PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-2207

HERBERT E. LIVERMAN; VANCE R. RICHARDS,

Plaintiffs - Appellants, 

v.

CITY OF PETERSBURG; JOHN I. DIXON, III, both individually 

and in his capacity as the Chief of Police for the City of 

Petersburg Bureau of Police, 

Defendants - Appellees.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Senior 

District Judge. (3:14-cv-00139-JRS)

Argued: October 27, 2016 Decided: December 15, 2016

Before WILKINSON and TRAXLER, Circuit Judges, and Bruce H. 

HENDRICKS, United States District Judge for the District of 

South Carolina, sitting by designation.

Affirmed in part, reversed in part, and remanded by published 

opinion. Judge Wilkinson wrote the opinion, in which Judge 

Traxler and Judge Hendricks joined.

ARGUED: Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC, 

Richmond, Virginia, for Appellants. Leslie A. Winneberger, 

BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, 

for Appellees. ON BRIEF: William F. Etherington, BEALE, 

DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for 

Appellees.
2

WILKINSON, Circuit Judge:

Two police officers challenge disciplinary actions for 

violations of their Department’s social networking policy. The 

district court denied relief on most of their claims. While we 

are sensitive to the Department’s need for discipline throughout 

the chain of command, the policy here and the disciplinary 

actions taken pursuant to it would, if upheld, lead to an utter 

lack of transparency in law enforcement operations that the 

First Amendment cannot countenance. For the reasons that follow, 

we affirm in part, reverse in part and remand for further

proceedings.

I.

The pertinent facts in this case are not in dispute.

Plaintiffs Herbert Liverman and Vance Richards were veteran 

police officers in the City of Petersburg’s Police Department. 

Both served as field officers under Chief John Dixon, who led 

the Department. Dixon in turn served under the general direction 

of the City Manager. 

In April 2013, Chief Dixon issued a general order revising 

the Department’s social networking policy. That policy governs 

officers’ use of social media platforms. The preface to the 

revised policy prohibits in sweeping terms the dissemination of 

any information “that would tend to discredit or reflect 

unfavorably upon the [Department] or any other City of 
3

Petersburg Department or its employees.” J.A. 161. The central 

provision of the policy, which we will refer to as the Negative 

Comments Provision, states:

Negative comments on the internal operations of the 

Bureau, or specific conduct of supervisors or peers 

that impacts the public’s perception of the department 

is not protected by the First Amendment free speech 

clause, in accordance with established case law. 

J.A. 162. Another provision, which we label the Public Concern 

Provision, specifies:

Officers may comment on issues of general or public 

concern (as opposed to personal grievances) so long as 

the comments do not disrupt the workforce, interfere 

with important working relationships or efficient work 

flow, or undermine public confidence in the officer. 

The instances must be judged on a case-by-case basis.

Id. The policy nonetheless “strongly discourages employees from 

posting information regarding off-duty activities” and provides 

that violations will be forwarded to the Chief of Police for 

“appropriate disciplinary action.” J.A. 163. 

This case concerns the Department’s application of the 

social networking policy to the following conversation between 

Liverman and Richards. While off-duty on June 17, 2013, Liverman 

posted a message to his Facebook page:

Sitting here reading posts referencing rookie cops 

becoming instructors. Give me a freaking break, over 

15 years of data collected by the FBI in reference to 

assaults on officers and officer deaths shows that on 

average it takes at least 5 years for an officer to 

acquire the necessary skill set to know the job and 

perhaps even longer to acquire the knowledge to teach 

other officers. But in todays world of instant 
4

gratification and political correctness we have 

rookies in specialty units, working as field training 

officer’s and even as instructors. Becoming a master 

of your trade is essential, not only does your life 

depend on it but more importantly the lives of others. 

Leadership is first learning, knowing and then doing.

J.A. 398. More than thirty people “liked” or commented on this

post. Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%... Not to mention you are 

seeing more and more younger Officers being promoted 

in a Supervisor/ or roll. It’s disgusting and makes me 

sick to my stomach DAILY. LEO Supervisors should be 

promoted by experience... And what comes with 

experience are “experiences” that “they” can pass 

around to the Rookies and younger less experienced 

Officers. Perfect example, and you know who I’m 

talking about..... How can ANYONE look up, or give 

respect to a SGT in Patrol with ONLY 1 1/2yrs 

experience in the street? Or less as a matter of fact. 

