dissenting.
I respectfully dissent.
Today the majority announces that any speech by a public employee is protected *1123as a matter of public concern from an adverse employment decision so long as it “does not fall within an unprotected category of speech,” “was not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance.” Ante, at 1121, 1122. The majority’s new connect-the-dots public concern test flatly ignores the nature and content of the expressive conduct at issue in this case, and so dilutes the “public concern” threshold for application of the Pickering balancing test as to read it out of existence. Although the majority purports to divine its sweeping new rule from United States v. National Treasury Employees Union (“NTEU”), 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), that case involved neither an adverse employment decision by the government as employer nor the public concern test. Because the majority’s astonishing new rule disregards the content of public employee speech and blurs the distinction between the government’s exercise of power as employer rather than sovereign, it directly contravenes the public employee speech doctrine developed in Pickering v. Board of Education, 391 U.S. 563, 571-72, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), as well as a host of Ninth Circuit cases defining the type of speech that rises to the level of “public concern.”
Applying its new version of the public concern test to the facts of this case, the majority holds that the San Diego Police Department (“SDPD”) is required to justify in federal court its decision to fire Roe for violating departmental regulations by offering for sale over the internet an SDPD uniform and offering and selling videotapes of himself stripping off a police uniform and masturbating. I simply cannot agree to a new rule of law that produces such an absurd result.
I
Because the district court dismissed this action at the pleading stage, we must accept as true the facts alleged in Roe’s complaint and construe them in the light most favorable to him. See Transmission Agency v. Sierra Pac. Power Co., 295 F.3d 918, 932 (9th Cir.2002). '' This does not mean, as the majority apparently believes, that we may overlook allegations in Roe’s complaint (ER 1-18) that are harmful to his case. Accurately set forth, the facts make clear that Roe’s expressive conduct was both related to his job and not on a matter of public concern.
Roe was formerly employed as an officer of the SDPD. ER 2. During his tenure, he produced, offered for sale, and sold through the adults-only section of the eBay internet auction site videotapes depicting himself stripping off a police uniform and masturbating. ER 4-6. He also offered for sale police uniforms formerly used by the SDPD and the National City Police Department. ER 3. Roe utilized the eBay username “Code3stud@aol.com” and described himself in his seller’s profile as being “in the field of Law Enforcement.” ER 3, 6. He included his picture in the listings of the items he offered for sale. ER 5.
Another SDPD officer discovered Roe’s internet marketing activities through an eBay search. ER 3. In linking to Roe’s adults-only listings, the officer had to “certify” that he did not And “pornographic images of nude adults, adults engaged in sexual acts or other sexual material to be offensive or objectionable.” ER 4. As part of the SDPD’s further investigation of Roe’s activities, a different SDPD officer purchased from Roe a pair of men’s briefs and one of his videos. ER 8. That officer *1124also emailed to Roe a request for a custom made video for a friend wherein Roe would pretend to be issuing the friend a citation and would “strip down while writing the ticket and make [the friend] a deal to take it back, which would end up with [Roe’s masturbation].” ER 9. Roe made the customized tape, and sold and shipped it to the undercover officer. Id. Roe was later interviewed as part of the investigation and admitted to all of the foregoing conduct. ER 9-10.
Following the investigation, the SDPD Professional Standards Unit determined that Roe had violated three department policies — Unbecoming Conduct, Immoral Conduct, and Outside Employment. ER 10. Roe’s captain ordered him to cease such activities. Id. Nevertheless, Roe maintained his eBay seller’s profile, which included a description and the prices of his first two videos, as well as the price for a custom-made video. ER 10-11. After discovering this, the SDPD, citing a fourth policy — Obedience to Lawful Orders — began termination proceedings against Roe, which culminated in the June 29, 2001 Notice of Termination for violation of all four policies. ER 11-13.
Roe sued in federal court, contending that his termination violated his First Amendment rights. Judge Keep correctly held that Roe failed to demonstrate how offering actual police uniforms for sale and producing, marketing, and selling sexually explicit videos for commercial profit is “speech on a matter of public concern” as defined in Connick, 461 U.S. at 138, 103 S.Ct. 1684, and Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir.1997), and granted summary judgment for the SDPD.
