FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD DIBLE; MEGAN DIBLE,
husband and wife,
Plaintiffs-Appellants,
v.
No. 05-16577
CITY OF CHANDLER, a municipality
in the State of Arizona; CHANDLER D.C. No.
CV-03-00249-JAT
POLICE DEPARTMENT, a law
enforcement agency of the City of OPINION
Chandler; BOBBY JOE HARRIS,
Chandler Police Chief and
husband; JUDY HARRIS, wife,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
June 11, 2007—San Francisco, California
Filed September 5, 2007
Before: Mary M. Schroeder, Chief Judge,
William C. Canby, Jr., and Ferdinand F. Fernandez,
Circuit Judges.
Opinion by Judge Fernandez;
Concurrence by Judge Canby
11501
11504 DIBLE v. CITY OF CHANDLER
COUNSEL
Keith M. Knowlton, Keith M. Knowlton, L.L.C., Mesa, Ari-
zona, for the plaintiffs-appellants.
Katherine E. Baker, Green & Baker, Scottsdale, Arizona, for
the defendants-appellees.
OPINION
FERNANDEZ, Circuit Judge:
Ronald and Megan Dible appeal from the district court’s
grant of summary judgment against them in their action
against the City of Chandler, Arizona, the Chandler Police
Department, and the Chandler Police Chief Bobby Joe Harris
(collectively the City). Principally, the Dibles assert that Ron-
ald Dible was a police officer whose rights under the First
Amendment to the United States Constitution were violated
when he was terminated for participating in (performing in,
recording and purveying) a sexually explicit website with his
wife. We affirm.
BACKGROUND
In January of 2002, the Chandler Police Department
learned that one of its officers, Ronald Dible, was running a
website featuring sexually explicit photographs and videos of
his wife. After initially placing Ronald Dible on administra-
tive leave and conducting an internal investigation into his
involvement with the website, the City terminated his
employment as a police officer.
DIBLE v. CITY OF CHANDLER 11505
Ronald Dible and his wife Megan Dible began running the
website in September of 2000, after Megan Dible signed a
contract with CDM Networks, which operated the website.
The Dibles then posted pictures of Megan Dible on the web-
site, under the pseudonym “Katelynn.” Those photographs
portrayed Megan Dible in various sexual poses and activities
with Ronald Dible, another woman, and inanimate objects.
The Dibles also posted, among other things, a videotape of
Megan Dible masturbating that had been filmed by Ronald
Dible. The Dibles did not intend to express any kind of mes-
sage or engage in social or political commentary through the
material they posted on their website. They participated in
those activities to make money; it was as simple as that.
The website operated as follows: Any computer user with
internet capability could access the website’s home page with-
out charge. The home page featured partially nude pictures of
Megan Dible in order to entice customers. If the user wanted
to view more pictures of Megan Dible, a fee was required, but
before the pictures could be reviewed, the user had to enter
into a purported contract with CDM Networks. Once the user
accepted the terms of the contract and paid the fee, he was
free to view the website’s sexually explicit photographs and
videos.
The Dibles also offered a CD-ROM for sale on the website.
Like the website itself, the CD-ROM featured photographs of
Megan Dible having sex with Ronald Dible, other women,
and inanimate objects. Although the photographs on the web-
site and the CD-ROM generally did not show Ronald Dible’s
face, one of the photographs did.
The Dibles also promoted their website by attending “bar-
meets.” The purpose of the bar-meets was to have fans of the
website meet Megan Dible, although Ronald Dible also
attended. The bar-meets, which took place at local bars, were
open to the public, and attendees were free to take photo-
graphs. They did, and sometimes posted those on their own
11506 DIBLE v. CITY OF CHANDLER
websites. Although some attendees knew Megan Dible only
as Katelynn, others knew her true identity. At those bar-
meets, both Megan Dible and Ronald Dible posed in sexually
suggestive ways with each other and with other people, some
of whom were partially nude. The Dibles’ photographs from
the bar-meets were compiled on a CD-ROM and were then
sold through their website.
Rightly believing that his participation in the website would
violate police department policies, Ronald Dible did not
inform any department officials about it.1 He did, however,
tell a few people about it, including a fellow police officer,
whom he urged to start his own website. The officer eventu-
ally did.
Sometime in the later part of 2001, rumors about the
Dibles’ website began circulating among members of the
department, and eventually the news of the website filtered up
to department officials. Upon learning about it, the police
chief on January 25, 2002, ordered Ronald Dible to cease all
activity with the website and placed him on administrative
leave. The chief then opened an investigation into Ronald
Dible’s involvement with the website. The investigators ques-
tioned Ronald Dible about it, and, in response, he provided
several misleading answers. After establishing that he was, in
fact, involved in the website, the investigators questioned him
about, among other things, whether he and Megan Dible had
earned money from the site, and asked to see the contract
between Megan Dible and CDM Networks.
By January 25, 2002, the press had also learned about the
website and began reporting on it in an unflattering manner.
The press reported that the website was run by the Dibles and
that he was employed as a city police officer. The record con-
tains no evidence identifying the person who alerted the press
1
In fact, he lied about his participation when police department people
asked.
DIBLE v. CITY OF CHANDLER 11507
to the website’s existence or to the Dibles’ involvement in it,
but, of course, a lot of people already knew. The result of that
publicity was disquieting to say the least. A police lieutenant
assigned to look into the situation spoke to a large number of
officers and others, found that it had severely impacted their
working situation, and declared that police officer morale “re-
ally hit bottom.”