It’s a Law Suit waiting to happen. And you know who 

will be responsible for that Law Suit? A Police Vet, 

who knew tried telling and warn the admin for 

promoting the young Rookie who was too inexperienced 

for that roll to begin with. Im with ya bro....smh*

J.A. 399. Later that day, Liverman responded to Richards with a 

comment of his own:

There used to be a time when you had to earn a 

promotion or a spot in a specialty unit...but now it 

seems as though anything goes and beyond officer 

safety and questions of liability, these positions 

have been “devalued”...and when something has no 

value, well it is worthless.

Id. Richards then replied:

Your right..... The next 4yrs can’t get here fast 

enough... From what I’ve been seeing I don’t think I 

can last though. You know the old “but true” saying 

 * “Smh” is an acronym for “shaking my head.”
5

is.... Your Agency is only as good as it’s 

Leader(s)... It’s hard to “lead by example” when there 

isn’t one....smh

J.A. 400. 

Among those who liked or commented on the Facebook 

postings, most were current or former Department officers. Two 

sergeants, Liverman’s and Richards’s supervisors, learned of the 

exchange and notified Chief Dixon of the issue. Dixon determined 

that the statements violated the Department’s social networking 

policy and instructed the sergeants to discipline the officers. 

In the disciplinary action forms, the Department stated that 

Liverman’s follow-up comment and both of Richards’s comments 

violated the Negative Comments Provision. They each received an 

oral reprimand and six months’ probation, but were advised that 

such discipline would not affect their eligibility for 

promotion. Both the City Manager and Human Resources Director 

signed the personnel action forms indicating their probationary 

status.

Several weeks later, however, Chief Dixon altered the

qualifications for promotion. The new protocol expressly 

excluded any officers on probation from participating in the 

promotion process. Accordingly, when Liverman and Richards 

applied for open sergeant positions, the Department notified 

them that they were ineligible to sit for the promotional exam.
6

On October 1, 2013, the two officers sent a letter 

informing the City that they intended to challenge the 

disciplinary actions. Shortly thereafter, Liverman and Richards 

were the subject of several complaints and investigations within 

the Department. Based on the findings, Chief Dixon decided to 

fire Liverman, but Liverman resigned before receiving notice of 

his termination. 

On March 5, 2014, Liverman and Richards filed a six-count 

complaint in federal district court under 42 U.S.C. § 1983, 

seeking damages and other relief against Chief Dixon and the 

City for various violations of the First Amendment. The two 

officers claimed that the social networking policy infringed 

their free speech rights in Counts One (Liverman) and Two 

(Richards). Liverman and Richards also challenged the adverse 

disciplinary actions taken pursuant to the policy in Counts 

Three and Four, respectively. Finally, they alleged in Counts 

Five and Six that the Department instituted subsequent

investigations against them in retaliation for proceeding with 

the instant suit.

The district court granted Liverman summary judgment on his 

claim that the social networking policy infringed his right to 

free speech, but nonetheless found that Chief Dixon was entitled 

to qualified immunity because the policy fell within a gray 

zone. On Liverman’s challenge to the disciplinary action, the 
7

court found that qualified immunity again shielded Dixon’s 

decision because the contours of protected speech in this area 

were not clearly established. The district court next denied 

relief on Richards’s challenges to the policy and the 

discipline, holding that Richards’s speech was purely personal 

and thus not protected by the First Amendment. For both of their 

retaliation claims, the court concluded that the subsequent 

internal investigations were not retaliatory. This appeal 

followed. 

II.

The legal framework governing public employee speech claims 

is well known. Public employees may not “be compelled to 

relinquish the First Amendment rights they would otherwise enjoy 

as citizens to comment on matters of public interest.” Pickering 

v. Bd. of Educ., 391 U.S. 563, 568 (1968). Underlying this 

principle is the recognition that “public employees are often 

the members of the community who are likely to have informed 

opinions as to the operations of their public employers.” City 

of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). 

Nonetheless, a citizen who accepts public employment “must 

accept certain limitations on his or her freedom.” Garcetti v. 

Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy 

considerable discretion to manage their operations, and the 

First Amendment “does not require a public office to be run as a 
8

roundtable for employee complaints over internal office 

affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983). 

Courts begin the First Amendment inquiry by assessing 

whether the speech at issue relates to a matter of public 

concern. See Pickering, 391 U.S. at 568. If speech is purely 

personal, it is not protected and the inquiry is at an end. If, 

however, the speech is of public concern, courts must balance 

“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.” Id.; see also Connick, 461 

U.S. at 142. 

