PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2207

HERBERT E. LIVERMAN; VANCE R. RICHARDS,
Plaintiffs - Appellants,
v.
CITY OF PETERSBURG; JOHN I. DIXON, III, both individually
and in his capacity as the Chief of Police for the City of
Petersburg Bureau of Police,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cv-00139-JRS)

Argued:

October 27, 2016

Decided:

December 15, 2016

Before WILKINSON and TRAXLER, Circuit Judges, and Bruce
HENDRICKS, United States District Judge for the District
South Carolina, sitting by designation.

H.
of

Affirmed in part, reversed in part, and remanded by published
opinion.
Judge Wilkinson wrote the opinion, in which Judge
Traxler and Judge Hendricks joined.

ARGUED: Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC,
Richmond, Virginia, for Appellants.
Leslie A. Winneberger,
BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia,
for Appellees.
ON BRIEF: William F. Etherington, BEALE,
DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for
Appellees.

 WILKINSON, Circuit Judge:
Two

police

officers

challenge

disciplinary

actions

for

violations of their Department’s social networking policy. The
district court denied relief on most of their claims. While we
are sensitive to the Department’s need for discipline throughout
the

chain

of

command,

the

policy

here

and

the

disciplinary

actions taken pursuant to it would, if upheld, lead to an utter
lack

of

transparency

in

law

enforcement

operations

that

the

First Amendment cannot countenance. For the reasons that follow,
we

affirm

in

part,

reverse

in

part

and

remand

for

further

proceedings.
I.
The

pertinent

Plaintiffs

facts

Herbert

in

Liverman

this
and

case

Vance

are

not

Richards

in

dispute.

were

veteran

police officers in the City of Petersburg’s Police Department.
Both served as field officers under Chief John Dixon, who led
the Department. Dixon in turn served under the general direction
of the City Manager.
In April 2013, Chief Dixon issued a general order revising
the Department’s social networking policy. That policy governs
officers’

use

of

social

media

platforms.

The

preface

to

the

revised policy prohibits in sweeping terms the dissemination of
any

information

unfavorably

upon

“that
the

would

tend

[Department]
2

to
or

discredit
any

or

other

reflect
City

of

 Petersburg Department or its employees.” J.A. 161. The central
provision of the policy, which we will refer to as the Negative
Comments Provision, states:
Negative comments on the internal operations of the
Bureau, or specific conduct of supervisors or peers
that impacts the public’s perception of the department
is not protected by the First Amendment free speech
clause, in accordance with established case law.
J.A. 162. Another provision, which we label the Public Concern
Provision, specifies:
Officers may comment on issues of general or public
concern (as opposed to personal grievances) so long as
the comments do not disrupt the workforce, interfere
with important working relationships or efficient work
flow, or undermine public confidence in the officer.
The instances must be judged on a case-by-case basis.
Id. The policy nonetheless “strongly discourages employees from
posting information regarding off-duty activities” and provides
that violations will be forwarded to the Chief of Police for
“appropriate disciplinary action.” J.A. 163.
This

case

concerns

the

Department’s

application

of

the

social networking policy to the following conversation between
Liverman and Richards. While off-duty on June 17, 2013, Liverman
posted a message to his Facebook page:
Sitting here reading posts referencing rookie cops
becoming instructors. Give me a freaking break, over
15 years of data collected by the FBI in reference to
assaults on officers and officer deaths shows that on
average it takes at least 5 years for an officer to
acquire the necessary skill set to know the job and
perhaps even longer to acquire the knowledge to teach
other officers. But in todays world of instant
3