II
Analytically, the first question is whether Roe was terminated for exercising his right to free speech at all. After all, the SDPD terminated Roe for violations of four department policies directed to conduct, not speech. Roe was not fired for making, possessing, or viewing his videos; he was fired for selling them. On the other hand, only one of the three department policies at issue seems exclusively related to the marketing of the videos and other pornographic paraphernalia (Outside Employment). The other policies do tend to reach the subject matter of the videos themselves, i.e., Roe stripping off a police uniform and masturbating. Therefore, I do not take issue with the majority’s conclusion that there is some minimally expressive activity at issue. The question then is whether that expressive activity rises to the level of public concern such that the government may be hauled into federal court to justify its decision to terminate Roe.
That is the threshold question in any public employee speech case. See Connick, 461 U.S. at 146, 103 S.Ct. 1684. It is the employee who bears the burden of demonstrating that “her speech was constitutionally protected — that it addressed a matter of public concern.” Pool v. VanRheen, 297 F.3d 899, 906 (9th Cir.2002). This threshold question is the only question the district court decided and the only question presented here.
Instead of simply answering this question, the majority digresses to ask and answer its own questions, e.g, “[W]hether Roe’s status as a public employee effectively means he has no First Amendment protection even though his expressive conduct occurred off-duty, away from the workplace and said nothing about Roe’s government employment or employer”; and “[J]ust hoiv broad [is the government’s power as employer] in the specific context of off-duty, non-job-related speeeh[?]” Ante, at 1114, 1118 n. 6. Questions such as these mischaracterize the actual content of Roe’s speech and are utterly irrelevant to *1125whether Roe’s expressive conduct was speech on a matter of public concern. Indeed, if Roe’s expressive conduct was not on a matter of public concern, he has not been deprived of any First Amendment protection at all.
Although this threshold showing must be made in every public employee speech case, the majority treats it here as an alternative rather than a required approach. But the cases the majority references in its lengthy string-cite, ante, at 1119 n. 8, and elsewhere all make clear that a federal court may not resort to Pickering balancing until it first decides that the speech at issue is on a matter of public concern. See, e.g., Melzer v. Bd. of Educ., 336 F.3d 185, 196 (2d Cir.2003) (assuming a matter of public concern); Pappas v. Giuliani, 290 F.3d 143, 146-418 (2d Cir.2002) (same); Tucker v. Cal. Dept. of Educ., 97 F.3d 1204, 1210 (9th Cir.1996) (“Here, the speech is religious expression and it is obviously of public concern.”); Eberhardt v. O’Malley, 17 F.3d 1023, 1026-28 (7th Cir.1994) (same, noting “[t]he courts have had to separate speech that is not very valuable socially from whistle-blowing and other socially valuable expressive activities of public employees, and ‘matter of public concern’ is the label of the distinction”) (emphasis added); Berger v. Battaglia, 779 F.2d 992, 998-1002 (4th Cir.1985) (holding speech touched on a matter of public concern).
The majority’s reliance upon Flanagan v. Munger, 890 F.2d 1557, 1562-67 (10th Cir.1989), is particularly unfortunate. Flanagan disregarded the well-established public concern test in favor of its own “protected expression” test for a public employee’s “nonverbal expression that does not occur at work or is not about work.” Id. at 1564. In the 14 years since Flanagan was decided, no other circuit has adopted this approach. This is not surprising, as Flanagan directly conflicts with the teachings of Pickering, Connick, and their progeny. See discussion, infra, at 1129.
Where, as here, the public employee’s speech is not on a matter of public concern, our “intrusive oversight” of the government’s employment decision “in the name of the First Amendment” must end. Connick, 461 U.S. at 146, 103 S.Ct. 1684. As the Supreme Court reiterated fifteen years after Pickering:
Pickering, its antecedents and progeny, lead us to conclude that if Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer’s dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
Id. (emphasis added).
Ill
Whether public employee speech is on a matter of public concern is a question we review de novo, “looking to the ‘content, form, and context of a given statement, as revealed by the whole record.’ ” Ulrich v. City & County of San Francisco, 308 F.3d 968, 978 (9th Cir.2002) (quoting Connick, 461 U.S. at 147-48 & n. 7, 103 S.Ct. 1684).
