FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN HERNANDEZ; ARIZONA 

CONFERENCE OF POLICE AND 

SHERIFFS, an Arizona nonprofit 

corporation; MARK SCHWEIKERT,

Plaintiffs-Appellants,

v.

CITY OF PHOENIX, a municipal 

corporation; JERI WILLIAMS, in her 

official capacity as Chief of Police of 

the Phoenix Police Department; 

SHANE DISOTELL, in his official 

capacity as the Commander of the 

Phoenix Police Professional 

Standards Bureau,

Defendants-Appellees.

No. 21-16007

D.C. No.

2:19-cv-05365-

MTL

OPINION

Appeal from the United States District Court

for the District of Arizona

Michael T. Liburdi, District Judge, Presiding

Argued and Submitted March 10, 2022

Phoenix, Arizona

Filed August 5, 2022
2 HERNANDEZ V. CITY OF PHOENIX

Before: Richard A. Paez, Richard R. Clifton, and 

Paul J. Watford, Circuit Judges. 

Opinion by Judge Watford 

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the 

district court’s dismissal of an action brought pursuant to 

42 U.S.C. § 1983 and Arizona law alleging that: (1) the City 

of Phoenix Police Department retaliated against Sergeant 

Juan Hernandez in violation of his First Amendment rights 

when it took steps to discipline him for posting content to his 

personal Facebook profile that denigrated Muslims and 

Islam; and (2) provisions of the Department’s social media 

policy were overbroad and vague.

The district court rejected plaintiffs’ First Amendment 

retaliation claim on the ground that Hernandez’s speech did 

not address matters of public concern and was therefore not 

entitled to constitutional protection under the balancing test 

established in Pickering v. Board of Education of Township 

High School District 205, Will County, 391 U.S. 563 (1968). 

The court also rejected plaintiffs’ claim that certain 

provisions of the Department’s social media policy were 

facially invalid.

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

has been prepared by court staff for the convenience of the reader.
HERNANDEZ V. CITY OF PHOENIX 3

Analyzing the content, form (time, place, and manner) 

and context of Hernandez’s posts, the panel concluded that 

the posts qualified as speech on matters of public concern. 

While it was true that each of Hernandez’s posts expressed 

hostility toward, and sought to denigrate or mock, a major 

religious faith and its adherents, the Supreme Court has 

made clear that the inappropriate or controversial character 

of a statement is irrelevant to the question of whether it deals 

with a matter of public concern.

Although it seemed likely that Hernandez’s posts could 

impede the performance of his job duties and interfere with 

the Department’s ability to effectively carry out its mission, 

no evidence of actual or potential disruptive impact caused 

by Hernandez’s posts was properly before the panel at this 

stage of the proceedings. The panel therefore reversed the 

district court’s dismissal of plaintiffs’ First Amendment 

retaliation claim and his related claim under the Arizona 

Constitution and remanded for further development of the 

factual record.

The panel held that the district court properly rejected 

plaintiffs’ facial overbreadth challenge to certain provisions 

of the Department’s social media policy, except as to the 

clauses prohibiting social media activity that (1) would cause 

embarrassment to or discredit the Department, or (2) divulge 

any information gained while in the performance of official 

duties, as set forth in section 3.27.9B.(7) of the policy. In 

largely agreeing with the district court, the panel noted that 

most of the challenged restrictions directly promoted the 

same interests that the Supreme Court has already held to be 

valid bases for imposing restrictions on public employee 

speech—government employers have a strong interest in 

prohibiting speech by their employees that undermines the 
4 HERNANDEZ V. CITY OF PHOENIX

employer’s mission or hampers the effective functioning of 

the employer’s operations. 

The Department, however, did not have a legitimate 

interest in prohibiting speech merely because the 

Department might find that speech embarrassing or 

discrediting. The panel noted that virtually all speech that 

lies at the core of First Amendment protection in this area—

for example, speech exposing police misconduct or 

corruption—could be expected to embarrass or discredit the 

Department in some way. In the absence of a developed 

factual record, the panel could not conclude that plaintiffs’ 

facial overbreadth challenge to these clauses failed as a 

matter of law. Addressing section 3.27.9B.(7) of the social 

media policy, the panel held that although the Department 

has a strong interest in prohibiting the disclosure of 

confidential information, this section swept much more 

broadly because it prohibited the disclosure of any 

information gained while on the job, including information 

that could expose wrongdoing or corruption. This provision 

therefore could silence speech that warrants the strongest 

First Amendment protection in this context. Because 

plaintiffs’ challenge was resolved on the pleadings, the 

Department had not yet had an opportunity to produce 

evidence attempting to establish that this provision was 

appropriately tailored.

The panel affirmed the district court’s rejection of 

plaintiffs’ facial vagueness challenge to the same provisions 

discussed above and their municipal liability claim. Like 

many employment policies, the challenged provisions were 

framed in broad and general terms that nonetheless provided 

sufficient guidance to employees as to the types of social 

media posts that are prohibited.
HERNANDEZ V. CITY OF PHOENIX 5 

COUNSEL

Steven J. Serbalik (argued), Steven J. Serbalik PLC, 

Scottsdale, Arizona, for Plaintiffs-Appellants.