In due course, Ronald Dible’s supervisor recommended his
dismissal. The supervisor found that Ronald Dible had vio-
lated the department’s regulation prohibiting its officers from
bringing discredit to the city service, and that Ronald Dible
had provided false answers to district investigators in the
course of their investigation. Chief Harris approved Ronald
Dible’s dismissal.
Ronald Dible then appealed that decision to the City’s
Merit Board, which conducted an evidentiary hearing. At the
hearing, several officers testified that they had been ques-
tioned and ridiculed about the website. A female officer, Amy
Hedges, testified that she was called a “porn whore” by an
individual she was attempting to arrest. She further testified
that she was subjected to derogatory remarks while respond-
ing to a bar fight. Specifically, when she arrived at the bar, a
patron began gyrating, told her to take off her clothes, and
harassed her about the website. Officer Hedges testified that
the patron’s comments added to the instability of an already
fluid field situation and confrontation. Another officer testi-
fied to the disrespect that he was shown after the website
became publicly known. An investigating officer, who had
interviewed many other officers, as well as other people, also
testified to the impact of the Dibles’ activity on the depart-
ment. In addition, potential police recruits questioned an offi-
cer about the website on each of the five separate recruitment
trips that she had conducted after the existence of the site
became widely known to members of the public. Assistant
Chief Joseph Gaylord testified that he believed the scandal
involving Ronald Dible’s participation in the sexually explicit
11508 DIBLE v. CITY OF CHANDLER
website would negatively impact the department’s efforts to
recruit female officers for years to come. Ultimately, on April
3, 2002, the Merits Board issued a recommendation affirming
the decision to discharge Ronald Dible.
Thereafter, the Dibles initiated the underlying action.2 The
district court granted summary judgment in the City’s favor
on each of the Dibles’ claims. In its order, the district court
found that, among other things, Ronald Dible’s involvement
in the website was not protected by the First Amendment.
Subsequently, the Dibles’ counsel, Keith Knowlton, filed a
motion for a new trial and filed a supplement thereto. The dis-
trict court denied the motions. This appeal ensued.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343, 1367. We have jurisdiction pursuant to 28
U.S.C. § 1291.
We review the district court’s grant of the summary judg-
ment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004).
DISCUSSION
The major issue before us is whether Ronald Dible’s First
Amendment right to freedom of speech3 was violated when he
was terminated for maintaining and participating in a sexually
explicit website with his wife, Megan Dible. In fact, for all
practical purposes, the other issues in this case hinge on the
decision of that issue. We will, therefore, consider it first and
consider the other issues raised by the Dibles thereafter.
2
Although the Dibles filed their action in state court, the case was later
removed to federal district court.
3
We recognize that the Dibles’ conduct was more expression (nudity
and sexual activity) than speech as such. That does not change the analy-
sis.
DIBLE v. CITY OF CHANDLER 11509
A. Freedom of Speech
The Dibles claim that because Ronald Dible’s activities
must be treated as protected employee speech, the City
improperly terminated him. See Coszalter v. City of Salem,
320 F.3d 968, 973 (9th Cir. 2003) (setting forth elements of
a prima facie case). We disagree.
The Supreme Court recently took up the issue of employee
speech in general and conduct of the sort engaged in by Ron-
ald Dible in particular. See City of San Diego v. Roe, 543 U.S.
77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (per curiam). In
that case, a police officer with the City of San Diego, Califor-
nia, made a video of “himself stripping off a police uniform
and masturbating.” Id. at 78, 125 S. Ct. at 522. He sold copies
on eBay, under a user name of Codestud3@aol.com. Id.
While it appears that the uniform was not the specific uniform
worn by San Diego police officers, it was “clearly identifiable
as a police uniform,” and Roe also sold custom videos and
official “uniforms of the San Diego Police Department,”
along with other items of police equipment. Id. “Roe’s eBay
user profile identified him as employed in the field of law
enforcement.” Id. at 78, 125 S. Ct. at 523. When the police
department found out, it investigated and ultimately termi-
nated him. Id. at 78-79, 125 S. Ct. at 523. He then brought an
action in which he claimed that his First Amendment right to
freedom of speech had been violated. Id. at 79, 125 S. Ct. at
523.
The Supreme Court surveyed First Amendment law as it
related to government employees, and set forth an analytical
framework for consideration of the issue. The Court first rec-
ognized that “[a] government employee does not relinquish all
First Amendment rights otherwise enjoyed by citizens just by
reason of his or her employment.” Id. at 80, 125 S. Ct. at 523.
That said, when a government employee’s speech is under
consideration, there are two paths of analysis, depending on
11510 DIBLE v. CITY OF CHANDLER
whether the speech is related or unrelated to the person’s
employment. As the Court put it:
[A] governmental employer may impose certain
restraints on the speech of its employees, restraints
that would be unconstitutional if applied to the gen-
eral public. The Court has recognized the right of
employees to speak on matters of public concern,
typically matters concerning government policies
that are of interest to the public at large, a subject on
which public employees are uniquely qualified to
comment. See [Connick v. Myers, 461 U.S. 138, 103
S. Ct. 1684, 75 L. Ed. 2d 708 (1983)]; Pickering v.
Bd. of Ed. of Township High School Dist. 205, Will
County, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d
811 (1968). Outside of this category, the Court has
held that when government employees speak or
write on their own time on topics unrelated to their
employment, the speech can have First Amendment
protection, absent some governmental justification
“far stronger than mere speculation” in regulating it.