*1126A
“Content is the greatest single factor in the Connick inquiry.” Havekost v. United States Dep’t of Navy, 925 F.2d 316, 318 (9th Cir.1991). See also Weeks v. Bayer, 246 F.3d 1231, 1234 (9th Cir.2001) (“First and foremost, we consider the content of the [public employee’s] speech.”). In this regard, we have consistently held that public employee speech is on a matter of public concern “if it helps citizens to make informed decisions about the operation of their government.” Roe v. City & County of San Francisco, 109 F.3d 578, 584 (9th Cir.1997); McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983). Thus, where public employee speech is “of no relevance to the public’s evaluation of the performance of governmental agencies, that speech ... receives no protection under the First Amendment.” Ulrich, 308 F.3d at 978 (citing Pool, 297 F.3d at 907; McKinley, 705 F.2d at 1114). “In other words, [to qualify for First Amendment protection] the content of the communication must be of broader societal concern,” with the focus on “whether the public or community is likely to be truly interested in the particular expression, or whether it is more properly viewed as essentially a private grievance.” Roe v. City & County of San Francisco, 109 F.3d at 585.
Other circuits have reasoned similarly. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1158-59 (11th Cir.2002) (analyzing public concern by inquiring whether the speech at issue is “the sort of public discourse which the First Amendment was intended to protect”); Hardy v. Jefferson Community Coll., 260 F.3d 671, 678 (6th Cir.2001) (“The [public concern] distinction is based upon the principle that ‘speech on public issues occupies the highest rung of the heirarchy [sic] of First Amendment values, and is entitled to special protection.’ ” (quoting Connick, 461 U.S. at 145, 103 S.Ct. 1684)); Azzaro v. County of Allegheny, 110 F.3d 968, 977 (3d Cir.1997) (en banc) (“Given that the basis for the special protection accorded public concern speech is its instrumental value to the community in enabling self-governance, a court asked whether public employee’s speech relates to a matter of public concern must determine whether expression of the kind at issue is of value to the process of self-governance.”). See also Toni M. Massaro, Significant Silences: Freedom of Speech in the Public Sector Workplace, 61 S. Cal. L.Rev. 1, 4, 20 n. 95 (1987) (recognizing that “courts defer broadly — often decisively — to the government employer’s need for disciplinary discretion” and collecting cases where employee speech was not found to address a public concern).
The majority argues that these cases are inapposite because Roe’s expressive conduct was supposedly “unrelated to work” and thus not the type of speech the public concern test was meant to preclude. E.g., ante, at 1119-1120. In making this determination of law, the majority inexplicably chooses to cite the SDPD’s brief, ante, at 1112 n. 4, 1120, rather than analyze the allegations of Roe’s complaint, in which Roe claims that while he was employed as an officer in the SDPD: (1) he offered for sale police uniforms formerly used by the SDPD and the National City Police Department; (2) he produced and sold videotapes depicting himself stripping off a police uniform and masturbating; (3) he produced and sold a custom-made video depicting himself in uniform issuing a citation then stripping off his uniform and masturbating; (4) his eBay username referenced “Code3,” a commonly understood high-priority police radio call; and (5) he described himself in his seller’s profile as being “in the field of Law Enforcement.” Obviously, the whole point of Roe’s internet marketing activities was that his items were “genuine” because they were being offered for sale by the actual police officer *1127pictured in the seller’s profile; he used the fact that he was a police officer to market his wares. Moreover, the majority’s argument that Roe’s expressive conduct was not “in any way about the San Diego Police Department” and “[did] not associate [Roe] with the Department,” ante, at 1120, 1121, is simply at odds with Roe’s alleged facts: Roe offered for sale an actual SDPD officer’s uniform. These internet marketing activities caused concern at the SDPD because, among other reasons, such activities would compromise Roe’s authority and the safety of others in carrying out his duties as a police officer. Contrary to the majority’s myopic interpretation of what “relates” to one’s job, Roe’s expressive conduct plainly related to his job.
The majority also tries to distinguish the myriad public employee speech cases on the ground that the public concern test does not preclude Roe’s expressive conduct because his speech did not involve a workplace grievance. Ante, at 1115-1117, 1120-1121. But the majority forgets that Roe was terminated for, among other reasons, outside employment and disobeying the orders of his captain. By continuing to maintain his eBay seller’s profile after his captain ordered him to remove it, Roe’s expressive conduct pertained to his job in that it expressed disdain or disregard for the employment restrictions placed upon him by his supervisor, i.e., a personnel dispute or workplace grievance. In any event, the cases referenced above from this circuit and others are relevant because they establish that public employee speech must be of “broader social concern” to receive First Amendment protection from adverse employer action.
