UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT JUAN HERNANDEZ; ARIZONA No. 21-16007 CONFERENCE OF POLICE AND SHERIFFS, an Arizona nonprofit D.C. No. corporation; MARK SCHWEIKERT, 2:19-cv-05365- Plaintiffs-Appellants, MTL V. OPINION CITY OF PHOENIX, a municipal corporation; JERI WILLIAMS, in her official capacity as Chief of Police of the Phoenix Police Department; SHANE DISOTELL, in his official capacity as the Commander of the Phoenix Police Professional Standards Bureau, Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding Argued and Submitted March 10, 2022 Phoenix, Arizona Filed August 5, 2022 2 HERNANDEZ V. CITY OF PHOENIX

Before: Richard A. Paez, Richard R. Clifton, and Paul J. Watford, Circuit Judges. Opinion by Judge Watford

SUMMARY

Civil Rights The panel affirmed in part and reversed in part the district court’s dismissal of an action brought pursuant to 42 U.S.C. § 1983 and Arizona law alleging that: (1) the City of Phoenix Police Department retaliated against Sergeant Juan Hernandez in violation of his First Amendment rights when it took steps to discipline him for posting content to his personal Facebook profile that denigrated Muslims and Islam; and (2) provisions of the Department’s social media policy were overbroad and vague. The district court rejected plaintiffs’ First Amendment retaliation claim on the ground that Hernandez’s speech did not address matters of public concern and was therefore not entitled to constitutional protection under the balancing test established in Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968). The court also rejected plaintiffs’ claim that certain provisions of the Department’s social media policy were facially invalid.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. HERNANDEZ V. CITY OF PHOENIX 3

Analyzing the content, form (time, place, and manner) and context of Hernandez’s posts, the panel concluded that the posts qualified as speech on matters of public concern. While it was true that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents, the Supreme Court has made clear that the inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern. Although it seemed likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Department’s ability to effectively carry out its mission, no evidence of actual or potential disruptive impact caused by Hernandez’s posts was properly before the panel at this stage of the proceedings. The panel therefore reversed the district court’s dismissal of plaintiffs’ First Amendment retaliation claim and his related claim under the Arizona Constitution and remanded for further development of the factual record. The panel held that the district court properly rejected plaintiffs’ facial overbreadth challenge to certain provisions of the Department’s social media policy, except as to the clauses prohibiting social media activity that (1) would cause embarrassment to or discredit the Department, or (2) divulge any information gained while in the performance of official duties, as set forth in section 3.27.9B.(7) of the policy. In largely agreeing with the district court, the panel noted that most of the challenged restrictions directly promoted the same interests that the Supreme Court has already held to be valid bases for imposing restrictions on public employee speech—government employers have a strong interest in prohibiting speech by their employees that undermines the 4 HERNANDEZ V. CITY OF PHOENIX

employer’s mission or hampers the effective functioning of the employer’s operations. The Department, however, did