United States v. Treasury Employees, 513 U.S. 454,
465, 475, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995)
(NTEU). We have little difficulty in concluding that
the City was not barred from terminating Roe under
either line of cases.
Id. at 80, 125 S. Ct. at 523-24.
The Court then went on to consider whether Roe’s speech
activities were related or unrelated to his position as a police
officer with the city. It determined that Roe’s indecent activ-
ity, indeed, related to his employment. Id. at 80-82, 125 S. Ct.
at 524. In so doing, the Court observed that in NTEU the
speech in question was not only unrelated but also “had no
effect on the mission and purpose of the employer.” Id. at 80,
125 S. Ct. at 524. The Court also emphasized that in NTEU
“none of the speech at issue ‘even arguably [had] any adverse
DIBLE v. CITY OF CHANDLER 11511
impact’ on the employer.” Id. at 81, 125 S. Ct. at 524. It
finally pointed out that the City of San Diego had conceded
that Roe’s activities were unrelated in the sense that they were
not concerned with the “workings or functioning” of the
police department, but, it concluded:
It is quite a different question whether the speech
was detrimental to the SDPD. On that score the
City’s consistent position has been that the speech is
contrary to its regulations and harmful to the proper
functioning of the police force. The present case falls
outside the protection afforded in NTEU. The author-
ities that instead control, and which are considered
below, are this Court’s decisions in Pickering, supra,
Connick, 461 U.S. 138, 103 S. Ct. 1684, and the
decisions which follow them.
Id. at 81-82, 125 S. Ct. at 524.
Of course, as the Court noted, Roe had gone out of his way
to identify himself with police work. See id. at 81, 125 S. Ct.
at 524. Perhaps that alone would have sufficed to make his
activity related to his employment. If that were the case, it
must be said that Ronald Dible did not do what Roe did. Ron-
ald Dible took some pains to keep the police out of the pic-
tures, but because of other clues and information, it became
publicly known that he was involved and that he was a police
officer. Certainly it can be seriously asked whether a police
officer can ever disassociate himself from his powerful public
position sufficiently to make his speech (and other activities)
entirely unrelated to that position in the eyes of the public and
his superiors. That said, the Court has never explicitly defined
what is or is not related and we need not do so here. As in
Roe, the result would be the same “under either line of cases.”
Id. at 80, 125 S. Ct. 524. The Dibles cannot prevail. We will
explain.
[1] (1) Related Speech. If we determined that Ronald
Dible’s activities were related to his public employment, we
11512 DIBLE v. CITY OF CHANDLER
would necessarily approach his First Amendment claim as did
the Supreme Court in Roe. It said:
To reconcile the employee’s right to engage in
speech and the government employer’s right to pro-
tect its own legitimate interests in performing its
mission, the Pickering Court adopted a balancing
test. It requires a court evaluating restraints on a pub-
lic employee’s speech to balance “the interests of the
[employee], as a citizen, in commenting upon mat-
ters 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. at 82, 125 S. Ct. at 524-25. As the Court explained, before
an employee is even entitled to have the balancing test
applied, the “speech must touch on a matter of ‘public con-
cern.’ ” Id. at 82-83, 125 S. Ct. at 525. The Court further
pointed out: “Connick held that a public employee’s speech is
entitled to Pickering balancing only when the employee
speaks ‘as a citizen upon matters of public concern’ rather
than ‘as an employee upon matters only of personal inter-
est.’ ” Id. at 83, 125 S. Ct. at 525. And, while the borders of
the territory of public concern are not entirely defined, they
do encompass matters that are “of legitimate news interest;
that is, a subject of general interest and of value and concern
to the public at the time of publication,” and even some pri-
vate comments in the proper circumstances. Id. at 83-84, 125
S. Ct. at 525-26. So, for example, the Court has said that an
employee’s quiet statement to a fellow employee at a county
constable’s office that she hoped that a future attempt at
assassination of the President would succeed, touched on a
matter of public concern. See Rankin v. McPherson, 483 U.S.
378, 379-82, 386, 107 S. Ct. 2891, 2894-96, 2898, 97 L. Ed.
2d 315 (1987).
No matter. Whatever a periplus of the outer limits of public
concern might show, it was pellucid that Roe’s vulgar behav-
DIBLE v. CITY OF CHANDLER 11513
ior would be discovered to be outside of those borders. As the
Court said, “there is no difficulty in concluding that Roe’s
expression does not qualify as a matter of public concern
under any view of the public concern test. He fails the thresh-
old test and Pickering balancing does not come into play.”
Roe, 543 U.S. at 84, 125 S. Ct. at 526.
[2] The same is true of Ronald Dible’s activities in this
case. They did not give the public any information about the
operations, mission or function of the police department, and
were not even close to the kind of private remarks that the
Court has countenanced. His activities were simply vulgar
and indecent. They did not contribute speech on a matter of
public concern. The Dibles could not prevail if Ronald
Dible’s speech is deemed to have been related to his employ-
ment.