The majority purports to buttress its argument with extensive quotation, ante, at 1119-1120, from Berger v. Battaglia, a nearly twenty-year-old Fourth Circuit case. 779 F.2d at 992. But the majority conveniently brushes aside a critical aspect of that decision. Berger held that an off-duty police officer’s public, “blackface” musical performances were a matter of public concern because, inter alia, those performances were “a form of artistic expression.” 779 F.2d at 997. See also Tindle v. Caudell, 56 F.3d 966, 970 (8th Cir.1995) (distinguishing Berger and holding a Halloween costume was not speech on a matter of public concern because “[a]rtistic expression before a public audience is quite different from a decision to wear a costume to a private Halloween party. Here there were no public performances, and there is little in the record to suggest there was much entertainment value in Tindle’s appearance.”). Of course, neither Roe nor the majority argues that Roe’s videos are a form of artistic expression. Thus, whether Berger “viewed artistic expression broadly,” ante, at 1119 n. 7, is irrelevant. Berger is inapposite.
Under these precedents, Roe’s expressive conduct plainly does not rise to the level of “speech on a matter of public concern.” Even Roe does not assert that his videos convey such speech. Indeed, he does not argue that his video masturbation communicates any idea at all. Cf. Tindle, 56 F.3d at 970 (“Tindle does not claim he intended to comment on any issue of interest to the public.... [Entertaining] other guests at a private party [by wearing an amusing costume] with no showing of any intended message is not speech on a matter of public concern.”). Rather, Roe argues that we need not apply the public concern test, urging us instead to follow the misguided Flanagan approach. Simply put, Roe’s videos do not contain material “of broader societal concern” such that they should be accorded “the highest degree of First Amendment protection.” Roe v. City & County of San Francisco, 109 F.3d at 584-85 (citing McKinley, 705 F.2d at 1114).
*1128B
Another “critical inquiry is whether the employee spoke in order to bring wrongdoing to light or merely to further some purely private interest.” Havekost, 925 F.2d at 319. “[I]f the [public employee’s speech] is essentially self-interested, with no public import, then it is ... not of sufficient concern to the general public to trigger First Amendment scrutiny.” Roe v. City & County of San Francisco, 109 F.3d at 585. Where the government disciplines a public employee for private-interest speech, “ ‘a federal court is not the appropriate foram’ in which to review the [employment decisionj’absent the most unusual circumstances.’ ” Id. (quoting Connick, 461 U.S. at 147, 103 S.Ct. 1684).
Here, Roe’s expressive activity, although conveyed via the internet, was in actuality directed to the private individual consumer of his products rather than the general public. His “speech” was not intended to bring some government mischief to light or to inform or otherwise enlighten the public; it was intended to facilitate his outside business activities — a “purely private interest.” The majority assumes its own conclusion when it asserts that commercial gain “is not the type of motivation that the public concern test screens from [First Amendment] protection” because “compensation provides a significant incentive toward more expression.” Ante, at 1122 (another out-of-context quote from NTEU, 513 U.S. at 469, 115 S.Ct. 1003). If the employee’s expressive conduct is not a matter of public concern, as is the case here, it is not protected by the First Amendment and there is no relevant incentive toward expression.
Thus, analysis of Roe’s motivation also makes clear that his videos are not entitled to the First Amendment protections reserved to public employees for speech on a matter of public concern.
C
Roe simply has not met his burden of showing that the “content, form, and context” of his expressive conduct meets the public concern threshold. Although the majority employs many euphemisms to describe the content of Roe’s videos, e.g., “sexually explicit but not obscene,” “crude and sexually explicit,” but “within the broad realm of protected expression,” ante, at 1110, 1112, 1113, 1120, Roe himself alleges that his videos are pornography — a more accurate, and honest, assessment. But displaying, offering to sell, and selling pornography may not be honestly considered “as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. 1684. Roe’s “speech” is of no more “concern to the community” than any other private commercial transaction involving pornography.
The pornographic nature of Roe’s videos is highly relevant because it establishes under our precedent that Roe’s speech is not on a matter of public concern. Although the majority appears to suggest that this dissent is founded upon a view that Roe’s videos are “distasteful or discomforting” or because Roe’s videos “offend our sensibilities,” ante, at 1120-1121, such speculation does not advance the majority’s argument. Whether Roe’s “distasteful or discomforting” videos would otherwise be protected by the First Amendment misses the point entirely. Because Roe’s videos “cannot be fairly characterized as constituting speech on a matter of public concern,” Connick, 461 U.S. at 146, 103 S.Ct. 1684, Roe’s First Amendment rights have not been violated and the SDPD should not be required to justify in federal court its decision to terminate him.