Stephen B. Coleman (argued), Pierce Coleman PLLC, 

Scottsdale, Arizona, for Defendants-Appellees.

OPINION

WATFORD, Circuit Judge: 

In 2013, the City of Phoenix’s Police Department 

adopted a new policy governing its employees’ use of social 

media. Among other things, the policy prohibits employees 

from engaging in speech on social media that would be 

“detrimental to the mission and functions of the 

Department,” “undermine respect or public confidence in the 

Department,” or “impair working relationships” of the 

Department. In 2019, the Department concluded that 

Sergeant Juan Hernandez violated the policy by posting 

content to his personal Facebook profile that denigrated 

Muslims and Islam. When the Department took steps to 

discipline Hernandez, he sued, alleging that the Department 

was retaliating against him for exercising his First 

Amendment right to freedom of speech. 

The district court rejected Hernandez’s First 

Amendment retaliation claim on the ground that his speech 

did not address matters of public concern and was therefore 

not entitled to constitutional protection under the balancing 

test established in Pickering v. Board of Education of 

Township High School District 205, Will County, 391 U.S. 

563 (1968). The court also rejected Hernandez’s claim that 
6 HERNANDEZ V. CITY OF PHOENIX

certain provisions of the Department’s social media policy 

are facially invalid. We reverse the dismissal of 

Hernandez’s First Amendment retaliation claim but largely 

affirm the district court’s rejection of his facial challenge to 

the Department’s policy.

I

With the rise in popularity of social media platforms like 

Facebook and Twitter, many employers have adopted 

policies regulating their employees’ use of social media. In 

some instances, those policies govern not only what 

employees may say when speaking while on the job, but also 

what they may say when speaking in their capacity as private 

citizens outside the workplace. Such policies are founded on 

the recognition that what employees say on their own time 

can negatively affect both an employee’s ability to perform 

his or her job duties and the employer’s ability to effectively 

carry out its mission.

The Phoenix Police Department promulgated a policy 

governing its employees’ use of social media in August 2013 

by adopting Operations Order 3.27. Titled “Social Media 

Use Policy,” the order established a comprehensive set of 

regulations and guidelines that apply to the use of social 

media both on and off the job. The policy explicitly covers 

an employee’s “personal use” of social media and, under that 

heading, provides two general admonitions: 

(1) “Department personnel are cautioned their speech and 

related activity on social media sites may be considered a 

reflection upon their position, and, in some instances, this 

Department,” and (2) “Personal social media activity must 

not interfere with work duties or the operation of the 

Department.”
HERNANDEZ V. CITY OF PHOENIX 7 

After the Department adopted the policy, Hernandez, 

while off-duty, posted various news articles and memes 

created by others to his personal Facebook profile. Although 

he posted this content primarily to generate discussion 

among his friends and family, any member of the general 

public could view it. Hernandez’s Facebook profile did not 

explicitly state that he worked as a Phoenix police officer, 

but he posted other content, such as photos of himself in 

uniform, from which that fact could be determined.

Hernandez made the four posts at issue here between 

September 2013 and January 2014. Because the content of 

the posts is relevant to whether they receive First 

Amendment protection, we describe them briefly below and 

have included copies in the appendix to this opinion. 

The first post is a meme depicting a series of mugshotlike photos of men above a caption that reads, “The most 

common name for a convicted gang rapist in England is ... 

Muhammad.” Below that in smaller type is additional text 

stating, “Note to the British media – these gangs are not 

comprised of ‘Asians’; they are Muslims.”

The second post is a meme depicting a photo of what 

appears to be a British cab driver opening the door to his cab. 

The text accompanying the photo states, “You just got to 

love the Brits,” followed by two paragraphs of text 

describing a supposed encounter between a “devout 

Muslim” and a cab driver in London: 

A devout Muslim entered a black cab in 

London. He curtly asked the cabbie to turn 

off the radio because, as decreed by his 

religious teaching, he must not listen to music 

because, in the time of the prophet, there was 
8 HERNANDEZ V. CITY OF PHOENIX

no music, especially Western music which is 

the music of the infidel.

The cab driver politely switched off the radio, 

stopped the cab and opened the door. The 

Arab Muslim asked him, “What are you 

doing?” The cabbie answered, “In the time 

of the prophet, there were no taxis, so piss-off 

[sic] and wait for a camel!”

The third post is another meme titled, “Recent 

Contributions to Science by Islam.” It depicts photos of four 

men to whom quotes are attributed in different fields of 

science. Each of the quotes attempts to mock the supposed 

contributions to science made by Islamic scholars or 

scientists.

The last post is an article published by the Minority 

Report Blog under the headline, “Military Pensions Cut, 

Muslim Mortgages Paid By US!” Beneath the headline is a 

blurb that states, “The Obama Administration cut Military 

pensions but found 300 million to send to Muslim’s [sic] 

overseas to help pay for their mortgages.” The record does 

not contain the full text of the article, which could no longer 

be accessed by the time the Department conducted its 

investigation.

