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Ninth Circuit:
Private Texts With Racist Images Are Unprotected Speech
Majority Says First Amendment Does Not Protect Police Chief From Termination Over Sending Bigoted Messages, Notwithstanding Her Allegedly Having Indicated Disapproval of the Content; Callahan Dissents
By Kimber Cooley, associate editor
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KATE ADAMS former police chief |
The Ninth U.S. Circuit Court of Appeals held yesterday that the First Amendment does not protect a police chief from being forced to resign over allegations that she sent private text messages containing racist images to two colleagues as the speech did not concern an issue of public interest.
Appealing the dismissal of her First Amendment claims was Kate Adams, who was promoted to chief of police for the City of Rancho Cordova in 2020. Adams, who is white, alleges that she sent the messages in 2013 to two then-colleagues with the Sacramento County Sheriff’s Department to announce her disapproval of the content.
The text to then-Sergeant Dan Morrissey was accompanied by the words “[s]ome rude racist just sent this!!!” The record is unclear whether the text to the other colleague—then-Captain LeAnnDra Marchese—contained a similar disapproving annotation.
One of the images depicted a white man spraying a young Black child with a hose and the other message included a photograph of a comedian. Each image contained a racial epithet.
After being appointed assistant chief of police for Rancho Cordova in 2019, Adams forwarded to the department’s Internal Affairs Division allegations of potential misconduct against Marchese. During the ensuing investigation, Marchese provided printouts of the 2013 text messages.
Adams alleges that the Police Department forced her to resign in September 2021 in order to avoid a “media circus.”
In 2022, The Sacramento Bee published an article accusing Adams of sending racially charged photographs to Sheriff’s Department colleagues.
Following the article, she resigned from her adjunct teaching position at William Jessup University and two prospective employers terminated their consideration of her candidacy.
Legal Action
In August 2022, Adams filed suit against the County of Sacramento, then-Sheriff Scott Jones (an unsuccessful Republican Party candidate for the U.S. House of Representatives in 2016 and 2022), and unidentified defendants, asserting First Amendment retaliation and conspiracy claims, among others.
District Court Judge William B. Shubb of the Eastern District of California dismissed the First Amendment claims, saying that the plaintiff failed to allege that the text messages constituted speech on a matter of public concern as required for First Amendment claims in the employment context.
Shubb said that “[t]o find that plaintiff’s speech constitutes a matter of public concern would be to find that any mention of a topic of public interest, however brief or indirect, constitutes a matter of public concern.”
The Ninth Circuit granted Adam’s petition for certification of the partial dismissal order for interlocutory appeal under 28 U.S.C. §1292(b) and Senior Circuit Judge Sidney R. Thomas wrote the opinion affirming the dismissal. Circuit Judge Gabriel P. Sanchez joined in the opinion.
Circuit Judge Consuelo M. Callahan dissented, saying:
“This is not your average First Amendment retaliation case. Kate Adams’s speech occurred outside of work, was totally unrelated to her job, and should not have had any impact on her employment, but did. The public concern test was not meant to deprive public servants of all First Amendment protection in such circumstances. Our circuit has broadly construed the public concern test for decades. This is a strange case in which to suddenly start applying it strictly. Because Ms. Adams should have the chance to hold the County accountable for its harsh reaction to her speech, I dissent.”
Public Concern
Thomas explained that the First Amendment prohibits government officials from engaging in retaliatory actions against governmental employees for engaging in protected speech on a matter of public concern. In determining whether an employee’s speech addresses a matter of public concern, courts consider the message’s content, form, and context.
Addressing the content, Thomas said:
“The distinction we have drawn between personal and public interest applies even against the backdrop of controversial issues like racism….Speech that addresses the topic of racism as relevant to the public can involve a matter of public concern….However, speech that complains of only private, out-of-work, offensive individual contact by unknown parties does not.
“There is no doubt that the images Adams received were offensive. However, Adams’s texts and distribution of the images speak only of her exasperation at being sent the images, which is an issue of personal—not public—concern.”
Other Factors
Turning to the form and context of the speech, Thomas noted that courts consider it important whether the employee was seeking to inform the public about an important topic or merely speaking privately. Looking to the message at issue, he noted that Adams did not allege that her receipt or sending of the images had anything to do with wrongful behavior on the part of the sheriff’s department or employees of the agency.
Under these circumstances, he remarked:
“In this case, the answer to the question of ‘why did the employee speak’ is evident from the record: Adams received private offensive texts and complained about receiving them privately to two friends. And here,…the form of the communications was private texts not intended to be accessed by the public. Neither the form nor context of the messages indicates that Adams intended to discuss ‘matter[s] of heightened public attention’ or policy.”
He concluded that “[t]aken together, each factor—content, form, and context—forecloses Adams’s claim that her speech” concerned a matter of public interest.
Thomas acknowledged that the decision may appear unjust but said that “Adams’s dismissal may or ‘may not be fair,’…but unfairness alone” does not create the opportunity to transform employment disputes into constitutional matters. He added:
“Adams has other causes of action that were not resolved by the district court. This interlocutory appeal only concerns her First Amendment retaliation and conspiracy claims. We, of course, express no view as to the other claims, which are not before us.”
Callahan’s View
Callahan said that “[m]y colleagues and I agree on the broad strokes of the public concern test” but took issue with the majority’s application of the doctrine. She explained that the test arose out of recognition that “[s]ubjecting government offices to litigation every time a disgruntled employee complains about the work environment would seriously undermine that office’s ability to carry out its mission and serve the public.”
However, she opined:
“In rejecting Ms. Adams’s claims, the majority relies heavily on the absence of indicia of whistleblowing—emphasizing that her texts were neither about wrongdoing by the Sheriff’s Department nor sharing information that would enable informed decisions about the Department’s operation.
“But in imposing a supposed whistleblowing requirement, the majority considers only cases that…have applied the public concern test to speech that occurred at work or about work.”
She continued:
“The fact that Ms. Adams may not have been advocating for or against anything in her series of texts should not change the content calculus, though the majority allows it to. The majority acknowledges that speech on ‘the topic of racism as relevant to the public’ can satisfy the public concern test. The majority rejects Ms. Adams’s speech here, though, because she was ‘complain[ing] of only private, out of-work, offensive individual contact.”….[T]he lack of connection between her speech and her work should make it easier, not harder, for Ms. Adams to pass the public concern threshold in this non-grievance based case.”
The jurist declared:
“Today’s decision demonstrates the real-life consequences of adopting an overly strict approach to free speech claims made by public employees. The majority withholds even the possibility of First Amendment protection for a dedicated public servant, who devoted 27 years of her life to protecting the people of Sacramento County. The First Amendment is supposed to protect the right to speak about political issues without fear of retribution by the government. Yet, the County forced Ms. Adams to resign for sharing her reaction to a meme reflecting disturbing “issues of the day,”…and the majority says she may not even get a foot in the courthouse door. The County punished Ms. Adams for speech she had a right to make. At the very least, it should have to demonstrate a justification for doing so.”
The case is Adams v. County of Sacramento, 23-15970.
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