concurring in the judgment:
I
With all due respect, I am unable to join the majority opinion 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 properly 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, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam).
Dible’s website activity was not employment-related, however. As the majority opinion points out, Dible was careful not to identify himself or his website with the police department or with police status at all. That fact differentiates his case from Roe. Certainly nothing in the activity Dible portrayed suggested a connection with the police. I am unwilling to conclude, for reasons I will set forth below, that such unrelated expression becomes related to Dible’s employment simply 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 governmental employee’s expression unrelated to the employment 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, 88 S.Ct. 1731, 20 L.Ed.2d 811 (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, 125 S.Ct. 521, 160 L.Ed.2d 410 (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 *1053recognizes, 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 expression, 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 expressive activities as “vulgar,” “indecent,” “sleazy,” and “disreputable.” 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, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Pornography, and sexual expression in general, is protected by the First Amendment 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, 109 S.Ct. 2829, 106 L.Ed.2d 93 (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, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (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 demonstrated. At least three officers testified that they had been verbally 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 interference 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 Treasury Employees standard. It does not outweigh Dible’s interest 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
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 depart*1054ment employee. Nothing 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 possibly 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, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). In such a situation, it is the duty of the police department to prevent the disruption by those opposed to the speech, not to suppress or punish the speech. See Cohen, 403 U.S. at 23, 91 S.Ct. 1780.
The heckler’s veto applied to sexually expressive activities has disturbing potential for expansive application. A measurable 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 discovered to have engaged, off duty and unidentified by his activity, 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 public 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 justification 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. 1049 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 expressive 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, 88 S.Ct. 1731. But that rule is an exception to the general First Amendment protection of speech. See Treasury Employees, 513 U.S. at 465, 115 S.Ct. 1003. To apply the same restriction to off-duty expression by a public employee, unrelated to his employment, is to reject the established principle that public employees may not be required to surrender their consti*1055tutional right of free speech as a condition of their employment. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 605, 87 S.Ct. 675, 17 L.Ed.2d 629 (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 conduct 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 statements to police department investigators, had he not been discharged for his website activity. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). There was ample and uncon-tradicted 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 website, when he had told a co-worker to lie. Although some of these statements were later “corrected” or modified, the original 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 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 statements 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 retaliated against an employee for protected activity were not shielded when they initiated termination proceedings that ultimately resulted in a discharge of the employee by superiors who acted without a retaliatory motive. Gilbrook is distinguishable on several grounds, but two are sufficient for present purposes. First, Gilbrook did not involve false statements or other misconduct by the employee during the administrative 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 *1056in the present case was not illegitimate in its inception. The department 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 department 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.
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.
. In light the fact that a majority of the panel disagrees with my conclusion 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.