For more than five years, none of these posts came to the 

attention of the public or caused any turmoil within the 

Phoenix Police Department. That changed in June 2019 

when the Plain View Project, which maintains a database of 

Facebook posts from law enforcement officers across the 

country, published a collection of posts from various officers 

of the Phoenix Police Department. Many of the posts 

reflected bias against racial or religious minorities or 
HERNANDEZ V. CITY OF PHOENIX 9

contained content that would be offensive to members of 

such groups. The Plain View Project’s publication of these 

posts generated a firestorm of public criticism of the 

Department and considerable negative media attention.

The Plain View Project’s database included 11 posts 

from Hernandez. The Phoenix Police Department’s 

Professional Standards Bureau conducted an internal 

investigation to determine whether any of Hernandez’s posts 

violated the Department’s social media policy. Its 

investigation focused on the four posts described above. 

During an interview with investigators, Hernandez 

explained that he posted the items in question to drive 

discussion about issues that were in the news at the time, 

such as cultural assimilation and veterans’ benefits.

The Bureau concluded that, taken together, the four posts 

violated section 3.27.9.B.(6) of the Department’s social 

media policy. That provision states:

Department personnel are free to express 

themselves as private citizens on social 

media sites to the degree that their speech 

does not impair working relationships of this 

Department, are detrimental to the mission 

and functions of the Department, that 

undermine respect or public confidence in the 

Department, cause embarrassment to the 

Department or City, discredit the Department 

or City, or undermine the goals and mission 

of the Department or City.

The Bureau found that Hernandez’s Facebook posts 

“potentially reduced or contributed to the erosion of public 

trust, were inflammatory to certain groups, and/or created 

dissention in the community by promoting hate, violence, 
10 HERNANDEZ V. CITY OF PHOENIX

racism, bias, or beliefs inconsistent with the Phoenix Police 

Department’s Purpose Statement and Guiding Values.” The 

Bureau also found that Hernandez’s posts “do not align with 

the distinguishing features, essential functions and required 

knowledge as outlined in the City of Phoenix classification 

for a Police Sergeant.” Based on the Bureau’s findings, 

Hernandez faced discipline ranging from a suspension of 

40 hours without pay up to termination.

Before the Department’s Disciplinary Review Board or 

the Chief of Police decided what disciplinary sanction to 

impose, Hernandez and the Arizona Conference of Police 

and Sheriffs (known by the acronym AZCOPS) filed this 

lawsuit.1

 Hernandez and AZCOPS sought a preliminary 

injunction barring the defendants—the City of Phoenix, the 

Chief of Police, and the Commander of the Professional 

Standards Bureau—from disciplining Hernandez for his 

Facebook posts. Any such disciplinary action, they argued, 

would violate his First Amendment free speech rights. The 

district court denied the request for a preliminary injunction 

and neither plaintiff appealed.

Hernandez and AZCOPS, now joined by a third plaintiff, 

Phoenix Police Department Lieutenant Mark Schweikert, 

filed an amended complaint asserting three causes of action. 

The first cause of action alleges a claim under 42 U.S.C. 

§ 1983 on two distinct theories. Plaintiffs contend, first, that 

the Department violated the First Amendment by retaliating 

against Hernandez for exercising his right to freedom of 

speech, and second, that certain provisions of the 

1 According to the complaint, Hernandez and a majority of the 

Phoenix Police Department sergeants and lieutenants are members of 

AZCOPS, and AZCOPS has provided legal representation to Hernandez 

throughout these proceedings.
HERNANDEZ V. CITY OF PHOENIX 11

Department’s social media policy are facially invalid under 

the First Amendment because they are vague and overbroad. 

Plaintiffs’ second cause of action reasserts Hernandez’s 

retaliation claim under the Arizona Constitution’s First 

Amendment analogue. The third cause of action appears to 

allege a claim for municipal liability under a failure-to-train 

theory. Plaintiffs seek damages incurred during the 

Department’s investigation of Hernandez’s posts, such as 

attorney’s fees; an injunction barring the Department from 

imposing any form of discipline against Hernandez for his 

posts; and an order enjoining further enforcement of the 

provisions of the social media policy that plaintiffs contend 

are facially invalid.

Defendants moved to dismiss the action under Federal 

Rule of Civil Procedure 12(b)(6) for failure to state a claim. 

The district court granted the motion as to Hernandez’s First 

Amendment retaliation claim, plaintiffs’ facial overbreadth 

challenge, and the related state law claim. The court 

concluded that Hernandez’s retaliation claim failed because 

none of his posts addressed a matter of public concern, 

which meant they were not entitled to constitutional 

protection. The court rejected plaintiffs’ facial overbreadth 

challenge on the ground that the Department’s social media 

policy prohibited only those categories of speech that could 

reasonably be expected to disrupt the Department’s mission 

and operations—ends that the Supreme Court has held are 

constitutionally permissible. The court did not dismiss 

plaintiffs’ facial vagueness challenge given defendants’ 

failure to adequately brief the issue. Because that portion of 

plaintiffs’ claims survived, the court also declined to dismiss 

the municipal liability claim.