IV
The majority contends that a new definition of the public concern test is warranted *1129here because Roe’s expressive conduct (purportedly) did not relate to his job and was not about personnel matters; occurred outside of work; and was “directed to a segment of the general public.” Ante, at 1121-1122. Applying its new test, the majority boldly concludes, without citing a single case, that speech is a matter of public concern and Pickering balancing is required so long as the speech meets these criteria and “does not fall within an unprotected category of speech” under the First Amendment. Ante, at 1122. Although it claims otherwise, the majority thus adopts the backward “protected expression” test that the Tenth Circuit invented in Flanagan as an “alternative” to the public concern test where a public employee’s “nonverbal protected expression does not occur at work and is not about work.” 890 F.2d at 1564. No other court has employed Flanagan’s “protected expression” approach, and no court has been so bold as to try to recast it as a modified public concern test — until now. See ante, at 1120 n. 9.
The majority’s misguided, misnamed approach misapprehends why there is a public concern test in the first place. The test exists to exempt from employer discipline public employee discourse at the “highest” level of protected speech' — not the lowest level. Roe v. City & County of San Francisco, 109 F.3d at 584-85 (citing McKinley, 705 F.2d at 1114). It exists because if there were not a threshold of protected speech, the public employer would be free to fire an employee for any speech of which the employer disapproved, including speech on matters of great public import. To assert, again without any authority, that a public employee may engage in the full range of protected speech free from consequence ignores Supreme Court and our own jurisprudence, which have carved out from the prospect of public employer discipline only a segment of protected speech. The majority turns the doctrine of public employee speech on its head— Katie, bar the door! — for the federal courts now will sit in judgment over every adverse public employee action involving not speech on a matter of public concern, but speech in the slightest.
Nor does NTEU, 513 U.S. at 454, 115 S.Ct. 1003, further the majority’s cause. In NTEU, the Supreme Court struck down the Ethics in Government Act’s ban on receipt of honoraria by federal government employees for various speech activities. In its discussion of NTEU, the majority acknowledges that the public concern issue “was not the central issue in the case.” Ante, at 1118. In point of fact, it was not at issue in the case at all. Public employees had submitted affidavits describing their compensation for past speech activities that would be prohibited under the honoraria ban, which activities included lectures on the Quaker religion and Russian and African-American history, and articles and appearances reviewing dance performances and the environment. NTEU, 513 U.S. at 461-62, 115 S.Ct. 1003. Not surprisingly, the government never sought to defend the statute against the employees’ First Amendment challenges on the ground that these speech activities did not involve matters of public concern. Accordingly, the Court never expressly reached the issue, implicitly finding the speech activities on matters of public concern and proceeding to evaluate the statutory ban under a Pickering balancing test. Id. at 464-72, 115 S.Ct. 1003.
The Supreme Court was not asked in NTEU to revisit its public concern holdings, and it did not “appl[y] the public concern” test. Ante, at 1117. The majority plays fast and loose with Supreme Court precedent when it cites the D.C. Circuit’s opinion in NTEU and baldly asserts that “[t]he Supreme Court did not disagree” *1130with that court’s limited discussion of the issue. Ante, at 1118. That hardly constitutes a holding on the question of public concern. Therefore, NTEU does not provide any basis for the majority’s newly minted public concern test.
Moreover, extracting convenient, abstract “compartments” of speech, e.g., “speaking as citizen, not as government employee,” “addressed to a public audience,” “largely unrelated to government employment,” and “of interest to a segment of the general public,” from NTEU to fashion a new bright-line public concern test is analytically incorrect. In the context of public employee speech, we have warned against “the ‘dangers of reducing the First Amendment to a series of doctrinal cubbyholes’ and of ‘warping different fact situations to fit into the boxes we have created.’ ” Roe v. City & County of San Francisco, 109 F.3d at 586 (quoting Tucker v. Cal. Dept. of Ed., 97 F.3d 1204, 1209 (9th Cir.1996)). See also Weeks, 246 F.3d at 1234 (“Fortunately, [in analyzing whether speech is on a matter of public concern,] we have avoided multi-part tests that would shoehorn communication into ill-fitting categories.”).
