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT .....................................1

ARGUMENT ...............................................................3

Government Employee Speech Is Entitled to

First Amendment Protection When It

Relates to a Matter of Public Concern, Even

When It Is Communicated in Private .................3

II.

The Ninth Circuit’s Ruling Conflicts With

This Court’s Decisions Guaranteeing First

Amendment Protection to Government

Employees, Even for Private Speech ..................7

CONCLUSION ..........................................................15

TABLE OF AUTHORITIES

Cases

Page(s)

Connick v. Myers,

461 U.S. 138 (1983) ................................ 3, 4, 12, 13

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................... 13

Givhan v.

Western Line Consolidated School District,

439 U.S. 410 (1979) ........................................... 4, 10

Hernandez v. City of Phoenix,

43 F.4th 966 (9th Cir. 2022) ................................... 8

Leverington v. City of Colorado Springs,

643 F.3d 719 (10th Cir. 2011) ................................. 9

Pickering v. Board of Education,

391 U.S. 563 (1968) ............................................. 3, 6

Rankin v. McPherson,

483 U.S. 378 (1987) ................................... 4, 5, 6, 12

Snyder v. Phelps,

562 U.S. 443 (2011) ................................................. 4

Stanley v. Georgia,

394 U.S. 557 (1969) ................................................. 5

United States v.

National Treasury Employees Union,

513 U.S. 454 (1995) ................................................. 6

iii

Page(s)

Other Authorities

Amy Adler & Jeanne C. Fromer,

Memes on Memes and the New Creativity,

97 N.Y.U. L. Rev. 453, 478 (2022) ........................ 10

Jennifer M. Kinsley,

Private Free Speech,

58 U. Louisville L. Rev. 309, 324 (2020) ................ 5

Neil M. Richards,

The Puzzle of Brandeis, Privacy, and Speech,

63 Vand. L. Rev. 1295, 1347 (2010) ........................ 5

INTEREST OF AMICUS CURIAE 1

The First Amendment Lawyers Association

(FALA) is a nonpartisan, nonprofit bar association of

attorneys throughout the United States and

elsewhere whose practices emphasize the defense of

freedom of speech and of the press. Since its founding,

FALA’s members have been involved in many of the

nation’s landmark free expression cases, including

cases before this Court. See, e.g., Ashcroft v. Free

Speech Coal., 535 U.S. 234 (2002) (successful

challenge to Child Pornography Prevention Act);

United States v. Playboy Ent. Grp., Inc., 529 U.S. 803

(2000) (successful challenge to “signal bleed” portion

of Telecommunications Act). In addition, FALA has a

tradition of submitting amicus curiae briefs, including

to this Court, on issues pertaining to the First

Amendment. See, e.g., Masterpiece Cakeshop, Ltd. v.

Colo. Civil Rights Comm’n, 584 U.S. 617 (2018);

Susan B. Anthony List v. Driehaus, 573 U.S. 149

(2014).

SUMMARY OF ARGUMENT

This Court developed the Pickering balancing

test to weigh a government employee’s interest in

speaking on matters of public concern against the

government’s interest in maintaining an efficient

workplace, thereby calibrating the degree of

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states

that no counsel for a party authored this brief in any part and

that no person or entity, other than amicus curiae and its

counsel, made a monetary contribution to fund its preparation

and submission. Amicus curiae timely notified counsel of record

for all parties of amicus curiae’s intent to file this brief in

accordance with Supreme Court Rule 37.2.

constitutional protection afforded to this type of

speech. Within this framework, this Court has made

clear that government employee speech need not be

conveyed publicly to qualify as speech on a matter of

public concern. Private speech has therefore long

merited First Amendment protection because the

First Amendment safeguards the ability to test, refine

and develop ideas free from compelled exposure or

governmental scrutiny. At the same time, private

speech also typically poses less risk of workplace

disruption, further weakening the government’s

justification for regulating it under Pickering.