Discovery proceeded as to the facial vagueness 

challenge alone, but the court ultimately granted defendants’ 
12 HERNANDEZ V. CITY OF PHOENIX

motion for summary judgment as to that claim. The court 

concluded that the challenged provisions are sufficiently 

clear to inform officers of “what the Policy proscribes in the 

vast majority of its intended applications.” Having 

determined that plaintiffs could not establish an underlying 

constitutional violation, the court entered summary 

judgment for defendants on plaintiffs’ remaining claim 

alleging municipal liability. Following entry of final 

judgment, plaintiffs timely appealed.

II

We begin by addressing the district court’s dismissal of 

Hernandez’s First Amendment retaliation claim, which is 

predicated on the theory that the Department violated his 

right to freedom of speech by seeking to discipline him for 

his Facebook posts. Our court has developed a series of five 

sequential steps to analyze First Amendment retaliation 

claims brought by government employees, drawn from the 

tests established in Pickering and Mt. Healthy City Board of 

Education v. Doyle, 429 U.S. 274 (1977): “(1) whether the 

plaintiff spoke on a matter of public concern; (2) whether the 

plaintiff spoke as a private citizen or public employee; 

(3) whether the plaintiff’s protected speech was a substantial 

or motivating factor in the adverse employment action; 

(4) whether the state had an adequate justification for 

treating the employee differently from other members of the 

general public; and (5) whether the state would have taken 

the adverse employment action even absent the protected 

speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 

2009). Only the steps drawn from Pickering—the first, 

second, and fourth—are at issue here.

Under what has become known as the Pickering

balancing test, a government employee bears the initial 

burden of showing that he spoke on a matter of public 
HERNANDEZ V. CITY OF PHOENIX 13

concern and that he did so in his capacity as a private citizen, 

rather than as an employee. Connick v. Myers, 461 U.S. 138, 

147 (1983); Eng, 552 F.3d at 1070–71. If the employee 

succeeds in making that threshold showing, his speech is 

entitled to constitutional protection and “the possibility of a 

First Amendment claim arises.” Garcetti v. Ceballos, 

547 U.S. 410, 418 (2006). The burden then shifts to the 

government employer to show that it had an adequate 

justification for punishing the employee for his speech. To 

sustain its burden, the employer must show that “its own 

legitimate interests in performing its mission” outweigh the 

employee’s right to speak freely. City of San Diego v. Roe, 

543 U.S. 77, 82 (2004) (per curiam). The objective of this 

framework is to strike “a balance between the interests of the 

[employee], as a citizen, in commenting upon matters of 

public concern and the interest of the State, as an employer, 

in promoting the efficiency of the public services it performs 

through its employees.” Pickering, 391 U.S. at 568.

As with any balancing test requiring the weighing of 

competing interests, no hard-and-fast rules dictate where the 

balance is to be struck in a particular case. But a few general 

principles guide us. On one side of the balance, the Supreme 

Court has held that government employers have a strong 

interest in prohibiting speech by their employees that impairs 

close working relationships among co-workers, impedes 

performance of the speaker’s job duties, interferes with the 

effective functioning of the employer’s operations, or 

undermines the employer’s mission. Rankin v. McPherson, 

483 U.S. 378, 388, 390 (1987); Connick, 461 U.S. at 151–

52; Pickering, 391 U.S. at 570, 572–73. Government 

agencies are, after all, in the business of providing public 

services, so when an employee “begins to do or say things 

that detract from the agency’s effective operation, the 

government employer must have some power to restrain 
14 HERNANDEZ V. CITY OF PHOENIX

her.” Waters v. Churchill, 511 U.S. 661, 675 (1994) 

(plurality opinion).

On the other side of the balance, government employees 

have an interest in speaking out “to bring to light actual or 

potential wrongdoing or breach of public trust” within their 

agencies, Connick, 461 U.S. at 148, since they are often 

uniquely situated to inform the public about “government 

corruption and abuse.” Dahlia v. Rodriguez, 735 F.3d 1060, 

1066–67 (9th Cir. 2013) (en banc). The First Amendment 

interests at stake in this context have as much to do with the 

public’s right to hear what an employee has to say about 

government operations as with the employee’s right to speak 

freely. Roe, 543 U.S. at 82. The Supreme Court has held 

that the relative value of the employee’s speech in advancing 

First Amendment interests factors into the balancing 

calculus, such that “the State’s burden in justifying a 

particular discharge varies depending upon the nature of the 

employee’s expression.” Connick, 461 U.S. at 150. The 

more substantially an employee’s speech involves matters of 

public concern, the weightier the government employer’s 

interests must be in preventing disruption of the workplace 

or impairment of the employer’s mission. Id. at 152.