 gratification
and
political
correctness
we
have
rookies in specialty units, working as field training
officer’s and even as instructors. Becoming a master
of your trade is essential, not only does your life
depend on it but more importantly the lives of others.
Leadership is first learning, knowing and then doing.
J.A. 398. More than thirty people “liked” or commented on this
post. Richards, also off-duty at the time, commented as follows:
Well said bro, I agree 110%... Not to mention you are
seeing more and more younger Officers being promoted
in a Supervisor/ or roll. It’s disgusting and makes me
sick to my stomach DAILY. LEO Supervisors should be
promoted
by
experience...
And
what
comes
with
experience are “experiences” that “they” can pass
around to the Rookies and younger less experienced
Officers. Perfect example, and you know who I’m
talking about..... How can ANYONE look up, or give
respect to a SGT in Patrol with ONLY 1 1/2yrs
experience in the street? Or less as a matter of fact.
It’s a Law Suit waiting to happen. And you know who
will be responsible for that Law Suit? A Police Vet,
who knew tried telling and warn the admin for
promoting the young Rookie who was too inexperienced
for that roll to begin with. Im with ya bro....smh *
J.A. 399. Later that day, Liverman responded to Richards with a
comment of his own:
There used to be a time when you had to earn a
promotion or a spot in a specialty unit...but now it
seems as though anything goes and beyond officer
safety and questions of liability, these positions
have been “devalued”...and when something has no
value, well it is worthless.
Id. Richards then replied:
Your right..... The next 4yrs can’t get here fast
enough... From what I’ve been seeing I don’t think I
can last though. You know the old “but true” saying
*

“Smh” is an acronym for “shaking my head.”
4

 is....
Your
Agency
is
only
as
good
as
it’s
Leader(s)... It’s hard to “lead by example” when there
isn’t one....smh
J.A. 400.
Among

those

who

liked

or

commented

on

the

Facebook

postings, most were current or former Department officers. Two
sergeants, Liverman’s and Richards’s supervisors, learned of the
exchange and notified Chief Dixon of the issue. Dixon determined
that the statements violated the Department’s social networking
policy and instructed the sergeants to discipline the officers.
In the disciplinary action forms, the Department stated that
Liverman’s

follow-up

comment

and

both

of

Richards’s

comments

violated the Negative Comments Provision. They each received an
oral reprimand and six months’ probation, but were advised that
such

discipline

would

not

affect

their

eligibility

for

promotion. Both the City Manager and Human Resources Director
signed the personnel action forms indicating their probationary
status.
Several

weeks

qualifications

later,

for

however,

promotion.

Chief

The

new

Dixon

altered

protocol

the

expressly

excluded any officers on probation from participating in the
promotion
applied

process.

for

open

Accordingly,

sergeant

when

positions,

Liverman
the

and

Richards

Department

notified

them that they were ineligible to sit for the promotional exam.

5

 On

October

1,

2013,

the

City

that

informing

the

two

they

officers

intended

sent

to

a

letter

challenge

the

disciplinary actions. Shortly thereafter, Liverman and Richards
were the subject of several complaints and investigations within
the Department. Based on the findings, Chief Dixon decided to
fire Liverman, but Liverman resigned before receiving notice of
his termination.
On March 5, 2014, Liverman and Richards filed a six-count
complaint

in

federal

district

court

under

42

U.S.C.

§ 1983,

seeking damages and other relief against Chief Dixon and the
City

for

officers
their

various
claimed

free

violations
that

speech

the

rights

of

the

social
in

First

Amendment.

networking

Counts

One

policy

The

two

infringed

(Liverman)

and

Two

(Richards). Liverman and Richards also challenged the adverse
disciplinary

actions

taken

pursuant

to

the

policy

in

Counts

Three and Four, respectively. Finally, they alleged in Counts
Five

and

Six

that

the

Department

instituted

subsequent

investigations against them in retaliation for proceeding with
the instant suit.
The district court granted Liverman summary judgment on his
claim that the social networking policy infringed his right to
free speech, but nonetheless found that Chief Dixon was entitled
to

qualified

immunity

because

the

policy

fell

within

a

gray

zone. On Liverman’s challenge to the disciplinary action, the
6

 court

found

that

qualified

immunity

again

shielded

Dixon’s

decision because the contours of protected speech in this area
were not clearly established. The district court next denied
relief

on

Richards’s

challenges

to

the

policy

and

the

discipline, holding that Richards’s speech was purely personal
and thus not protected by the First Amendment. For both of their
retaliation
internal

claims,

the

investigations

court

concluded

were

not

that

the

retaliatory.

subsequent

This

appeal

followed.
II.
The legal framework governing public employee speech claims
is

well

known.