Against this backdrop, we turn to the officers’ First 

Amendment challenges to the Department’s social networking 

policy and the subsequent disciplinary actions taken against 

them. 

A.

The district court granted summary judgment to Liverman on 

his challenge to the social networking policy, but denied 

Richards’s parallel claim on the grounds that his speech was not 

protected by the First Amendment. We hold that the Department’s 

social networking policy is unconstitutionally overbroad and, 

for the following reasons, award judgment to Richards on his 

claim as well. 
9

Although regulations on social media use may appear to 

present novel issues, we agree with the district court that such 

questions are amenable to the traditional analysis set forth in 

Connick and Pickering. Indeed, the particular attributes of 

social media fit comfortably within the existing balancing 

inquiry: A social media platform amplifies the distribution of 

the speaker’s message — which favors the employee’s free speech 

interests — but also increases the potential, in some cases 

exponentially, for departmental disruption, thereby favoring the 

employer’s interest in efficiency. What matters to the First 

Amendment analysis is not only the medium of the speech, but the 

scope and content of the restriction. 

Here we deal with a broad social networking policy setting 

forth the parameters of public employee speech. In United States 

v. Nat’l Treasury Employees Union (NTEU), 513 U.S. 454 

(1995), the Supreme Court addressed how courts should

apply Pickering when a generally applicable statute or 

regulation (as opposed to a post-hoc disciplinary action)

operates as a prior restraint on speech. NTEU involved a statute

that prohibited federal employees from accepting any 

compensation for giving speeches or writing articles, even when 

the topic was unrelated to the employee’s official duties. See

id. at 457. Emphasizing that the honoraria ban impeded a “broad 

category of expression” and “chills potential speech before it 
10

happens,” the Court held that “the Government’s burden is 

greater with respect to this statutory restriction on expression 

than with respect to [the] isolated disciplinary action[s]” in 

Pickering and its progeny. Id. at 467, 468. Accordingly, “[t]he 

Government must show that the interests of both potential 

audiences and a vast group of present and future employees in a 

broad range of present and future expression are outweighed by 

that expression’s ‘necessary impact on the actual operation’ of 

the Government.” Id. at 468 (quoting Pickering, 391 U.S. at 

571). Further, the government “must demonstrate that the recited 

harms are real, not merely conjectural, and that the regulation 

will in fact alleviate these harms in a direct and material 

way.” Id. at 475.

The threshold question in this case is whether the 

Department’s policy regulates officers’ rights to speak on 

matters of public concern. There can be no doubt that it does: 

the restraint is a virtual blanket prohibition on all speech 

critical of the government employer. The explicit terms of the 

Negative Comments Provision prevent plaintiffs and any other 

officer from making unfavorable comments on the operations and 

policies of the Department, arguably the “paradigmatic” matter 

of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. 

1995); see also Roe, 543 U.S. at 80. 
11

Weighing the competing interests on either side of the 

Pickering/NTEU balance, we begin by noting the astonishing 

breadth of the social networking policy’s language. The policy 

seeks to prohibit the dissemination of any information on social 

media “that would tend to discredit or reflect unfavorably upon 

the [Department].” J.A. 161. In particular, the Negative 

Comments Provision proscribes “[n]egative comments on the 

internal operations of the Bureau” — which could be just about 

anything — or on the “specific conduct of supervisors or peers” 

— which, again, could be just about anything. J.A. 162. 

The interests of “present and future employees” and their 

“potential audiences” in such speech is manifestly significant. 

See NTEU, 513 U.S. at 468. We do not, of course, discount the 

capacity of social media to amplify expressions of rancor and 

vitriol, with all its potential disruption of workplace 

relationships that Connick condemned. But social networking 

sites like Facebook have also emerged as a hub for sharing 

information and opinions with one’s larger community. And the 

speech prohibited by the policy might affect the public interest 

in any number of ways, including whether the Department is 

enforcing the law in an effective and diligent manner, or 

whether it is doing so in a way that is just and evenhanded to 

all concerned. The Department’s law enforcement policies could 

well become a matter of constructive public debate and dialogue 
12

between law enforcement officers and those whose safety they are 

sworn to protect. After all, “[g]overnment employees are often 

in the best position to know what ails the agencies for which 

they work.” Waters v. Churchill, 511 U.S. 661, 674 (1994) 

(plurality opinion). But this policy will cut short all of that. 