In this case, the district court ruled that Hernandez’s First 

Amendment retaliation claim did not survive the first step of 

the analysis, as his Facebook posts did not address matters 

of public concern. (No one contests that Hernandez spoke 

in his capacity as a private citizen rather than as an employee 

of the Phoenix Police Department when he made the posts 

in question.) Whether speech addresses a matter of public 

concern is an issue of law subject to de novo review. Id. 

at 148 n.7; Cochran v. City of Los Angeles, 222 F.3d 1195, 

1200 (9th Cir. 2000).
HERNANDEZ V. CITY OF PHOENIX 15

What constitutes speech on a “matter of public concern” 

remains somewhat hazy, despite the decades that have 

passed since the concept was first employed. Over the years, 

the Supreme Court has defined the concept in only the most 

general of terms. See, e.g., Connick, 461 U.S. at 146 (“any 

matter of political, social, or other concern to the 

community”). The concept is useful primarily to draw a 

contrast with speech that is not entitled to constitutional 

protection in this context—namely, speech on “matters only 

of personal interest,” such as speech addressing “a personal 

employment dispute” or “complaints over internal office 

affairs.” Id. at 147, 148 n.8, 149. Most speech falling 

outside that purely private realm will warrant at least some 

First Amendment protection and thus will qualify as speech 

on a matter of public concern for purposes of the Pickering

balancing test. Tucker v. California Department of 

Education, 97 F.3d 1204, 1210 (9th Cir. 1996).2

To determine whether an employee’s speech addressed a 

matter of public concern, we consider the content of the 

statements, the form (time, place, and manner) of the 

statements, and the context in which the statements were 

made. Connick, 461 U.S. at 147–48. Analyzing those 

elements here leads us to conclude that Hernandez’s 

Facebook posts qualify as speech on matters of public 

concern.

As for content, Hernandez’s posts assuredly did not 

address an internal workplace grievance or complaints about 

2 A notable exception has been speech involving pornographic 

material featuring police officers, which both the Supreme Court and our 

court have held does not involve speech on a matter of public concern 

despite the lack of connection to any sort of internal workplace dispute. 

See City of San Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam); Dible 

v. City of Chandler, 515 F.3d 918, 927 (9th Cir. 2008).
16 HERNANDEZ V. CITY OF PHOENIX

internal office affairs. They instead addressed matters of 

social or political concern that would be of interest to others 

outside the Phoenix Police Department. Even if only “a 

relatively small segment of the general public” might have 

been interested in the subject of Hernandez’s posts, that is 

sufficient. Roe v. City and County of San Francisco, 

109 F.3d 578, 585 (9th Cir. 1997).

Take the post with the article headlined “Military 

Pensions Cut, Muslim Mortgages Paid By US!” That article 

addressed, at least in part, the subject of government 

spending priorities, which has long been regarded as a matter 

of public concern. See Ulrich v. City and County of San 

Francisco, 308 F.3d 968, 978–79 (9th Cir. 2002). The post 

with the meme containing mugshot photos criticized the 

British media for the way it was identifying men convicted 

of rape in England. Subjects that receive media coverage 

“almost by definition involve[] matters ‘of public concern,’” 

Roe, 109 F.3d at 585, so it follows that speech criticizing the 

media’s coverage of a particular subject qualifies as a matter 

of public concern as well. The post with the meme about the 

British cab driver at least tangentially touched on matters of 

cultural assimilation and intolerance of religious differences 

in British society, which again are topics of social or political 

concern to some segments of the general public. And the 

last post with the meme about “Recent Contributions to 

Science by Islam” addressed subjects that, according to 

exhibits attached to Hernandez’s complaint, received media 

attention at the time and sparked heated public debate.

Both form and context also weigh in Hernandez’s favor. 

Hernandez posted each of the items at issue on his own time, 

outside the workplace, using his personal Facebook profile. 

The intended audience of his posts was not limited to 

Hernandez’s fellow employees, and the posts could be 
HERNANDEZ V. CITY OF PHOENIX 17

viewed by any member of the general public. We agree with 

the Fourth Circuit that “publicly posting on social media 

suggests an intent to ‘communicate to the public or to 

advance a political or social point of view beyond the 

employment context.’” Liverman v. City of Petersburg, 

844 F.3d 400, 410 (4th Cir. 2016) (quoting Borough of 

Duryea v. Guarnieri, 564 U.S. 379, 398 (2011)). The 

context in which Hernandez’s posts were made also supports 

the conclusion that the posts were not tied to any workplace 

dispute or grievance. The exhibits attached to Hernandez’s 

complaint suggest that issues relating to immigration and 

cultural assimilation were topics of media attention at the 

time, and Hernandez alleges that he posted the items in 

question to foster discussion on those topics.

It is true that each of Hernandez’s posts expressed 

hostility toward, and sought to denigrate or mock, a major 

religious faith and its adherents. The Supreme Court has 

made clear, however, that “[t]he inappropriate or 

controversial character of a statement is irrelevant to the 

question whether it deals with a matter of public concern.” 

Rankin, 483 U.S. at 387 (holding that speech expressing 

hope that a second attempt at assassinating the president 

would prove successful qualified as speech on a matter of 

public concern). Indeed, the Court has held that even overtly 

hateful speech denigrating gay men as a means of protesting 

the United States’ tolerance of “homosexuality in the 

military” qualified as speech on a matter of public concern. 