Public

employees

may

not

“be

compelled

to

relinquish the First Amendment rights they would otherwise enjoy
as citizens to comment on matters of public interest.” Pickering
v.

Bd.

of

Educ., 391

U.S.

563,

568

(1968).

Underlying

this

principle is the recognition that “public employees are often
the members of the community who are likely to have informed
opinions as to the operations of their public employers.” City
of

San

Diego

Nonetheless,

v.
a

Roe,

citizen

543
who

U.S.

77,

accepts

82

(2004)

public

(per

curiam).

employment

“must

accept certain limitations on his or her freedom.” Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy
considerable

discretion

to

manage

their

operations,

and

the

First Amendment “does not require a public office to be run as a
7

 roundtable

for

employee

complaints

over

internal

office

affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).
Courts
whether

begin

the

the

First

Amendment

at

issue

relates

speech

concern. See Pickering, 391

U.S.

at

inquiry

to

568.

by

assessing

a

matter

of

public

If

speech

is

purely

personal, it is not protected and the inquiry is at an end. If,
however, the speech is of public concern, courts must balance
“the interests of the [employee], as a citizen, in commenting
upon matters 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.; see also Connick, 461
U.S. at 142.
Against
Amendment
policy

and

this

backdrop,

challenges
the

to

we

the

subsequent

turn

to

the

Department’s

disciplinary

officers’

social

actions

First

networking

taken

against

them.
A.
The district court granted summary judgment to Liverman on
his

challenge

to

the

social

networking

policy,

but

denied

Richards’s parallel claim on the grounds that his speech was not
protected by the First Amendment. We hold that the Department’s
social

networking

policy

is

unconstitutionally

overbroad

and,

for the following reasons, award judgment to Richards on his
claim as well.
8

 Although

regulations

on

social

media

use

may

appear

to

present novel issues, we agree with the district court that such
questions are amenable to the traditional analysis set forth in
Connick

and

Pickering.

social

media

fit

Indeed,

comfortably

the

particular

within

the

attributes

existing

of

balancing

inquiry: A social media platform amplifies the distribution of
the speaker’s message — which favors the employee’s free speech
interests

—

but

also

increases

the

potential,

in

some

cases

exponentially, for departmental disruption, thereby favoring the
employer’s interest in efficiency. What matters to the First
Amendment analysis is not only the medium of the speech, but the
scope and content of the restriction.
Here we deal with a broad social networking policy setting
forth the parameters of public employee speech. In United States
v.

Nat’l

(1995), the

Treasury
Supreme

apply Pickering when
regulation

Employees

(as

Court
a

opposed

Union

addressed

generally
to

(NTEU),

a

how

applicable

post-hoc

513

U.S.

courts

should

statute

disciplinary

454

or

action)

operates as a prior restraint on speech. NTEU involved a statute
that

prohibited

federal

employees

from

accepting

any

compensation for giving speeches or writing articles, even when
the topic was unrelated to the employee’s official duties. See
id. at 457. Emphasizing that the honoraria ban impeded a “broad
category of expression” and “chills potential speech before it
9

 happens,”

the

Court

held

that

“the

Government’s

burden

is

greater with respect to this statutory restriction on expression
than with respect to [the] isolated disciplinary action[s]” in
Pickering and its progeny. Id. at 467, 468. Accordingly, “[t]he
Government

must

show

that

the

interests

of

both

potential

audiences and a vast group of present and future employees in a
broad range of present and future expression are outweighed by
that expression’s ‘necessary impact on the actual operation’ of
the

Government.”

Id.

at

468

(quoting

Pickering,

391

U.S.

at

571). Further, the government “must demonstrate that the recited
harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material
way.” Id. at 475.
The

threshold

Department’s

question

policy

in

regulates

this

officers’

case

is

rights

whether
to

the

speak

on

matters of public concern. There can be no doubt that it does:
the restraint is a virtual blanket prohibition on all speech
critical of the government employer. The explicit terms of the
Negative

Comments

Provision

prevent

plaintiffs

and

any

other

officer from making unfavorable comments on the operations and
policies of the Department, arguably the “paradigmatic” matter
of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir.
1995); see also Roe, 543 U.S. at 80.