Here, however, the Ninth Circuit treated the

private nature of petitioner’s speech—text messages

criticizing racist memes—as reason to deny her

constitutional protection. The court relied on the

private nature of petitioner’s speech at each step of

the public concern analysis to downplay the fact that

the memes promoted racism and that petitioner’s

speech condemned it. By deciding that petitioner’s

speech was not of public concern on the basis that it

was expressed privately, the Ninth Circuit demoted

private speech to an inferior constitutional category,

contradicting this Court’s settled precedents.

Whether petitioner chose to speak privately or

publicly—an increasingly blurred distinction in

modern

digital

communications—should

not

determine whether her speech addressed a matter of

public concern.

As petitioner has demonstrated, this case

provides an ideal vehicle to resolve a mature and

acknowledged circuit conflict related to how courts

decide whether government employee speech

addresses a matter of public concern, and in

particular, whether it must be intended “to ignite

[the] public interest.” Pet. 9. In addition to resolving

that circuit split, this case presents an opportunity for

the Court to correct the Ninth Circuit’s decision

disfavoring privately expressed speech and to reaffirm

this Court’s prior precedents that the First

Amendment protects speech communicated privately.

This is particularly important in the modern digital

age, where social media apps can be used one moment

to communicate among small groups of friends and

the next with the public more broadly, often

independent of the content of the communications.

ARGUMENT

Government Employee Speech Is Entitled

to First Amendment Protection When It

Relates to a Matter of Public Concern,

Even When It Is Communicated in Private.

This Court established the legal standard for

determining whether a government employee’s speech

is protected under the First Amendment in Pickering

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

Pickering, the Court held that, in the context of

government employee speech, the First Amendment

requires a balancing between the interests of the

employee “as a citizen, in commenting on matters of

public concern” and the government’s interest “in

promoting the efficiency of the public services it

performs through its employees.” 391 U.S. at 568. In

Connick v. Myers, the Court subsequently established

a threshold requirement that the employee speech

must address a “matter of public concern” to receive

First Amendment protection. 461 U.S. 138, 144–47

(1983). In order to determine whether the employee’s

speech satisfies this threshold, courts must examine

its “content, form, and context,” id. at 147–148, and

consider “all the circumstances” of the expression,

Snyder v. Phelps, 562 U.S. 443, 454 (2011).

This Court has made clear that government

employee speech on a “matter of public concern”

receives First Amendment protection regardless of

whether the speech is made in public or in private. In

Givhan v. Western Line Consolidated School District,

this Court considered whether a public school teacher

could be fired based on private conversations she had

with her principal in which she expressed concern

that the school’s policies and practices violated a

federal desegregation order. 439 U.S. 410 (1979). In a

unanimous opinion authored by then-Associate

Justice Rehnquist, the Court held that its decisions in

Pickering and subsequent cases “do not support the

conclusion that a public employee forfeits his

protection against governmental abridgment of

freedom of speech if he decides to express his views

privately rather than publicly.” Id. at 414.

The Court affirmed this principle in Rankin v.

McPherson, in which it held that a public clerical

employee could not be fired for commenting, after

hearing about an assassination attempt against the

President, that “[i]f they go for him again, I hope they

get him.” 483 U.S. 378, 380 (1987). The Court focused

on whether the employee’s speech satisfied the public

concern test and explicitly rejected the view that the

private nature of the statement—namely, that it was

made “during a private conversation with a coworker”—deprived the employee of First Amendment

protection under Pickering. Id. at 393, 386 n.11 (“The

private nature of the statement does not, contrary to

the suggestion of the United States . . . vitiate the

status of the statement as addressing a matter of

public concern.”).

This Court’s protection of private speech in

Givhan and Rankin reflects the value that the First

Amendment attaches to all speech, no matter how

widely it is disseminated. The First Amendment

protects not only the right to share information and

ideas in public, but also “the right to be free, except in

very limited circumstances, from unwanted

governmental intrusions into one’s privacy.” Stanley

v. Georgia, 394 U.S. 557, 564 (1969). This protection

endures because governmental intrusion into private

expression can chill the emergence and development

of ideas before they are ready for public expression.