To repeat, it squashes speech on matters of public import at the

very outset. 

Because the Department’s social networking policy 

unmistakably imposes a significant burden on expressive 

activity, we next consider whether the Department has adequately 

established “real, not merely conjectural” harms to its 

operations. See NTEU, 513 U.S. at 475. Chief Dixon’s primary 

contention is that divisive social media use undermines the 

Department’s interests in maintaining camaraderie among patrol 

officers and building community trust. These are, to be sure, 

legitimate interests. “When close working relationships are 

essential to fulfilling public responsibilities, a wide degree 

of deference to the employer’s judgment is appropriate.” 

Connick, 461 U.S. at 151-52. And such deference applies with 

special force to police departments because they are 

“paramilitary — discipline is demanded, and freedom must be 

correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295, 

300 (4th Cir. 1992). 
13

Here, however, the Department fails to satisfy its burden 

of demonstrating actual disruption to its mission. Apart from 

generalized allegations of budding “divisiveness” and claims 

that some “patrol officers sought [shift] transfers,” J.A. 502, 

Chief Dixon presented no evidence of any material disruption 

arising from plaintiffs’ — or any other officer’s — comments on 

social media. We do not deny that officers’ social media use 

might present some potential for division within the ranks, 

particularly given the broad audience on Facebook. But the 

speculative ills targeted by the social networking policy are 

not sufficient to justify such sweeping restrictions on 

officers’ freedom to debate matters of public concern. See

Connick, 461 U.S. at 152; McVey v. Stacy, 157 F.3d 271, 279 (4th 

Cir. 1998) (Murnaghan, J., concurring in part and concurring in 

the judgment) (“A stronger showing of public interest in the 

speech requires a concomitantly stronger showing of governmentemployer interest to overcome it.”).

Defendants’ fallback argument is that, even if the Negative 

Comments Provision itself is overbroad, the Public Concern 

Provision significantly narrows the reach of the social 

networking policy. This second provision, which permits comments 

on “issues of general or public concern . . . so long as the 

comments do not disrupt the workforce,” J.A. 162, is ostensibly 

more aligned with the case-by-case analysis of Connick and 
14

Pickering. But the milder language in a single provision does 

not salvage the unacceptable overbreadth of the social 

networking policy taken as a whole. Indeed, the Public Concern 

Provision does not purport to nullify or otherwise supersede the 

blanket censorship endorsed by the Negative Comments Provision. 

If the Department wishes to pursue a narrower social media 

policy, then it can craft a regulation that does not have the 

chilling effects on speech that the Supreme Court deplored. We 

cannot, however, allow the current policy to survive as a 

management and disciplinary mechanism.

B. 

Plaintiffs next assert that the district court erred in 

dismissing their challenges to the Department’s disciplinary 

actions. We agree. In fact, the facial overbreadth of the social 

networking policy is borne out by the disciplinary actions taken 

pursuant to it.

When evaluating an ex post disciplinary action, rather than 

an ex ante restraint on speech, the nature of our review is 

narrower than the analysis under NTEU. In this context, our 

court has adopted the traditional Connick/Pickering three-part 

test to determine whether a public employee has sustained a 

First Amendment challenge to an adverse employment action. 

First, we determine whether the employee spoke as a citizen on a 

matter of public concern. Second, we evaluate whether the 
15

employee’s interest in First Amendment expression outweighs the 

employer’s interest in the efficient operation of the workplace. 

And finally, we decide whether the protected speech was a 

substantial factor in the employer’s decision to take adverse 

employment action. McVey, 157 F.3d at 277-78. 

The first inquiry, once again, is whether Liverman and 

Richards spoke on matters of public concern. “Speech involves a 

matter of public concern when it involves an issue of social, 

political, or other interest to a community.” Kirby v. City 

of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004). In 

resolving this question, the Supreme Court has directed courts 

to examine the “content, form, and context of a given 

statement.” Connick, 461 U.S. at 147-48. Although defendants are

certainly correct that “personal complaints and grievances about 

conditions of employment” are not matters of public concern, 

Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they 

misconstrue the thrust of Liverman’s and Richards’s comments.

The form and context of the comments indicate that 

plaintiffs did in fact speak on an issue of public concern. 