(2) Unrelated Speech. If we determined that Ronald
Dible’s activities were unrelated to his public employment,
we would also have to apply a balancing test. Interestingly
enough, it is not entirely clear whether the public concern
concept would be a necessary threshold to that balancing. In
Roe, id. at 80-82, 125 S. Ct. at 524, the Supreme Court did not
exactly say that the public concern concept must be consid-
ered, but it also did not expressly hold that the Court of
Appeals’ determination that public concern was part of the
test was incorrect.4 And in NTEU, 513 U.S. at 466, 115 S. Ct.
at 1013, the Court pointed out that:
Respondents’ expressive activities in this case fall
within the protected category of citizen comment on
matters of public concern rather than employee com-
ment on matters related to personal status in the
workplace. The speeches and articles for which they
received compensation in the past were addressed to
4
See Roe v. City of San Diego, 356 F.3d 1108, 1117-18 (9th Cir.), rev’d,
543 U.S. 77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004) (per curiam).
11514 DIBLE v. CITY OF CHANDLER
a public audience, were made outside the workplace,
and involved content largely unrelated to their gov-
ernment employment.
Moreover, in Rankin, 483 U.S. at 386, 107 S. Ct. at 2898, the
Court did indicate that a comment about the President was a
matter of public concern, but Rankin dealt with an unrelated
comment made at the workplace itself. We, however, need not
resolve whether the public concern test must be satisfied in
this instance. See Locurto v. Giuliani, 447 F.3d 159, 175 (2d
Cir. 2006).
If a statement must be one of public concern when it con-
sists of unrelated activity away from the workplace, Ronald
Dible’s conduct was no more protected than it would be if the
activity were related, and the Dibles’ claim would fail on that
account. But, suppose passing the public concern test is not
required when unrelated expressive activity takes place away
from the work setting. What then? Again, we must balance
the asserted First Amendment right against the government’s
justification. See Roe, 543 U.S. at 80, 125 S. Ct. at 524. The
Dibles’ First Amendment claim cannot survive that balance
either.
We first note that a number of Supreme Court justices have
expressed some dubiety about the strength of the protection
offered to activities that can be said to be of the same ilk as
those we deal with here, or, perhaps, of an even less indecent
ilk. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120
S. Ct. 1382, 1391, 146 L. Ed. 2d 265 (2000) (plurality opin-
ion) (stating that public nude dancing is “only within the outer
ambit of the First Amendment protection”); Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 565-66, 111 S. Ct. 2456, 2460,
115 L. Ed. 2d 504 (1991) (plurality opinion) (stating that pub-
lic nude dancing is protected but “only marginally”) How-
ever, this court has said that plurality decisions of the
Supreme Court do not make law and that “the degree of pro-
tection the first amendment affords speech does not vary with
DIBLE v. CITY OF CHANDLER 11515
the social value ascribed to that speech by the courts.” Kev,
Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir. 1986).
None of those cases is exactly like the one at hand. We are
not dealing with the rights of an ordinary citizen vis-à-vis the
government; we are dealing with the rights of a governmental
employee (a police officer at that) vis-à-vis his employer. In
this context, the reflections of the Justices about the weight of
the right to engage in public indecent activity commend them-
selves to our consideration. As Roe suggests, it is a bit diffi-
cult to give that activity the same weight as the right to
engage in political debate5 or to lecture on religion and black
history or to write articles about the environment.6 Especially
is that true where, as here, the employee admits that he was
not interested in conveying any message whatsoever and was
engaged in the indecent public activity solely for profit.
[3] In any event, the interest of the City in maintaining the
effective and efficient operation of the police department is
particularly strong. It would not seem to require an astute
moral philosopher or a brilliant social scientist to discern the
fact that Ronald Dible’s activities, when known to the public,
would be “detrimental to the mission and functions of the
employer.” Roe, 543 U.S. at 84, 125 S. Ct. at 526. And
although the government’s justification cannot be mere specu-
lation, it is entitled to rely on “reasonable predictions of dis-
ruption.” Waters v. Churchill, 511 U.S. 661, 673, 114 S. Ct.
1878, 1887, 128 L. Ed. 2d 686 (1994) (plurality opinion).
[4] Police departments, and those who work for them, are
engaged in a dangerous calling and have significant powers.
The public expects officers to behave with a high level of pro-
priety, and, unsurprisingly, is outraged when they do not do
so. The law and their own safety demands that they be given
a degree of respect, and the sleazy activities of Ronald and
5
City of Erie, 529 U.S. at 294, 120 S. Ct. at 1393-94.
6
NTEU, 513 U.S. at 461-62, 115 S. Ct. at 1010-11.
11516 DIBLE v. CITY OF CHANDLER
Megan Dible could not help but undermine that respect. Nor
is this mere speculation.
[5] Almost as soon as Ronald Dible’s indecent public activ-
ities became widely known, officers in the department began
suffering denigration from members of the public, and poten-
tial recruits questioned officers about the Dibles’ website.
Moreover, the department feared that the recruiting of female
officers would be affected because of what it seemed to say
about the climate at the department. That is not rank specula-
tion. In a similar case involving police officers’ public sexual
activities, the Eleventh Circuit Court of Appeals noted that
this kind of activity by officers, once known, could not help
but interfere with the functions and mission of the police
department because “it reflected on [deputies’] fitness as dep-
uties and undermined public confidence” in the department.
Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d
1342, 1356 (11th Cir. 2006). Just so.