See, e.g., Jennifer M. Kinsley, Private Free Speech, 58

U. Louisville L. Rev. 309, 324 (2020) (“People are more

likely to exercise their right to free speech when

protected by the belief that their expression will

remain private . . . .”); Neil M. Richards, The Puzzle of

Brandeis, Privacy, and Speech, 63 Vand. L. Rev. 1295,

1347 (2010) (“Surveillance and interference can

threaten the generation of new and potentially

unpopular ideas, which can benefit from nurturing

and testing before they are ready to be disclosed

publicly.”). Because privacy plays a vital role in

fostering free thought, the protection of private speech

is not peripheral to the First Amendment’s aims but

rather is “a necessary precondition to the creation of

expression” itself. Kinsley, supra, at 324.

These First Amendment interests are even more

pronounced in the context of government employee

speech, where private expression often poses little

risk to workplace efficiency, yet is uniquely vulnerable

to retaliation. Under Pickering, the government’s

interest in regulating employee speech arises from its

interest “in promoting the efficiency of the public

services it performs”—not from any generalized power

to police employee communications. 391 U.S. at 568.

Accordingly, this Court’s Pickering balancing analysis

has focused on factors such as whether speech

“impedes the performance of the speaker’s duties or

interferes with the regular operation of the

[government employer’s] enterprise.” Rankin, 483

U.S. at 388.

Privately expressed speech poses little risk of

such workplace disruption. See id. at 389 (considering

the fact that the speech “took place in an area to which

there was ordinarily no public access” as evidence that

the government employer’s workplace efficiency was

not disturbed). The Court recognized this in United

States v. National Treasury Employees Union, where

it invalidated restrictions on government employee

speech that occurred largely outside the workplace,

explaining that it was “unable to justify” such limits

on the basis of the “immediate workplace disruption”

concerns animating Pickering. 513 U.S. 454, 470

(1995). In short, where private speech is concerned,

the government’s interest in regulating employee

speech is at its nadir, while the employee’s interest in

privately expressing, testing and developing new

ideas without fear of reprisal is at its apex.

Privately expressed speech thus occupies an

important space both within First Amendment

doctrine generally and within the governmentemployee speech framework in particular. Consistent

with that understanding, this Court has made plain

that privately expressed speech receives no less

protection under the First Amendment than speech

made in public. Thus, as discussed in the next section,

the Ninth Circuit erred when it denied petitioner her

First Amendment rights because her speech was

shared privately.

II. The Ninth Circuit’s Ruling Conflicts With

This Court’s Decisions Guaranteeing First

Amendment Protection to Government

Employees, Even for Private Speech.

Despite this Court’s clear precedent protecting

privately expressed government employee speech, the

court below repeatedly relied on the private nature of

petitioner’s text messages to conclude that her speech

did not address a matter of public concern. In

examining the “content” of the speech, the court relied

on the fact that petitioner communicated through

private texts to infer that the message she intended to

convey was exasperation about receiving racist spam

messages, rather than disgust with the messages

themselves. And, in analyzing the “form and context”

of the speech, the court found that the fact that the

texts were intended for a limited audience further

confirmed that they did not address a matter of public

concern. Notably, the court did so in the context of an

interlocutory appeal of a motion to dismiss. Rather

than accept petitioner’s description of her speech as

decrying racism, as required on a motion to dismiss,

both the district court and the court of appeals

characterized her speech in a manner contrary to the

complaint based on the private nature of her text

messages.

The court of appeals correctly began its analysis

by examining the content of petitioner’s speech, but

misconstrued both the message conveyed by the

images sent to petitioner and the message that she

conveyed about those images. As the court described

the images, one “depicted a white man spraying a

young black child with a hose and contained a

superimposed offensive racial epithet,” and the other

“included an image of a comedian, with superimposed

text containing an offensive racial slur.” Pet. App. 4a.

Petitioner sent the images to two co-workers, who

were also friends, writing to one: “Some rude racist

just sent this!!” Pet. App. 4a.

The court found that these “texts and [the]

distribution of the images speak only of [petitioner’s]

exasperation at being sent the images, which is an

issue of personal—not public—concern.” Pet. App.