Regarding the form of speech, we find it significant that the 

officers chose Facebook as the forum for their communication. As 

our colleague Judge Traxler has recognized, Facebook is a 

dynamic medium through which users can interact and share news 

stories or opinions with members of their community. See Bland 
16

v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). Similar to 

writing a letter to a local newspaper, see Pickering, 391 U.S. 

at 569-70, 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,” Borough of 

Duryea v. Guarnieri, 131 S. Ct. 2488, 2501 (2011). Further, the 

officers’ Facebook comments were prompted by other “posts 

referencing rookie cops becoming instructors.” J.A. 398. 

Accordingly, the context of the speech buttresses our conclusion 

that Liverman and Richards were not simply airing personal 

grievances but rather were joining an ongoing public debate 

about the propriety of elevating inexperienced police officers 

to supervisory roles. 

The content of the Facebook comments further confirms that 

they dealt with issues of public import. Defendants seek to 

carve up the Facebook colloquy and assert that Liverman’s and 

Richards’s comments should be considered separately. Yet this 

court has previously rejected attempts to “divide[] [speech] 

into discrete components to conduct a constitutional analysis on 

each.” Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157 

(4th Cir. 1992). Because we do not have “license to ignore the 

portions” of the communication that touch on a matter of public 

concern, we must view the statements “as a single expression of 

speech to be considered in its entirety.” Campbell, 483 F.3d at 
17

267. This approach is consistent with the typical experience on 

social media, where users engage in interactive discussions 

through a series of posts and comments. Liverman’s initial post 

invited others to pick up on his observations; Richards 

responded, and they began a public dialogue about the 

Department’s promotion policies. Their comments, therefore, 

should be read in conjunction as part of a single conversation 

on the qualifications of instructors and the increasing number 

of rookies thrust into teaching roles. 

Taken together, plaintiffs’ statements stand in stark 

contrast to the sort of “individualized concerns” this court has 

characterized as personal grievances. See Brooks v. Arthur, 685 

F.3d 367, 374 (4th Cir. 2012). Each veteran officer grounded his 

statements in specialized knowledge and expressed a general 

“concern about the inability of the [Department] to carry out 

its vital public mission effectively.” Cromer v. Brown, 88 F.3d 

1315, 1325-26 (4th Cir. 1996). Liverman’s initial post cited an 

FBI study that underscored the danger of promoting green 

officers, and his subsequent comment noted the implications for 

“officer safety and questions of liability.” J.A. 398-99. 

Notwithstanding his more colloquial tone, Richards touched on 

the same issues of public import in his responses. First, he 

agreed with Liverman’s observations and echoed the concerns 

about “more and more younger Officers being promoted.” J.A. 399. 
18

Then he turned to the issue of skill development raised by the 

FBI study and concluded that “LEO Supervisors should be promoted 

by experience” and the “Agency is only as good as it’s 

Leader(s).” J.A. 399-400. 

Whether plaintiffs were correct or not in their views is 

not the issue. The matter they addressed was of more than 

personal import. We thus have no trouble finding that 

plaintiffs’ Facebook comments, which addressed risks posed by 

the Department’s inexperienced supervisors, raised issues of 

public concern. See, e.g., Brooks, 685 F.3d at 375 (explaining 

that when an employer’s practice “crosses a line to the point 

that imperils the public welfare . . . then the public would 

rightly be concerned about the matter”); Goldstein v. Chestnut 

Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000) 

(holding that firefighter’s complaints about inadequate training 

and unsafe procedures during emergency calls were matters of 

public concern). 

The second and third prongs of the Connick/Pickering

inquiry are not in genuine dispute. Serious concerns regarding 

officer training and supervision are weighty matters that must 

be offset by an equally substantial workplace disruption. Chief 

Dixon failed to establish a reasonable apprehension that 

plaintiffs’ social media comments would meaningfully impair the 

efficiency of the workplace. See Maciariello, 973 F.2d at 300. 
19

Finally, defendants do not seriously dispute that plaintiffs’ 

Facebook comments were a substantial factor in the decision to 

discipline them — indeed, both disciplinary action forms cited 

violations of the Negative Comments Provision as the sole basis 

for the oral reprimand and probation. J.A. 427-28. 

In light of the First Amendment protection accorded to the 

officers’ posts, we conclude that the discipline they received 

pursuant to the social networking policy was unconstitutional. 

C.