We are not gallied by the Dibles’ claim that Ronald Dible
is being subjected to some kind of heckler’s veto. Worries
about a heckler’s veto have generally dealt with the restriction
of a citizen’s speech based upon the anticipated disorderly
reaction by members of an audience. See Rosenbaum v. City
and County of San Francisco, 484 F.3d 1142, 1158-59 (9th
Cir. 2007). Those worries do not directly relate to the wholly
separate area of employee activities that affect the public’s
view of a governmental agency in a negative fashion, and,
thereby, affect the agency’s mission. The Dibles’ argument
ignores the fact that the public can form a negative view of
a person due to his particular mode of expression — there is
nothing unconstitutional about that. It also ignores the unique
and sensitive position of a police department and its necessary
and constant interactions with the public. See Byrd v. Gain,
558 F.2d 553, 554 (9th Cir. 1977) (noting that police depart-
ments have special concerns regarding employees’ speech due
to the nature of their mission); see also Waters, 511 U.S. at
DIBLE v. CITY OF CHANDLER 11517
674-75, 114 S. Ct. at 1887-88 (noting government’s signifi-
cant interest in employee activity).
As the Second Circuit Court of Appeals has pointed out,
even where the unrelated expression is a matter of public con-
cern — there a comment on race relations — police officers
“are quintessentially public servants” and “part of their job is
to safeguard the public’s opinion of them.” Locurto, 447 F.3d
at 178. Thus, said the court, the actions of the police depart-
ment were not due to a heckler’s veto, but rather an example
of the government’s accounting for the public’s perception of
the officers’ actions when it considered the potential for dis-
ruption of the department’s functions. Id. at 179; see also
Rankin, 483 U.S. at 389, 107 S. Ct. at 2899 (taking particular
note of the fact that a clerical employee’s comments were not
made public and, therefore, did not discredit the constable’s
office).7
[6] In fine, whether Ronald Dible’s activities were related
to his employment or not, the City could discipline him for
those activities without violating his First Amendment rights.
Thus, the Dibles’ claim to the contrary must be rejected.
B. Right of Privacy and Freedom of Association
The Dibles also claim that their First Amendment rights to
privacy and freedom of association were violated by the City.
No doubt the First Amendment does encompass a right of pri-
vacy, whose contours include within it a right to make per-
sonal decisions and a right to keep personal matters private.
See Ferm v. United States Trustee (In Re Crawford), 194 F.3d
7
We have not overlooked Flanagan v. Munger, 890 F.2d 1557, 1566-67
(10th Cir. 1989) and Berger v. Battaglia, 779 F.2d 992, 1000-01 (4th Cir.
1985). However, to the extent that they minimize the potential for an
actual effect on the efficiency and efficacy of police department functions
arising from public perceptions of the inappropriate activities of police
officers, they are severely undermined by Roe, and we decline to follow
them.
11518 DIBLE v. CITY OF CHANDLER
954, 958 (9th Cir. 1999). It also encompasses a freedom of
association right, which includes the freedom of intimate
expression and the right to associate with others in activities
otherwise protected by the First Amendment. See Fleisher v.
City of Signal Hill, 829 F.2d 1491, 1499-1500 (9th Cir. 1987).
Neither the Dibles’ right of privacy nor their right to freedom
of association was violated here.
[7] Beyond any other considerations, there is no evidence
that the City released any information that connected the
Dibles to the website. Thus, it could not have violated their
right to privacy and intimate association by giving them
unwanted publicity.
[8] Speaking of unwanted publicity leads to the obvious
reflection that intimate as their activity may have been in one
sense, it certainly was not intimate in the sense of an activity
that they intended to hide. Megan Dible was the star of her
own show and happily displayed herself to those willing to
pay to view her, and even, as a teaser, to those who were not
yet paying. Ronald Dible, for his part, participated in the
activity, both as a performer, and as a videographer. He even
appeared in public places for the purpose of advertising the
Dibles’ activities and their products. While some believe that
when we assume the bench we enter a hibernaculum and
retreat from reality, we can see that on the facts of this case
the Dibles’ right of privacy claims are virtually oxymorons.8
[9] Moreover, to the extent that the Dibles assert that Ron-
ald Dible’s freedom of association was violated because of his
8
We recognize that Ronald Dible also asserts that inquiry into his finan-
cial interests in the website violated some asserted right of privacy. There
are some limits to a governmental entity’s investigation of its employees.
See Thorne v. City of El Segundo, 726 F.2d 459, 469-71 (9th Cir. 1983).
However, we have never gone so far as to suggest that those limits are
exceeded where, as here, the question is directly related to the employee’s
connection to an otherwise unprotected activity that affects the functions
and mission of the employer.
DIBLE v. CITY OF CHANDLER 11519
right to participate in speech activities, as we have already
explained, he did not have a right to participate in the activi-
ties at hand and avoid City discipline at the same time.
[10] In short, in a case of this nature, a governmental
employee cannot avoid the strictures of the balancing tests
that we have heretofore described by attempting to resurrect
fallen speech claims as privacy and associational claims.
Those First Amendment claims must also necessarily fall with
the Dibles’ speech claim.
C. Qualified Immunity
The Dibles also assert that the district court erred when it
decided that the City’s police chief, Bobby Joe Harris, was
entitled to qualified immunity. In considering that question
we must apply the approach delineated in Saucier v. Katz, 533
U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). That
involves a two-step process. We must first consider whether
a constitutional right was violated by the official. Id. at 201,
121 S. Ct. at 2156. If not, the inquiry ends and the official is
entitled to qualified immunity. Id. If a right was violated, we
must proceed to the second step and determine whether that
right was clearly established. Id.; see also Brosseau v. Hau-
gen, 543 U.S. 194, 198-99, 125 S. Ct. 596, 599, 160 L. Ed. 2d
583 (2004) (per curiam).