11a. The court correctly noted that speech of personal

interest usually concerns “‘personal employment

dispute[s]’ or ‘complaints over internal office affairs,’”

Pet. App. 10a (citing Hernandez v. City of Phoenix, 43

F.4th 966, 977 (9th Cir. 2022)) and that these types of

speech were not at issue here, see Pet. App. 5a (“The

record is clear that the messages were intended for a

purely private audience of several friends in the

context of private, social exchanges during ‘a friendly,

casual text message conversation.’”). Thus, the court

based its conclusion that petitioner’s text messages

were of personal interest on the fact that she both

privately received the offensive images and then

privately conveyed her disgust about them. See Pet.

App. 11a (“Whether she was privately sent offensive,

racist images outside the workplace, without more, is

not a matter of public concern within the meaning of

Pickering.”) (emphasis added); see also Pet. App. 12a

(“Something more than discussing an offensive racial

comment, communicated in a private text, is required

for speech to involve a matter of public concern.”)

(emphasis added).

However, the fact that petitioner received and

sent these images using private channels is not a basis

to construe petitioner’s message as personal

exasperation about receiving these images rather

than as “condemning racist images,” as she alleged in

her amended complaint. Pet. App. 28a (Callahan, J.,

dissenting). In fact, the court offered no basis—other

than the fact that petitioner received these images

privately from an anonymous sender—to narrowly

construe her statement forwarding the images on and

labeling the sender as a “rude racist” as “speech that

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

individual contact” rather than “[s]peech that

addresses the topic of racism as relevant to the

public.” Pet. App. 11a (emphasis added); see Pet. App.

13a (quoting Leverington v. City of Colorado Springs,

643 F.3d 719, 727 (10th Cir. 2011)) (“A statement does

not attain the status of public concern simply because

its subject matter could, in different circumstances,

have been the topic of a communication to the public

that might be of general interest.”) (emphasis added)

(cleaned up).

The court further found that the images

themselves were not a “subject of legitimate news

interest.” Pet. App. 12a. Focused on the fact that these

images were sent privately, see Pet. App. 12a (“When

made, the texts involved a private matter—her receipt

of offensive images transmitted by an anonymous

sender”) (emphasis added), the court ignored that

these images were “memes,” which are typically

widely disseminated, see Amy Adler & Jeanne C.

Fromer, Memes on Memes and the New Creativity, 97

N.Y.U. L. Rev. 453, 478 (2022) (explaining that memes

are “one of the most commonly created, shared, and

consumed types of expression” and are “paradigmatic

of contemporary cultural expression”). That these

memes were, in this instance, sent privately to

petitioner rather than publicly broadcast does not

alter the nature of their content. See Givhan, 439 U.S.

at 413–14. But the court’s myopic determination that

the subject matter was only “private forwarded

offensive messages” rendered petitioner’s speech “not

of interest to the general public.” Pet. App. 13a

(emphasis added).

The court also relied on the private nature of

petitioner’s speech when concluding that “the form

and context—private social texts to a co-worker—

weigh against finding her texts addressed a matter of

public concern.” Pet. App. 14a; see also Pet. App. 16a

(“The form and context of the communications confirm

our conclusion that [petitioner’s] private texts were

only meant to convey a personal grievance about

receiving offensive private texts to her friends in the

course of social conversation, not to comment on a

matter of public concern.”). That petitioner’s

“messages were not posted on social media, nor

otherwise made readily discoverable by anyone other

than those to whom they were directed,” Pet. App. 5a,

should not bear on whether the messages themselves

expressed a matter of public concern. This is

especially true in the modern age of digital

communication, where speakers can, with the press of

a button, choose to send messages to select recipients,

to share with a broader group of friends or to

disseminate to all users of a social media app.

Whether speech addresses a message of public

concern should not turn on the medium through which

it is shared.

As Judge Callahan correctly recognized in her

dissenting opinion, the majority “emphasiz[ed] the

private form of the texts to downplay their content.”