10

 Weighing
Pickering/NTEU

the

competing

balance,

we

interests

on

begin

noting

by

either

side

the

of

the

astonishing

breadth of the social networking policy’s language. The policy
seeks to prohibit the dissemination of any information on social
media “that would tend to discredit or reflect unfavorably upon
the

[Department].”

Comments

J.A.

Provision

161.

In

proscribes

particular,

“[n]egative

the

Negative

comments

on

the

internal operations of the Bureau” — which could be just about
anything — or on the “specific conduct of supervisors or peers”
— which, again, could be just about anything. J.A. 162.
The interests of “present and future employees” and their
“potential audiences” in such speech is manifestly significant.
See NTEU, 513 U.S. at 468. We do not, of course, discount the
capacity of social media to amplify expressions of rancor and
vitriol,

with

relationships
sites

like

all

its

that

potential

Connick

Facebook

have

disruption

condemned.

also

emerged

But
as

of

social
a

hub

workplace
networking

for

sharing

information and opinions with one’s larger community. And the
speech prohibited by the policy might affect the public interest
in

any

number

enforcing

the

of
law

ways,
in

an

including
effective

whether
and

the

Department

diligent

manner,

is
or

whether it is doing so in a way that is just and evenhanded to
all concerned. The Department’s law enforcement policies could
well become a matter of constructive public debate and dialogue
11

 between law enforcement officers and those whose safety they are
sworn to protect. After all, “[g]overnment employees are often
in the best position to know what ails the agencies for which
they

work.”

Waters

v.

Churchill,

511

U.S.

661,

674

(1994)

(plurality opinion). But this policy will cut short all of that.
To repeat, it squashes speech on matters of public import at the
very outset.
Because

the

unmistakably

Department’s

imposes

a

social

significant

networking

burden

on

policy

expressive

activity, we next consider whether the Department has adequately
established

“real,

not

merely

conjectural”

harms

to

its

operations. See NTEU, 513 U.S. at 475. Chief Dixon’s primary
contention

is

that

divisive

social

media

use

undermines

the

Department’s interests in maintaining camaraderie among patrol
officers and building community trust. These are, to be sure,
legitimate

interests.

“When

close

working

relationships

are

essential to fulfilling public responsibilities, a wide degree
of

deference

to

the

employer’s

judgment

is

appropriate.”

Connick, 461 U.S. at 151-52. And such deference applies with
special

force

“paramilitary

—

to

police

discipline

departments
is

demanded,

because
and

they

freedom

must

are
be

correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295,
300 (4th Cir. 1992).

12

 Here, however, the Department fails to satisfy its burden
of demonstrating actual disruption to its mission. Apart from
generalized

allegations

of

budding

“divisiveness”

and

claims

that some “patrol officers sought [shift] transfers,” J.A. 502,
Chief Dixon presented no evidence of any material disruption
arising from plaintiffs’ — or any other officer’s — comments on
social media. We do not deny that officers’ social media use
might

present

particularly

some
given

potential

for

the

audience

broad

division

within

on

the

Facebook.

ranks,

But

the

speculative ills targeted by the social networking policy are
not

sufficient

officers’

to

freedom

justify

to

debate

such

sweeping

matters

of

restrictions

public

concern.

on
See

Connick, 461 U.S. at 152; McVey v. Stacy, 157 F.3d 271, 279 (4th
Cir. 1998) (Murnaghan, J., concurring in part and concurring in
the judgment) (“A stronger showing of public interest in the
speech requires a concomitantly stronger showing of governmentemployer interest to overcome it.”).
Defendants’ fallback argument is that, even if the Negative
Comments
Provision