Snyder v. Phelps, 562 U.S. 443, 454–55 (2011). Speech that 

expresses hostility toward racial or religious minorities may 

be of particularly low First Amendment value at the next step 

of the Pickering balancing test (as we note below), but its 

distasteful character alone does not strip it of all First 

Amendment protection.
18 HERNANDEZ V. CITY OF PHOENIX

Having concluded that Hernandez’s Facebook posts 

constitute speech on matters of public concern at the first 

step of the Pickering balancing test, we would ordinarily 

proceed to the next step and assess whether the Phoenix 

Police Department has shown an adequate justification for 

punishing Hernandez’s otherwise protected speech. We 

cannot do so here, however, because the district court 

dismissed Hernandez’s First Amendment retaliation claim at 

the motion-to-dismiss stage. The factual record before us is 

therefore limited to the allegations in the amended complaint 

and documents incorporated by reference. See Stoyas v. 

Toshiba Corp., 896 F.3d 933, 938 (9th Cir. 2018). (In ruling 

on defendants’ motion to dismiss, the district court properly 

declined to consider evidence introduced during the 

preliminary injunction hearing. See Fed. R. Civ. Proc. 12(d); 

Courthouse News Service v. Planet, 750 F.3d 776, 780 (9th 

Cir. 2014).) Although it seems likely that Hernandez’s posts 

could impede the performance of his job duties and interfere 

with the Phoenix Police Department’s ability to effectively 

carry out its mission, no evidence of the actual or potential 

disruptive impact caused by Hernandez’s posts is properly 

before us at this stage of the proceedings. We therefore 

reverse the district court’s dismissal of Hernandez’s First 

Amendment retaliation claim and remand for further 

development of the factual record.3

In remanding the case, we do not mean to suggest that 

the Department will face a particularly onerous burden to 

3 Because we reverse the district court’s dismissal of Hernandez’s 

retaliation claim, we also reverse the district court’s dismissal of his 

related claim under the Arizona Constitution (Count 2). We do not 

disturb the district court’s dismissal of plaintiffs’ municipal liability 

claim (Count 3), as plaintiffs have not challenged dismissal of that claim 

on appeal, and the claim was not adequately pleaded in any event.
HERNANDEZ V. CITY OF PHOENIX 19

justify disciplining Hernandez for his posts, given the 

comparatively low value of his speech. Government 

employee speech that exposes wrongdoing or corruption 

within the employee’s own agency lies at “the apex of the 

First Amendment” in this context. Moser v. Las Vegas 

Metropolitan Police Department, 984 F.3d 900, 906 (9th 

Cir. 2021). Needless to say, Hernandez’s Facebook posts 

occupy a much lower rung on the First Amendment 

hierarchy, and indeed they touched on matters of public 

concern “in only a most limited sense.” Connick, 461 U.S. 

at 154. On the other side of the scale, a police department’s 

determination that an officer’s speech warrants discipline is 

afforded considerable deference, see Cochran, 222 F.3d 

at 1201, and police departments may permissibly consider 

the special status officers occupy in the community when 

deciding what limitations to place on officers’ off-duty 

speech. Rankin, 483 U.S. at 390 (“The burden of caution 

employees bear with respect to the words they speak will 

vary with the extent of authority and public accountability 

the employee’s role entails.”). Speech by a police officer 

that suggests bias against racial or religious minorities can 

hinder that officer’s ability to effectively perform his or her 

job duties and undermine the department’s ability to 

effectively carry out its mission. Locurto v. Giuliani, 

447 F.3d 159, 182–83 (2d Cir. 2006).

III

We turn next to plaintiffs’ facial challenge to certain 

provisions of the Department’s social media policy. 

Plaintiffs focus much of their attack on a provision 

prohibiting social media posts “that are detrimental to the 

mission and functions of the Department, that undermine 

respect or public confidence in the Department, could cause 

embarrassment to the Department or City, discredit the 
20 HERNANDEZ V. CITY OF PHOENIX

Department or City, or undermine the goals and mission of 

the Department or City.” Plaintiffs contend that this 

provision and provisions employing similar language should 

be facially invalidated because they are unconstitutionally 

overbroad and vague.

A

We largely agree with the district court’s rejection of 

plaintiffs’ facial overbreadth challenge. In analyzing such 

challenges in the public employment context, we apply a 

modified Pickering balancing analysis that closely tracks the 

test used for First Amendment retaliation claims. See United 

States v. Treasury Employees, 513 U.S. 454, 466–68 (1995) 

(NTEU). We first ask whether the challenged restriction 

applies to employees’ speech in their capacity as private 

citizens on matters of public concern. If it does, we then ask 

whether the government has an adequate justification for 

treating its employees differently from other members of the 

general public. Barone v. City of Springfield, 902 F.3d 1091, 

1102 (9th Cir. 2018).