Our disposition of the Dibles’ First Amendment claims
demonstrates that Police Chief Harris did not violate the
Dibles’ constitutional rights, and that is enough to end the
inquiry. But even if we were to find a violation, we would
also be constrained to declare that because “whether a public
employee’s speech is constitutionally protected turns on a
context-intensive, case-by-case balancing analysis, the law
regarding such claims will rarely, if ever, be sufficiently
‘clearly established’ to preclude qualified immunity.” Moran
v. Washington, 147 F.3d 839, 847 (9th Cir. 1998); see also
11520 DIBLE v. CITY OF CHANDLER
Lytle v. Wondrash, 182 F.3d 1083, 1088 (9th Cir. 1999). This
would not be one of those rarities.
[11] Thus, Chief Harris was entitled to qualified immunity.
D. State Law Claims
[12] The Dibles also claim that the district court erred when
it granted summary judgment on their state law claims. It did
not.
They first assert that they should be able to pursue their
claim to right of privacy under Arizona law. See Med. Lab.
Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806,
812 (9th Cir. 2002). What we have already said about their
First Amendment privacy claim applies here also. Not only
does their claimed seclusion right overlook all that they did to
publicize and publish their activities, but also they have
wholly failed to demonstrate that the City advised the general
public about their connection to their little enterprise.
They also assert that they have been subjected to the inten-
tional infliction of emotional distress as that is described
under Arizona law. See Johnson v. McDonald, 197 Ariz. 155,
160, 3 P.2d 1075, 1080 (App. Div. 1999). In order to prevail,
they would have to show that terminating Ronald Dible
because of his indecent activities was “ ‘so outrageous in
character and so extreme in degree, as to go beyond all possi-
ble bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community.’ ” Mintz v. Bell
Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554, 905 P.2d 559,
563 (App. Div. 1995). Even if an error were made, just how
the mere fact of terminating Ronald Dible for his disreputable
activities could meet that standard is not apparent upon an
apercu or even upon a perscrutation of the facts of this case.
Surely, this is not one of those “extremely rare” instances
where the tort can be found to have been committed in the
employment context. Id.
DIBLE v. CITY OF CHANDLER 11521
Finally, the Dibles assert that the termination of Ronald
Dible constituted a wrongful termination within the meaning
of Arizona law. See Ariz. Rev. Stat. § 23-1501(3)(a)-(d);
Bodett v. CoxCom, Inc., 366 F.3d 736, 746 (9th Cir. 2004);
Galati v. Am. West Airlines, Inc., 205 Ariz. 290, 292, 293 n.4,
69 P.2d 1011, 1013, 1014 n.4 (App. Div. 2003). To the extent
that their claim is based upon the alleged violation of Ronald
Dible’s First Amendment rights it must, of course, fail. Like-
wise, the claim must also fail to the extent that it is intended
to be an appeal from the determination of the City’s Merit
Board on the basis that the Board abused its discretion when
it recommended affirming Ronald Dible’s termination. See
Hamilton v. City of Mesa, 185 Ariz. 420, 427-28, 916 P.2d
1136, 1143-44 (App. Div. 1995). The record clearly demon-
strates that the Board could properly determine that Ronald
Dible’s activities discredited the police department and
affected its functions.
CONCLUSION
Even though many believe that we live in anomic times, we
have not yet abandoned our social codes to the point that a
city can be sanctioned for violating a police officer’s First
Amendment rights when he causes disrespect of the police
department and its members by performing in and purveying
pictures of his and his wife’s sexually explicit activities over
the internet. The City could properly take notice of the fact
that officers and the department were vilipended. It could
react to the effects that Ronald Dible’s activities could be
expected to and did have upon the police department’s mis-
sion and functions. To paraphrase Justice Holmes:9 Ronald
Dible may have the constitutional right to run his sex oriented
business, but he has no constitutional right to be a policeman
for the City at the same time. Therefore, the Dibles’ claims
must fail.
9
See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E.
517, 517 (1892).
11522 DIBLE v. CITY OF CHANDLER
AFFIRMED.
CANBY, Circuit Judge, concurring in the judgment:
I
With all due respect, I am unable to join the majority opin-
ion because I disagree with its resolution of Dible’s First
Amendment speech claim. Under the facts of this case and the
existing precedent, the police department could not discharge
Dible for his website expression without violating the First
Amendment.
I have no quarrel with some of the majority’s analysis. I
agree that, if Dible’s expressive website activity were prop-
erly characterized as employment-related, then his First
Amendment claim would fail because his expression, while
protected, was not of public concern. The majority opinion
correctly reasons that this point is established by City of San
Diego v. Roe, 543 U.S. 77, 84 (2004) (per curiam).
Dible’s website activity was not employment-related, how-
ever. As the majority opinion points out, Dible was careful
not to identify himself or his website with the police depart-
ment or with police status at all. That fact differentiates his
case from Roe. Certainly nothing in the activity Dible por-
trayed suggested a connection with the police. I am unwilling
to conclude, for reasons I will set forth below, that such unre-
lated expression becomes related to Dible’s employment sim-
ply because people who disapprove of his expression find out
that he is a policeman and make their disapproval or disdain
known to the police department in ways that could affect its
work.