Provision

itself

significantly

is

overbroad,

narrows

the

the

reach

Public
of

the

Concern
social

networking policy. This second provision, which permits comments
on “issues of general or public concern . . . so long as the
comments do not disrupt the workforce,” J.A. 162, is ostensibly
more

aligned

with

the

case-by-case
13

analysis

of

Connick

and

 Pickering. But the milder language in a single provision does
not

salvage

the

unacceptable

overbreadth

of

the

social

networking policy taken as a whole. Indeed, the Public Concern
Provision does not purport to nullify or otherwise supersede the
blanket censorship endorsed by the Negative Comments Provision.
If

the

Department

wishes

to

pursue

a

narrower

social

media

policy, then it can craft a regulation that does not have the
chilling effects on speech that the Supreme Court deplored. We
cannot,

however,

allow

the

current

policy

to

survive

as

a

management and disciplinary mechanism.
B.
Plaintiffs next assert that the district court erred in
dismissing

their

challenges

to

the

Department’s

disciplinary

actions. We agree. In fact, the facial overbreadth of the social
networking policy is borne out by the disciplinary actions taken
pursuant to it.
When evaluating an ex post disciplinary action, rather than
an ex ante restraint on speech, the nature of our review is
narrower than

the

analysis

under

NTEU.

In

this

context,

our

court has adopted the traditional Connick/Pickering three-part
test

to

First

determine

Amendment

whether

challenge

a

public

to

an

employee

adverse

has

sustained

employment

a

action.

First, we determine whether the employee spoke as a citizen on a
matter

of

public

concern.

Second,
14

we

evaluate

whether

the

 employee’s interest in First Amendment expression outweighs the
employer’s interest in the efficient operation of the workplace.
And

finally,

we

decide

whether

the

protected

speech

was

a

substantial factor in the employer’s decision to take adverse
employment action. McVey, 157 F.3d at 277-78.
The

first

inquiry,

once

again,

is

whether

Liverman

and

Richards spoke on matters of public concern. “Speech involves a
matter of public concern when it involves an issue of social,
political,

or

of Elizabeth

other

interest

City, 388

F.3d

to

a

440,

community.” Kirby
446

(4th

Cir.

v.

City

2004).

In

resolving this question, the Supreme Court has directed courts
to

examine

the

“content,

form,

and

context

of

a

given

statement.” Connick, 461 U.S. at 147-48. Although defendants are
certainly correct that “personal complaints and grievances about
conditions of employment” are not matters of public concern,
Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they
misconstrue the thrust of Liverman’s and Richards’s comments.
The

form

and

context

of

the

comments

indicate

that

plaintiffs did in fact speak on an issue of public concern.
Regarding the form of speech, we find it significant that the
officers chose Facebook as the forum for their communication. As
our

colleague

Judge

Traxler

has

recognized,

Facebook

is

a

dynamic medium through which users can interact and share news
stories or opinions with members of their community. See Bland
15

 v.

Roberts,

730

F.3d

368,

385

(4th

Cir.

2013).

Similar

to

writing a letter to a local newspaper, see Pickering, 391 U.S.
at 569-70, publicly posting on social media suggests an intent
to

“communicate

to

the

public

or

to

advance

a

political

or

social point of view beyond the employment context,” Borough of
Duryea v. Guarnieri, 131 S. Ct. 2488, 2501 (2011). Further, the
officers’
referencing

Facebook

comments

rookie

cops

were

prompted

becoming

by

other

instructors.”

“posts

J.A.

398.

Accordingly, the context of the speech buttresses our conclusion
that

Liverman

grievances

and

but

Richards

rather

were

were

not

joining

an

simply

airing

ongoing

personal

public

debate

about the propriety of elevating inexperienced police officers
to supervisory roles.
The content of the Facebook comments further confirms that
they

dealt

with

issues

of

public

import.

Defendants

seek

to

carve up the Facebook colloquy and assert that Liverman’s and
Richards’s comments should be considered separately. Yet this
court

has

previously

rejected

attempts

to

“divide[]

[speech]

into discrete components to conduct a constitutional analysis on
each.” Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157
(4th Cir. 1992). Because we do not have “license to ignore the
portions” of the communication that touch on a matter of public
concern, we must view the statements “as a single expression of
speech to be considered in its entirety.” Campbell, 483 F.3d at
16

 267. This approach is consistent with the typical experience on
social

media,

where

users

engage

in

interactive

discussions

through a series of posts and comments. Liverman’s initial post
invited

others

responded,

to

and

Department’s

pick

they

up

began

promotion

on
a

his

observations;

public

policies.