Because the challenge in this context targets a 

prospective restriction on a broad category of expression, 

rather than punishment imposed after-the-fact for a specific 

instance of speech, the government bears a heavier burden 

to justify the scope of the restriction. Id. at 1105. The 

government must show that the combined First Amendment 

interests of the public and current and future employees are 

outweighed by the speech’s “‘necessary impact on the actual 

operation’ of the Government.” NTEU, 513 U.S. at 468 

(quoting Pickering, 391 U.S. at 571). The harms on which 

the government relies must be “real, not merely conjectural,” 

and the proposed restriction must “in fact alleviate these 

harms in a direct and material way.” Id. at 475 (quoting 

Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664 
HERNANDEZ V. CITY OF PHOENIX 21

(1994)). A restriction on speech is facially overbroad if, 

applying this standard, “a substantial number of its 

applications are unconstitutional, judged in relation to the 

[provision’s] plainly legitimate sweep.” United States v. 

Stevens, 559 U.S. 460, 473 (2010) (quoting Washington 

State Grange v. Washington State Republican Party, 

552 U.S. 442, 449 n.6 (2008)).

At the first step of the analysis, defendants do not dispute 

that the challenged provisions apply to employee speech on 

matters of public concern made in an employee’s capacity as 

a private citizen, outside the scope of official duties. That 

fact is plain from the text of the policy, which applies to all 

social media use by the Department’s employees, even when 

off-duty. The challenged provisions are found in a section 

of the policy that explicitly regulates “personal use” of social 

media, and because the policy contains no subject-matter 

carve outs, speech on matters of public concern will 

necessarily be covered.

We next ask whether the Department has advanced an 

adequate justification for the restrictions. Because the 

district court dismissed plaintiffs’ facial overbreadth 

challenge on the pleadings, we are again left without a 

developed factual record as to the harms on which the 

Department relies to justify imposition of its social media 

policy. But most of the restrictions challenged here directly 

promote the same interests that the Supreme Court has 

already held to be valid bases for imposing restrictions on 

public employee speech. As noted earlier, government 

employers have a strong interest in prohibiting speech by 

their employees that undermines the employer’s mission or 

hampers the effective functioning of the employer’s 

operations. Rankin, 483 U.S. at 388, 390; Connick, 461 U.S. 

at 151–52. That interest justifies the policy’s restrictions on 
22 HERNANDEZ V. CITY OF PHOENIX

social media posts that are “detrimental to the mission and 

functions of the Department” or which “undermine the goals 

and mission of the Department or City.” Police departments 

also have a strong interest in maintaining a relationship of 

trust and confidence with the communities they serve, see 

Roe, 543 U.S. at 81, which justifies the policy’s restriction 

on speech that would “undermine respect or public 

confidence in the Department.” Given how closely these 

clauses of the policy track interests that the Department may 

constitutionally pursue, we cannot say that a “substantial 

number” of the policy’s applications are unconstitutional, 

judged in relation to the policy’s “plainly legitimate sweep.” 

Stevens, 559 U.S. at 473.

We reach a different conclusion with respect to the 

clauses of the policy prohibiting speech that would “cause 

embarrassment to” or “discredit” the Department—most 

notably the provision that states: “Employees are prohibited 

from using social media in a manner that would cause 

embarrassment to or discredit the Department in any way.”

We do not think plaintiffs’ facial overbreadth challenge 

to these clauses may be rejected at the motion-to-dismiss 

stage. The Department does not have a legitimate interest in 

prohibiting speech merely because the Department might 

find that speech embarrassing or discrediting, just as it does 

not have a legitimate interest in prohibiting all negative or 

disparaging speech about the Department. See Barone, 

902 F.3d at 1105–06. The Department has a legitimate 

interest in prohibiting embarrassing or discrediting speech to 

the extent such speech could reasonably be expected to 

disrupt the workplace, hinder the Department’s mission, or 

undermine the public’s confidence in and respect for the 

Department. But the social media policy already prohibits 

speech generating those detrimental effects. And unlike 
HERNANDEZ V. CITY OF PHOENIX 23

those more targeted prohibitions, the “embarrass” and 

“discredit” clauses are entirely self-regarding and not 

constrained by any demonstrable impact on the Department 

or its ability to function. It is thus far from clear what 

additional work the “embarrass” and “discredit” clauses 

could be doing here, beyond broadening the scope of the 

policy to authorize discipline for social media activity that 

the Department may not have a sufficiently strong interest in 

prohibiting. That is particularly concerning from an 

overbreadth standpoint because virtually all speech that lies 

at the core of First Amendment protection in this area—for 

example, speech exposing police misconduct or 

corruption—could be expected to embarrass or discredit the 

Department in some way.

We do not foreclose the possibility that the Department 

may be able to produce evidence at the summary judgment 

stage justifying the clauses prohibiting speech that would 

embarrass or discredit the Department. But in the absence 

of a developed factual record, we cannot conclude that 

plaintiffs’ facial overbreadth challenge to those clauses fails 

as a matter of law.