In the alternative, Dixon contends that the Department’s 

decisions to adopt the social networking policy and take 

disciplinary action pursuant to the Negative Comments Provision 

are entitled to qualified immunity. The doctrine of qualified 

immunity shields government officials “who commit constitutional 

violations but who, in light of clearly established law, could 

reasonably believe that their actions were lawful.” Henry v. 

Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). 

Having found that Dixon violated the officers’ First 

Amendment rights, we must consider whether such rights were 

“clearly established” at the time of the events at issue. “We do 

not require a case directly on point” in order to conclude that 

the law was clearly established, “but existing precedent must 

have placed the statutory or constitutional question beyond 

debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011).
20

Dixon first argues that he acted reasonably in adopting the 

social networking policy because the policy purported to track 

the subtle balancing calculus in Pickering. We agree that 

officials “are not liable for bad guesses in gray areas,” 

Maciariello, 973 F.2d at 298, and “do not expect [police chiefs] 

to be judges and to have the training to sort through every 

intricacy of case law.” Bland, 730 F.3d at 393. But this case 

does not involve gray areas: the right against such a sweeping 

prior restraint on speech was clearly established and then some. 

Indeed, it is axiomatic that the government may not ban speech 

on the ground that it expresses an objecting viewpoint. See

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Accordingly, 

there can be no doubt that prohibiting any “[n]egative comments 

on the internal operations of the Bureau, or specific conduct of 

supervisors or peers” — even comments of great public concern —

violates the First Amendment. J.A. 162. 

Dixon also asserts that the disciplinary actions taken 

pursuant to the policy were reasonable in light of the vague 

boundaries distinguishing public and private speech. Given the 

patent unconstitutionality of the social networking policy, 

however, efforts to enforce the policy are similarly suspect. 

After all, the core of the policy was a prohibition on 

legitimate speech and, as detailed above, we have little 

difficulty locating the officers’ speech within this protected 
21

sphere. Plaintiffs raised serious concerns regarding the 

Department’s training programs and the promotion of 

inexperienced supervisors, both of which are matters of public 

concern. As this court has held time and again, it was clearly 

established law that such speech is protected by the First 

Amendment. See, e.g., Brooks, 685 F.3d at 375; Goldstein, 218 

F.3d at 353. 

We appreciate the need for order and discipline in the 

ranks. See Maciariello, 973 F.2d at 300 (recognizing that 

“greater latitude is afforded to police department officials in 

dealing with dissension”). At the same time, we cannot 

countenance an arm of government with such enormous powers being 

removed to this extent from public scrutiny. This is not an allor-nothing matter; there is a balance to be struck. But the 

Department’s social networking policy, and the disciplinary 

actions taken to enforce it, lean too far to one side. We 

therefore hold that Chief Dixon is not entitled to qualified 

immunity.

III.

Finally, plaintiffs argue that Dixon retaliated against 

them for filing their First Amendment suit. We agree with the 

district court that their retaliation claims are without merit.

Plaintiffs argue that the retaliation took the form of 

investigating their conduct on the force. We cannot conclude, 
22

however, that plaintiffs have raised an issue of triable fact 

that the investigations were pretextual. See McVey, 157 F.3d at 

277-78. There were independent bases for each investigation. 

Liverman was investigated twice. In notifying the City of his 

First Amendment claims, Liverman requested a wide range of 

personnel records. While searching for responsive documents, the 

Department discovered that Liverman had sent sexually explicit 

emails to a female officer. The Department launched an 

investigation for sexual harassment, during which Liverman 

admitted to engaging in sexual misconduct on Department property

and while on duty. Additionally, Liverman was investigated for 

an incident in which he ignored Chief Dixon’s orders and failed 

to maintain his duty post as directed.

Richards was also investigated twice. Both inquiries were 

opened as a result of complaints initiated not by Chief Dixon 

but by his fellow officers. The first complaint related to a 

report Richards allegedly made to the media about another

officer’s spouse. The Department concluded the investigation 

within one week, after Richards demonstrated his innocence. The 

second complaint arose from his involvement with the 

Department’s Shop with a Cop program. Once again, the Department 

determined that the allegations were unfounded. 