As the majority opinion points out, the Supreme Court has
not, in Roe or its antecedents, made perfectly clear whether a
DIBLE v. CITY OF CHANDLER 11523
governmental employee’s expression unrelated to the employ-
ment must be of public concern to be protected. In my view
it makes little sense to impose the public concern requirement
for the protection of unrelated speech. The requirement of
public concern comes from Pickering v. Bd. of Educ., 391
U.S. 563 (1968). Its usefulness is in making an exception to
the right of a public employer to control the expression of
employees in matters relating to their employment. One way
of limiting the rule to its context, which I would follow, is to
hold that there is no requirement that an employee’s speech
that is unrelated to his employment be of public concern in
order to merit First Amendment protection. The Tenth Circuit
adopted that rule in Flanagan v. Munger, 890 F.2d 1557,
1562-64 (1989). Another way of reaching the same result is
to hold, as we did in Roe, 356 F.3d 1108, 1119 (9th Cir.),
rev’d, 543 U.S. 77 (2004), that any speech by a government
employee that is not about his employer, that occurs outside
the workplace, and is directed to a segment of the general
public, qualifies ipso facto as a matter of public concern. As
the majority opinion here recognizes, the Supreme Court did
not say this approach was incorrect when it reversed Roe.
Similarly, in Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.
1985), the Fourth Circuit held, in a case of unrelated expres-
sion, that all such expression was of public concern unless it
constituted a private personnel grievance. Either way —
whether the public concern requirement is simply dispensed
with for expression unrelated to employment, as I prefer, or
whether the public concern requirement for unrelated speech
is broadened to include virtually the universe of unrelated
speech — the outcome is the same. Public concern should not
be a hurdle depriving employee speech of First Amendment
protection when that speech is unrelated to the employment.
Now, I recognize that pornography, although apparently
popular, is not a very respected subject of First Amendment
protection in many quarters. The majority opinion here
reflects that distaste, variously characterizing Dible’s expres-
sive activities as “vulgar,” “indecent,” “sleazy,” and “disrepu-
11524 DIBLE v. CITY OF CHANDLER
table.” But vigorous enforcement of the free speech guarantee
of the First Amendment often requires that we protect speech
that many, even a majority, find offensive. See, e.g., Cohen
v. California, 403 U.S. 15, 23-25 (1971). Pornography, and
sexual expression in general, is protected by the First Amend-
ment when it does not constitute obscenity (and there is no
showing that Dible’s expression meets that extreme standard).
See Sable Communications of Calif., Inc. v. FCC, 492 U.S.
115, 132 (1989). We should accept that fact and accord
Dible’s expression the constitutional protection to which it is
entitled. The majority opinion here falls short of the First
Amendment standard in two major respects.
Because Dible’s expressive activity was not employment-
related, the police department must demonstrate that the
alleged harm caused by his expression was “ ‘real, not merely
conjectural.’ ” United States v. Nat’l Treasury Empl. Union,
513 U.S. 454, 475 (1995) (quoting Turner Broadcasting Sys.,
Inc. v. FCC, 512 U.S. 622, 664 (1994)). The evidence of harm
in this case is so insubstantial that it can be characterized as
“conjectural.” An officer testified that he feared the effect on
recruitment of female officers, but no such effect was demon-
strated. At least three officers testified that they had been ver-
bally harassed in a manner attributable to the website, but
there was no testimony that this seriously interfered with the
performance of their duties. In sum, the findings of interfer-
ence with the mission of the police department are based on
the conjecture that Dible’s expressive activities might cause
some persons to think less well of the police department and
that this disfavor might in some ways lead to disruption of
police activities. The evidence simply does not meet the Trea-
sury Employees standard. It does not outweigh Dible’s inter-
est in expression, which is his “interest in engaging in free
speech, not the value of the speech itself.” Flanagan, 890
F.2d at 1565.1
1
I place no significance at all on Dible’s statement that he did not intend
to convey any message in his expressive activity. His website constituted
DIBLE v. CITY OF CHANDLER 11525
A second flaw in the majority’s analysis is that it enshrines
the “heckler’s veto” with respect to all conduct of a public
employee, or at least of a police department employee. Noth-
ing that Dible did or said in relation to his website activities
in itself caused any disruption to police department functions.
The alleged (and minimal) disruption was caused by other
persons’ disapproval of Dible’s activities once it became
known that he was an officer of the police department. The
rule to be drawn from the majority’s analysis, apparently, is
that police officers may be fired for engaging in expressive
activities, unrelated to their employment, when numbers of
the public disapprove of the expression vigorously and possi-
bly disruptively. That rule empowers the heckler to veto the
speech, and is inconsistent with the First Amendment. See
Terminiello v. Chicago, 337 U.S. 1, 4-5 (1949). In such a situ-
ation, it is the duty of the police department to prevent the dis-
ruption by those opposed to the speech, not to suppress or
punish the speech. See Cohen, 403 U.S. at 23.
The heckler’s veto applied to sexually expressive activities
has disturbing potential for expansive application. A measur-
able segment of the population, for example, is vigorously
antagonistic to homosexual activity and expression; it could
easily be encouraged to mobilize were a police officer discov-
ered to have engaged, off duty and unidentified by his activ-
ity, in a Gay Pride parade, or expressive cross-dressing, or
any number of other expressive activities that might fan the
embers of antagonism smoldering in a part of the population.
For this reason, it is far better to adopt a rule that protects off-
duty speech unrelated to employment when the speech itself
causes no internal problems, and the only disruption is in the
external relations between the police department and the pub-
expression, and he has raised a First Amendment defense to his termina-
tion because of his website activity. It is equally irrelevant to his First
Amendment protection that he sought to make money from his expression,
as many speakers or writers do. See, e.g., Smith v. California, 361 U.S.
147, 150 (1959).