Their

Richards

dialogue

about

the

comments,

therefore,

should be read in conjunction as part of a single conversation
on the qualifications of instructors and the increasing number
of rookies thrust into teaching roles.
Taken

together,

plaintiffs’

statements

stand

in

stark

contrast to the sort of “individualized concerns” this court has
characterized as personal grievances. See Brooks v. Arthur, 685
F.3d 367, 374 (4th Cir. 2012). Each veteran officer grounded his
statements

in

specialized

knowledge

and

expressed

a

general

“concern about the inability of the [Department] to carry out
its vital public mission effectively.” Cromer v. Brown, 88 F.3d
1315, 1325-26 (4th Cir. 1996). Liverman’s initial post cited an
FBI

study

that

underscored

the

danger

of

promoting

green

officers, and his subsequent comment noted the implications for
“officer

safety

and

questions

of

liability.”

J.A.

398-99.

Notwithstanding his more colloquial tone, Richards touched on
the same issues of public import in his responses. First, he
agreed

with

Liverman’s

observations

and

echoed

the

concerns

about “more and more younger Officers being promoted.” J.A. 399.
17

 Then he turned to the issue of skill development raised by the
FBI study and concluded that “LEO Supervisors should be promoted
by

experience”

and

the

“Agency

is

only

as

good

as

it’s

Leader(s).” J.A. 399-400.
Whether plaintiffs were correct or not in their views is
not

the

personal

issue.

The

import.

We

matter
thus

they

addressed

have

no

was

trouble

of

more

finding

than
that

plaintiffs’ Facebook comments, which addressed risks posed by
the

Department’s

inexperienced

supervisors,

raised

issues

of

public concern. See, e.g., Brooks, 685 F.3d at 375 (explaining
that when an employer’s practice “crosses a line to the point
that imperils the public welfare . . . then the public would
rightly be concerned about the matter”); Goldstein v. Chestnut
Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)
(holding that firefighter’s complaints about inadequate training
and unsafe procedures during emergency calls were matters of
public concern).
The

second

and

third

prongs

of

the

Connick/Pickering

inquiry are not in genuine dispute. Serious concerns regarding
officer training and supervision are weighty matters that must
be offset by an equally substantial workplace disruption. Chief
Dixon

failed

to

establish

a

reasonable

apprehension

that

plaintiffs’ social media comments would meaningfully impair the
efficiency of the workplace. See Maciariello, 973 F.2d at 300.
18

 Finally, defendants do not seriously dispute that plaintiffs’
Facebook comments were a substantial factor in the decision to
discipline them — indeed, both disciplinary action forms cited
violations of the Negative Comments Provision as the sole basis
for the oral reprimand and probation. J.A. 427-28.
In light of the First Amendment protection accorded to the
officers’ posts, we conclude that the discipline they received
pursuant to the social networking policy was unconstitutional.
C.
In the alternative, Dixon contends that the Department’s
decisions

to

adopt

the

social

networking

policy

and

take

disciplinary action pursuant to the Negative Comments Provision
are entitled to qualified immunity. The doctrine of qualified
immunity shields government officials “who commit constitutional
violations but who, in light of clearly established law, could
reasonably believe that their actions were lawful.” Henry v.
Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).
Having
Amendment

found

rights,

that
we

Dixon

must

violated

consider

the

whether

officers’
such

First

rights

were

“clearly established” at the time of the events at issue. “We do
not require a case directly on point” in order to conclude that
the law was clearly established, “but existing precedent must
have

placed

the

statutory

or

constitutional

question

debate.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2083 (2011).
19

beyond

 Dixon first argues that he acted reasonably in adopting the
social networking policy because the policy purported to track
the

subtle

officials

balancing

“are

not

calculus

liable

in

for

Pickering.

bad

guesses

We
in

agree
gray

that

areas,”

Maciariello, 973 F.2d at 298, and “do not expect [police chiefs]
to be judges and to have the training to sort through every
intricacy of case law.” Bland, 730 F.3d at 393. But this case
does not involve gray areas: the right against such a sweeping
prior restraint on speech was clearly established and then some.
Indeed, it is axiomatic that the government may not ban speech
on

the

ground

that

it

expresses

an

objecting

viewpoint.