Apart from generalized assertions regarding the existence 

of the investigations, plaintiffs fail to offer any evidence 
23

that the investigations were retaliatory. Far from groundless 

“fishing expeditions,” Appellants’ Br. at 34, each arose from 

discrete allegations of misconduct. Without more, we see no 

reason to question the legitimacy of the Department’s 

investigations. After all, simply filing a Pickering claim does 

not confer indefinite immunity on employees or insulate them 

from subsequent investigation and discipline for unrelated 

misconduct. Granting relief on plaintiffs’ retaliation claims 

would handcuff the Department by forcing inaction even where

there is police behavior that warrants close review. Speech is 

one thing; misconduct something else. There are countless 

unobjectionable reasons why a police department might want to 

investigate an officer’s performance, including absence from 

work, tardiness, insubordination, illegal activity, and basic 

failure to carry out one’s duties in a competent and impartial 

fashion. The garden-variety investigations into Liverman’s and 

Richards’s conduct were no different, and we therefore reject 

their claims of retaliation.

IV.

The City argues that Liverman and Richards have failed to 

establish municipal liability. The district court agreed. We 

remand on this question to give the district court a chance to 

assess under the appropriate standard municipal liability for 

establishing the policy under which plaintiffs were disciplined.
24

Under Section 1983, a local government may be held liable 

for injuries suffered due to the “execution of a government’s 

policy or custom, whether made by its lawmakers or by those 

whose edicts or acts may fairly be said to represent official 

policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 

(1978). Municipal liability “attaches only where the 

decisionmaker possesses final authority to establish municipal 

policy with respect to the action ordered.” Pembaur v. City of 

Cincinnati, 475 U.S. 469, 481 (1986). Whether an entity 

possesses the requisite authority is a question of state law. 

Id. at 483.

Here, the district court concluded that the City was not 

liable with respect to any of plaintiffs’ claims. The court’s 

holding rested on a city ordinance providing that the Chief of 

Police “serve[s] at the pleasure of the city manager” and is 

“under the direction and control of the city manager.” Liverman 

v. City of Petersburg, 106 F. Supp. 3d 744, 769 (E.D. Va. 2015). 

Because Dixon does not have the final say over Department 

matters, the court indicated, plaintiffs failed to show that 

Chief Dixon “possesses the final authority required to establish 

municipal liability.” Id.

This analysis misapprehends the nature of the requisite 

authority. We deal here not merely with an individual employment 

decision, see Crowley v. Prince George’s Cty., 890 F.2d 683, 687 
25

(4th Cir. 1989), but a broad policy setting forth all the ground 

rules for employee speech. An entity has “final” authority to 

set this sort of policy when no further action is needed for the 

policy to take effect. The Supreme Court has expressly noted 

that “[a]uthority to make municipal policy . . . may be 

delegated by an official who possesses such authority” to 

another official. Pembaur, 475 U.S. at 483. Here the fact that 

Dixon serves “under the direction and control of the city 

manager” does not necessarily establish that he lacked final 

authority to promulgate the policy whose validity has been 

successfully challenged herein. We must therefore remand to the 

district court to undertake a more particularized inquiry into 

whether Chief Dixon possessed final authority to set policies on 

the parameters of speech on the part of those law enforcement 

officers under his command. If so, the City may also be held 

liable for the injuries that were caused by the applications of 

that policy. 

V.

Running a police department is hard work. Its mission 

requires capable top-down leadership and a cohesion and esprit 

on the part of the officers under the chief’s command. And yet 

the difficulty of the task and the need for appropriate 

disciplinary measures to perform it still does not allow police 

departments to wall themselves off from public scrutiny and 
26

debate. That is what happened here. The sensitivity of all the 

well-known issues that surround every police department make 

such lack of transparency an unhealthy state of affairs. The 

advent of social media does not provide cover for the airing of 

purely personal grievances, but neither can it provide a pretext 

for shutting off meaningful discussion of larger public issues 

in this new public sphere.

To recapitulate: We hold that the Department’s social 

networking policy was unconstitutional and that the disciplinary 

measures taken against plaintiffs pursuant to that policy were 

likewise impermissible. The patent overbreadth of the policy 

negates Chief Dixon’s qualified immunity defense. We find no 

merit, however, in plaintiffs’ retaliation claims, which 

involved investigations for alleged police misconduct 

independent of any issues of free speech. As to municipal 

liability, we remand for further proceedings in accordance with 

the foregoing directions. Remedial issues are also best left for 

remand, although in light of all that has transpired, 

reinstatement is not an equitable option. The calculation of 

attorneys’ fees must of course await the conclusion of 

proceedings on remand.
27

The judgment of the district court is accordingly affirmed 

in part, reversed in part, and remanded for further proceedings 

consistent with this decision. 

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED