Kate Adams v. Sacramento County, California, et al.

This case presents a clear, recognized, and entrenched conflict over the First Amendment rights of public employees: whether speech made as a private citizen about controversial subjects—speech long understood to lie at the core of public concern—always receives at least some level of First Amendment protection, or instead loses all protection when it is not expressed in a manner intended to engage in public debate or advocacy. In the decision below, a split Ninth Circuit panel held, over a dissent by Judge Callahan, that a public employee’s off-duty speech about racist imagery was not speech on a matter of public concern because it “complain[ed] of only private, out- of-work, offensive individual contact” and did not “protest generally applicable ‘policies and practices’ she ‘conceived to be racially discriminatory in purpose or effect.’” Pet. App. 11a. It thus was not, as the Court put it, “framed in a manner calculated to ignite that public interest.” Pet. App. 13a. That holding deepens an intractable 7-5 circuit split over how courts determine whether speech addresses a matter of public concern. Seven circuits hold that speech on controversial subjects like racism is always speech on a matter of public concern because of its subject matter. Five—including now the Ninth—hold that such speech loses all First Amendment protection unless expressed in a way courts later deem sufficiently public-facing or advocacy-oriented. The question presented is: Whether public employee speech, made as a private citizen and about a controversial subject, loses all First Amendment protection unless the speech is intended “to ignite th[e] public interest.” (i)