Plaintiffs separately challenge section 3.27.9.B.(7) of the 

social media policy, which provides that “Department 

personnel may not divulge information gained while in the 

performance of their official duties.” We do not think 

plaintiffs’ facial overbreadth challenge to this provision can 

be rejected at the motion-to-dismiss stage either. Although 

the Department has a strong interest in prohibiting the 

disclosure of confidential information, such as information 

that could jeopardize ongoing investigations, the challenged 

provision sweeps much more broadly. See Moonin v. Tice, 

868 F.3d 853, 865, 867 (9th Cir. 2017). It prohibits the 

disclosure of any information gained while on the job. Yet 
24 HERNANDEZ V. CITY OF PHOENIX

public employees are uniquely positioned to expose 

wrongdoing or corruption within their agencies precisely 

because they acquire information while on the job to which 

the public otherwise lacks access. A policy that prohibits 

public employees from divulging any information acquired 

while on the job would silence speech that warrants the 

strongest First Amendment protection in this context. For 

that reason, the provision challenged here “must be tailored 

to protect information the government has a legitimate 

interest in keeping confidential.” Id. at 873. Because 

plaintiffs’ challenge was resolved on the pleadings, the 

Department has not yet had an opportunity to produce 

evidence attempting to establish that this provision is 

appropriately tailored.

In short, we hold that the district court properly rejected 

plaintiffs’ facial overbreadth challenge except as to the 

clauses prohibiting social media activity that (1) would cause 

embarrassment to or discredit the Department or (2) divulge 

any information gained while in the performance of official 

duties.

B

We affirm the district court’s rejection of plaintiffs’ 

facial vagueness challenge to the same provisions discussed 

above. To prevail on this challenge, plaintiffs must show 

either that the challenged provisions fail to afford employees 

“a reasonable opportunity to understand what conduct [they] 

prohibit[],” or that the provisions permit “arbitrary and 

discriminatory enforcement.” Hill v. Colorado, 530 U.S. 

703, 732 (2000). If it is clear what the challenged provisions 

proscribe “in the vast majority of [their] intended

applications,” they cannot be deemed unconstitutionally 

vague on their face. Id. at 733 (citation omitted).
HERNANDEZ V. CITY OF PHOENIX 25

Plaintiffs argue that the Department’s social media 

policy is unconstitutionally vague because the challenged 

provisions offer no discernible standard that allows officers 

to determine what types of social media posts would subject 

them to discipline. We disagree. As discussed earlier, most 

of the challenged provisions simply track the language that 

the Supreme Court has used to describe the circumstances in 

which government employers have a strong interest in 

restricting employee speech. The provisions draw from 

Supreme Court precedent to prohibit speech that 

undermines, interferes with, or is detrimental to the 

Department’s goals and mission and its relationship with the 

public—concepts that it would be infeasible for the 

Department to describe with exhaustive specificity. See 

Arnett v. Kennedy, 416 U.S. 134, 161 (1974) (plurality 

opinion). Like many employment policies, the challenged 

provisions are framed in broad and general terms that 

nonetheless provide sufficient guidance to employees as to 

the types of social media posts that are prohibited. See 

Waters, 511 U.S. at 673 (plurality opinion) (noting that 

policies governing public employee speech may be framed 

in language that might be deemed impermissibly vague if 

applied to the public at large). Further, the Department 

already expects employees to be familiar with and promote 

its goals and mission. Plaintiffs have not demonstrated that 

officers tasked with adhering to the social media policy will, 

in most cases, be unable to determine whether their speech 

will have a deleterious impact on the Department’s 

operations.

In advancing their facial vagueness challenge, plaintiffs 

rely heavily on the deposition testimony of Lieutenant Eric 

Pagone, a former member of the Professional Standards 

Bureau who was charged with supervising investigations 

into alleged violations of the Department’s social media 
26 HERNANDEZ V. CITY OF PHOENIX

policy. Pagone was asked to opine on whether hypothetical 

social media posts addressing hot-button political issues, 

such as abortion, would run afoul of the policy. He could 

not give definitive opinions in response to the hypotheticals 

posed to him, explaining that in most instances he would 

need additional contextual information to make an informed 

judgment. Rather than demonstrating the facial invalidity of 

the Department’s policy, Pagone’s answers merely reflect 

the fact that deciding whether any given social media post 

violates the policy involves a heavily fact- and contextdependent exercise that often cannot be performed with only 

the bare content of a hypothetical post. In any event, as 

alluded to earlier, uncertainty about the correct resolution of 

edge cases “will not warrant facial invalidation if it is clear 

what the [policy] proscribes ‘in the vast majority of its 

intended applications.’” California Teachers Association v. 

State Board of Education, 271 F.3d 1141, 1151 (9th Cir. 

2001) (quoting Hill, 530 U.S. at 733). In our view, the 

Department’s social media policy meets that standard.

* * *

We affirm the district court’s dismissal of plaintiffs’ 

facial overbreadth challenge, with the two caveats noted 

above. We also affirm the district court’s entry of summary 

judgment for defendants on plaintiffs’ facial vagueness 

challenge and their municipal liability claim. We reverse the 

district court’s dismissal of Hernandez’s First Amendment 

retaliation claim and his related claim under the Arizona 

Constitution.

AFFIRMED in part, REVERSED in part, and 

REMANDED.

The parties shall bear their own costs on appeal.
HERNANDEZ V. CITY OF PHOENIX 27

Appendix
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30 HERNANDEZ V. CITY OF PHOENIX