See

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Accordingly,
there can be no doubt that prohibiting any “[n]egative comments
on the internal operations of the Bureau, or specific conduct of
supervisors or peers” — even comments of great public concern —
violates the First Amendment. J.A. 162.
Dixon

also

asserts

that

the

disciplinary

actions

taken

pursuant to the policy were reasonable in light of the vague
boundaries distinguishing public and private speech. Given the
patent

unconstitutionality

of

the

social

networking

policy,

however, efforts to enforce the policy are similarly suspect.
After

all,

legitimate

the
speech

core
and,

of
as

the

policy

detailed

was
above,

a

prohibition
we

have

on

little

difficulty locating the officers’ speech within this protected
20

 sphere.

Plaintiffs

Department’s

raised

training

serious

programs

concerns
and

the

regarding

the

promotion

of

inexperienced supervisors, both of which are matters of public
concern. As this court has held time and again, it was clearly
established

law

that

such

speech

is

protected

by

the

First

Amendment. See, e.g., Brooks, 685 F.3d at 375; Goldstein, 218
F.3d at 353.
We
ranks.

appreciate
See

the

need

Maciariello,

for

973

order

F.2d

at

and

discipline

in

300

(recognizing

the
that

“greater latitude is afforded to police department officials in
dealing

with

dissension”).

At

the

same

time,

we

cannot

countenance an arm of government with such enormous powers being
removed to this extent from public scrutiny. This is not an allor-nothing matter; there is a balance to be struck. But the
Department’s
actions

social

taken

to

networking

enforce

it,

policy,
lean

too

and

the

far

to

disciplinary
one

side.

We

therefore hold that Chief Dixon is not entitled to qualified
immunity.
III.
Finally,

plaintiffs

argue

that

Dixon

retaliated

against

them for filing their First Amendment suit. We agree with the
district court that their retaliation claims are without merit.
Plaintiffs

argue

that

the

retaliation

took

the

form

of

investigating their conduct on the force. We cannot conclude,
21

 however, that plaintiffs have raised an issue of triable fact
that the investigations were pretextual. See McVey, 157 F.3d at
277-78.

There

were

independent

bases

for

each

investigation.

Liverman was investigated twice. In notifying the City of his
First

Amendment

claims,

Liverman

requested

a

wide

range

of

personnel records. While searching for responsive documents, the
Department discovered that Liverman had sent sexually explicit
emails

to

a

investigation

female
for

officer.

sexual

The

Department

harassment,

during

launched

which

an

Liverman

admitted to engaging in sexual misconduct on Department property
and while on duty. Additionally, Liverman was investigated for
an incident in which he ignored Chief Dixon’s orders and failed
to maintain his duty post as directed.
Richards was also investigated twice. Both inquiries were
opened as a result of complaints initiated not by Chief Dixon
but by his fellow officers. The first complaint related to a
report

Richards

officer’s

spouse.

allegedly
The

made

Department

to

the

media

concluded

the

about

another

investigation

within one week, after Richards demonstrated his innocence. The
second

complaint

arose

from

his

involvement

with

the

Department’s Shop with a Cop program. Once again, the Department
determined that the allegations were unfounded.
Apart from generalized assertions regarding the existence
of the investigations, plaintiffs fail to offer any evidence
22

 that the investigations were retaliatory. Far from groundless
“fishing expeditions,” Appellants’ Br. at 34, each arose from
discrete
reason

allegations
to

of

question

misconduct.

the

Without

legitimacy

of

more,
the

we

see

no

Department’s

investigations. After all, simply filing a Pickering claim does
not confer indefinite immunity on employees or insulate them
from

subsequent

misconduct.

investigation

Granting

relief

and

on

discipline

plaintiffs’

for

unrelated

retaliation

claims

would handcuff the Department by forcing inaction even where
there is police behavior that warrants close review. Speech is
one

thing;

misconduct

something

else.