11526 DIBLE v. CITY OF CHANDLER
lic unhappy with the police officer’s expression. The Tenth
Circuit adopted just such a rule. See Flanagan, 890 F.2d at
1566. The Fourth Circuit avoided adopting an inflexible rule,
but held that a police department could not prohibit off-duty,
unrelated speech by an officer under circumstances parallel to
those in Dible’s case: “[N]ot only was the perceived threat of
disruption only to external operations and relationships, it was
caused not by the speech itself but by threatened reaction to
it by offended segments of the public.” Berger, 779 F.2d at
1001. This public reaction in Berger was not inconsequential;
it threatened to disrupt the tenuous relationship between the
police department and the black community. Even so, “this
sort of threatened disruption by others reacting to public
employee speech simply may not be allowed to serve as justi-
fication for public employer disciplinary action directed at
that speech.” Id.
The majority opinion states that to the extent that Flanagan
and Berger “minimize the potential for an actual effect on the
efficiency and efficacy of police department functions arising
from public perceptions of the inappropriate activities of
police officers, they are severely undermined by Roe.” Supra,
p. 11517 n.7. The rationale of Flanagan and Berger, however,
was not that disruption was minimal, but that as part of the
heckler’s veto it could not support discipline of the employee.
It is true that Roe permitted discipline of an officer because
of public reaction to his expressive conduct, but that expres-
sive conduct was purposely employment-related. The head of
a governmental agency is entitled to control the speech of
members of the agency with regard to agency-related matters,
unless that speech is a matter of public concern. Pickering,
391 U.S. at 574. But that rule is an exception to the general
First Amendment protection of speech. See Treasury Employ-
ees, 513 U.S. at 465. To apply the same restriction to off-duty
expression by a public employee, unrelated to his employ-
ment, is to reject the established principle that public employ-
ees may not be required to surrender their constitutional right
of free speech as a condition of their employment. See, e.g.,
DIBLE v. CITY OF CHANDLER 11527
Keyishian v. Board of Regents, 385 U.S. 589, 605 (1967). Roe
did not extend to off-duty conduct unrelated to employment,
and accordingly it did not undermine Flanagan and Berger.
In my view, the rationale of Flanagan and Berger is not
only sound, but constitutionally required. We should apply
those principles and hold that Dible’s expressive website con-
duct was an unconstitutional ground for his discharge.2
II
I concur in the judgment, however, because the record
demonstrates that any rational trier of fact would find that
Dible would have been discharged for making false state-
ments to police department investigators, had he not been dis-
charged for his website activity. See Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). There
was ample and uncontradicted evidence that, early in the
investigation, Dible denied any connection with the website,
and later denied that he appeared in any of the videos. He also
denied telling anyone to lie about his involvement in the web-
site, when he had told a co-worker to lie. Although some of
these statements were later “corrected” or modified, the origi-
nal deception was clearly established.
The false statements constituted one of the two charges in
the investigative complaint, and that violation of personnel
rules was listed as a class 7 violation. The minimum and only
authorized sanction for a class 7 violation, as listed in the
2
In light the fact that a majority of the panel disagrees with my conclu-
sion that Dible could not be discharged because of his website activity, I
concur in the majority’s ruling that Chief Harris is entitled to qualified
immunity because the constitutional law that he allegedly violated was not
clearly established.
I also concur in the majority’s rejection of Dible’s claims of violation
of his right of privacy and freedom of association, as well as its rejection
of his state-law claims.
11528 DIBLE v. CITY OF CHANDLER
report, was dismissal for a first offense. The City Merit Board
referred to Dible’s false denial of involvement, and found that
Dible had been “less than truthful.” A majority of the Board
accordingly sustained the charge of dishonesty. The City
Manager subsequently accepted the Board’s recommendation
and terminated Dible, in a memorandum that devoted more
discussion to Dible’s false statements than to his website
activities.
There is little question, therefore, that Dible’s false state-
ments would have caused his discharge even in the absence
of his website activity, and that such a discharge would not
have been arbitrary or capricious.
Dible contends, however, that his false statements cannot
be a ground for discharge because the entire investigation was
instituted because of his First Amendment protected activity.
He relies on Gilbrook v. City of Westminster, 177 F.3d 839,
854 (9th Cir. 1999), which held that subordinates who retali-
ated against an employee for protected activity were not
shielded when they initiated termination proceedings that ulti-
mately resulted in a discharge of the employee by superiors
who acted without a retaliatory motive. Gilbrook is distin-
guishable on several grounds, but two are sufficient for pres-
ent purposes. First, Gilbrook did not involve false statements
or other misconduct by the employee during the administra-
tive process. Second, the disciplinary process in Gilbrook
“began with a retaliatory motive, but ended with a legitimate
one.” Id. The investigation by the police department in the
present case was not illegitimate in its inception. The depart-
ment was entitled to inquire into Dible’s off-duty activity to
see whether it was employment-related, which would bring it
within the unprotected scope of Roe. In addition, the depart-
ment had a policy requiring police officers to obtain prior
approval before engaging in any outside employment, because
certain jobs were deemed compromising. The department was
entitled to inquire whether this policy had been violated.
Nothing in the nature of the investigation entitled Dible to lie.
DIBLE v. CITY OF CHANDLER 11529
I am persuaded, therefore, that Dible would have been fired
for his unprotected false statements, and that his discharge
would not have been arbitrary, capricious, or contrary to law.
I therefore concur in the judgment affirming the dismissal of
Dible’s claims.