It is this impermissible “fact warping” and “shoehorning” that elevates form over substance, allowing the majority absurdly to conclude that “Roe’s expressive activities — as crude as they may appear — ... fall[ ] within the protected category of citizen comment on matters of public concern, rather than employee comment on matters related to his personal status in the workplace.” Ante, at 1112. This holding demeans the “significant contributions to the marketplace of ideas” by public employees, which are properly protected under the First Amendment. NTEU, 513 U.S. at 455-56, 115 S.Ct. 1003 (noting that Nathaniel Hawthorne, Herman Melville, Walt Whitman, and federal employees of lesser literary stature did not and do not “relinquish[ ] the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest ”) (emphasis added). Freed from the cubbyholes and analyzed as a whole, Roe’s pornographic videos do not involve a matter of public concern as heretofore defined.
V
Rather than relying on NTEU, the majority should have turned for guidance to Justice O’Connor’s opinion in Waters v. Churchill, 511 U.S. at 661, 114 S.Ct. 1878, which involved a public employee disciplined for her speech and discussed the fundamental rationale that animates the public concern test: “[T]he government’s role as employer ... gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large[.]” Id. at 671, 114 S.Ct. 1878. As Justice O’Connor explained:
[This principle] is amply borne out by considering the practical realities of government employment, and the many situations in which, we believe, most observers would agree that the government must be able to restrict its employees’ speech.... [E]ven many of the most fundamental maxims of our First Amendment jurisprudence cannot reasonably be applied to speech by government employees.
Id. at 672, 114 S.Ct. 1878. See also Rendish, 123 F.3d at 1219 (“[T]he State’s interest in regulating the speech of its employees differs significantly from its interest in regulating the speech of its citizenry.”).
For example, Waters recognizes that “[e]ven something as close to the core of the First Amendment as participation in political campaigns may be prohibited to government employees.” Id. Similarly, although speech restrictions must “generally precisely define the speech they target,” Waters recognizes that “a public employer *1131may, consistently with the First Amendment, prohibit its employees from being ‘rude to customers,’ a standard almost certainly too vague when applied to the public at large.” Id. at 673, 14 S.Ct. 1878.
Further elaborating on this important distinction, Waters acknowledges the well-established principle that should govern our decision here:
[W]e have refrained from intervening in government employer decisions that are based on speech that is of entirely private concern. Doubtless some such speech is sometimes nondisruptive; doubtless it is sometimes of value to the speakers and the listeners. But we have declined to question government employers’ decisions on such matters.
Id. at 674, 114 S.Ct. 1878 (citing Connick, 461 U.S. at 146-49, 103 S.Ct. 1684).
The lesson of Connick and Waters is that the government’s power as employer is broader than its power as sovereign. “The key to First Amendment analysis of government employment decisions [is that] the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Waters, 511 U.S. at 675, 114 S.Ct. 1878. See also Connick, 461 U.S. at 147, 103 S.Ct. 1684 (recognizing that a government employer may restrict speech that would otherwise not lie “beyond the protection of the First Amendment”).
Roe’s purely private expressive conduct is protected by the First Amendment. The government could not enact a law prohibiting him from making and selling his videos. But under Connick, Waters, and the relevant SDPD employment regulations, if Roe wishes to be an officer in the SDPD, he is subject to termination for speech within the ambit of the First Amendment, but which does not involve a matter of public concern. That employment decision lies within the sound discretion of the police department, not a federal court sitting as the “Supreme Civil Service Commission.” SDPD’s Brief at 16. All this means is that Roe’s First Amendment rights are those of an ordinary employee, subject to the rules and regulations of his employer. The mere fact that Roe is a public employee does not gain him greater First Amendment protection than the ordinary citizen subject to the ordinary dismissal. This critical point appears to be totally lost on the majority. See ante, at 1118 n. 6.
The nature and content of Roe’s speech determines whether Roe’s termination is subject to First Amendment review. Because Roe’s speech “cannot be fairly characterized as constituting speech on a matter of public concern, the First Amendment is inapplicable and the court need not scrutinize the reasons for any adverse actions.” Ulrich, 308 F.3d at 977-78 (citing Connick, 461 U.S. at 146, 103 S.Ct. 1684). Remand for analysis under Pickering or Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), is therefore unwarranted, and I would affirm the district court.