There

are

countless

unobjectionable reasons why a police department might want to
investigate
work,

an

tardiness,

officer’s

performance,

insubordination,

including

illegal

absence

activity,

and

from
basic

failure to carry out one’s duties in a competent and impartial
fashion. The garden-variety investigations into Liverman’s and
Richards’s conduct were no different, and we therefore reject
their claims of retaliation.
IV.
The City argues that Liverman and Richards have failed to
establish

municipal

liability.

The

district

court

agreed.

We

remand on this question to give the district court a chance to
assess under the appropriate standard municipal liability for
establishing the policy under which plaintiffs were disciplined.
23

 Under Section 1983, a local government may be held liable
for injuries suffered due to the “execution of a government’s
policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official
policy.”

Monell

v.

(1978).

Municipal

Dep’t

of

Soc.

liability

Servs.,

436

“attaches

U.S.

only

658,

where

694
the

decisionmaker possesses final authority to establish municipal
policy with respect to the action ordered.” Pembaur v. City of
Cincinnati,

475

U.S.

469,

481

(1986).

Whether

an

entity

possesses the requisite authority is a question of state law.
Id. at 483.
Here, the district court concluded that the City was not
liable with respect to any of plaintiffs’ claims. The court’s
holding rested on a city ordinance providing that the Chief of
Police “serve[s] at the pleasure of the city manager” and is
“under the direction and control of the city manager.” Liverman
v. City of Petersburg, 106 F. Supp. 3d 744, 769 (E.D. Va. 2015).
Because

Dixon

does

not

have

the

final

say

over

Department

matters, the court indicated, plaintiffs failed to show that
Chief Dixon “possesses the final authority required to establish
municipal liability.” Id.
This

analysis

misapprehends

the

nature

of

the

requisite

authority. We deal here not merely with an individual employment
decision, see Crowley v. Prince George’s Cty., 890 F.2d 683, 687
24

 (4th Cir. 1989), but a broad policy setting forth all the ground
rules for employee speech. An entity has “final” authority to
set this sort of policy when no further action is needed for the
policy to take effect. The Supreme Court has expressly noted
that

“[a]uthority

delegated

by

an

to

make

official

municipal
who

policy

possesses

.

such

.

.

may

be

authority”

to

another official. Pembaur, 475 U.S. at 483. Here the fact that
Dixon

serves

“under

the

direction

and

control

of

the

city

manager” does not necessarily establish that he lacked final
authority

to

promulgate

the

policy

whose

validity

has

been

successfully challenged herein. We must therefore remand to the
district court to undertake a more particularized inquiry into
whether Chief Dixon possessed final authority to set policies on
the parameters of speech on the part of those law enforcement
officers under his command. If so, the City may also be held
liable for the injuries that were caused by the applications of
that policy.
V.
Running

a

police

department

is

hard

work.

Its

mission

requires capable top-down leadership and a cohesion and esprit
on the part of the officers under the chief’s command. And yet
the

difficulty

of

the

task

and

the

need

for

appropriate

disciplinary measures to perform it still does not allow police
departments

to

wall

themselves
25

off

from

public

scrutiny

and

 debate. That is what happened here. The sensitivity of all the
well-known

issues

that

surround

every

police

department

make

such lack of transparency an unhealthy state of affairs. The
advent of social media does not provide cover for the airing of
purely personal grievances, but neither can it provide a pretext
for shutting off meaningful discussion of larger public issues
in this new public sphere.
To

recapitulate:

We

hold

that

the

Department’s

social

networking policy was unconstitutional and that the disciplinary
measures taken against plaintiffs pursuant to that policy were
likewise

impermissible.

The

patent

overbreadth

of

the

policy

negates Chief Dixon’s qualified immunity defense. We find no
merit,

however,

involved

in

plaintiffs’

investigations

independent

of

any

for

issues

of

retaliation
alleged

free

claims,

police

speech.

As

which

misconduct
to

municipal

liability, we remand for further proceedings in accordance with
the foregoing directions. Remedial issues are also best left for
remand,

although

in

light

of

all

that

has

transpired,

reinstatement is not an equitable option. The calculation of
attorneys’

fees

must

of

course

proceedings on remand.

26

await

the

conclusion

of

 The judgment of the district court is accordingly affirmed
in part, reversed in part, and remanded for further proceedings
consistent with this decision.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED

27