Pet. App. 26a n.2 (Callahan, J., dissenting). The court

found it “evident” that petitioner “received private

offensive texts and complained about receiving them

privately to two friends.” Pet. App. 15a; see also Pet.

App. 15a (“When speech is directed to a limited

audience, and a conversation personal rather than

political in nature, the form and context factors weigh

against concluding that the speech addresses a matter

of public concern.”). The court underscored the private

nature of petitioner’s texts to buttress its dubious

conclusion that the content of the speech did not

address a matter of public concern.

Relying on the private nature of petitioner’s

messages to draw this conclusion about their content

is inconsistent with this Court’s precedents. While the

private context of speech can help inform the analysis

of its content, it cannot render its subject matter of

purely personal concern. For example, in Connick,

this Court analyzed whether several questions on a

questionnaire distributed among co-workers in a

district attorney’s office addressed a matter of public

concern. 461 U.S. at 147–48. Taking into account the

content, form and context of the questions, the Court

concluded that all but one did not address a matter of

public concern because the questions did not “seek to

inform the public” about practices of the district

attorney’s office, nor did they “bring to light” potential

wrongdoing in the office. Id. at 148. The Court thus

considered the purely internal distribution of the

questionnaire to bolster its determination that “the

questionnaire, if released to the public, would convey

no information at all other than the fact that a single

employee is upset with the status quo.” Id.

But the Court also found that one question—

distributed internally on the same questionnaire—did

“touch upon a matter of public concern” because it

addressed fundamental employee rights. Id. at 149.

So context helped illuminate the content of certain

questions but was not determinative as to whether

any individual question touched on a matter of public

concern. See also Rankin, 483 U.S. at 386–87

(considering “context” of statement made during

private conversation and finding that speech “plainly

dealt with a matter of public concern”).

The court below erred in relying on the private

nature of petitioner’s speech to find that it was not of

public concern. It did so both in determining that the

content of the speech was not of public concern

because it was expressed privately and by reinforcing

that determination based on the private context of the

speech. Although context may be appropriately

considered in determining whether speech is of public

concern, this Court’s precedents show that it is not

determinative, but rather one factor among others to

be considered. The court thus disregarded this Court’s

instruction that a government employee’s right to

discuss matters of public concern “is not forfeited by

her choice of a private forum.” Connick, 461 U.S. at

148 n.8.

In concluding that petitioner’s speech did not

address a matter of public concern, the court below

avoided the Pickering balancing test altogether, an

inquiry on which petitioner was well positioned to

prevail. As explained above, private speech like

petitioner’s poses little risk of disrupting or

interfering with orderly government operations. See

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

that government employer restrictions “must be

directed at speech that has some potential to affect the

entity’s operations.”). Rather than acknowledge that

petitioner’s speech had strong potential to override

the limited government interest at stake, the court

below foreclosed any balancing analysis because of the

medium in which the speech occurred.

This case thus presents a worthwhile

opportunity for this Court to reaffirm its prior cases

and confirm that protections long afforded to private

speech apply to modern digital communications no

matter the size of the intended audience. This is an

issue that is likely to recur given the prevalence of text

messaging and social media communications, and

their permanence. Whether a message is shared with

just a few friends or broadcast to the world can turn

on a keystroke, and often does not depend on (or

reflect) the content of the message being sent.

Social media platforms allow users to create

communities; sometimes those users discuss personal

matters with other members of the community,

sometimes they discuss matters of particular

relevance to the community and sometimes they

discuss matters that would be considered of interest

to the general public. While speech of a purely private

nature disseminated over social media would not

satisfy the Connick public concern test, it is difficult

to draw a line between matters discussed over these

channels that are clearly of public concern and other

non-private matters. Such line drawing is made even

more difficult by the fact that communications over

social media are often cryptic (and intentionally so),

and courts are not well suited to discern the content

of the communications conclusively at the motion to

dismiss phase. Given the importance of the Pickering

balancing test to protecting First Amendment rights,

it is critical that courts applying Connick not foreclose

that analysis through questionable threshold

interpretations of the communications themselves.

CONCLUSION

Amicus curiae respectfully urges this Court to

grant the Petition.