                              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          H.
HENDRICKS, United States District Judge for the District         of
South Carolina, sitting by designation.


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     facts      in    this     case      are      not   in     dispute.

Plaintiffs      Herbert      Liverman         and    Vance      Richards        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        “that       would    tend     to      discredit        or     reflect

unfavorably       upon     the      [Department]           or      any     other       City   of

                                               2
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     later,    however,        Chief     Dixon    altered   the

qualifications       for     promotion.         The     new   protocol        expressly

excluded any officers on probation from participating in the

promotion      process.     Accordingly,         when    Liverman       and    Richards

applied   for     open    sergeant    positions,        the   Department       notified

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



                                          5
       On     October    1,     2013,     the      two    officers         sent    a     letter

informing       the     City     that     they        intended       to     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    various       violations      of    the    First   Amendment.            The    two

officers      claimed    that     the   social        networking          policy    infringed

their    free       speech    rights    in    Counts       One    (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        claims,      the     court       concluded      that      the   subsequent

internal      investigations            were     not       retaliatory.        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       v.   Roe,     543    U.S.    77,    82    (2004)      (per    curiam).

Nonetheless,        a    citizen       who     accepts      public      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     begin       the    First      Amendment        inquiry     by    assessing

whether    the    speech       at   issue      relates     to     a    matter    of   public

concern. See Pickering, 391              U.S.       at   568.    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     this       backdrop,        we    turn   to    the    officers’      First

Amendment       challenges         to   the        Department’s       social     networking

policy    and    the    subsequent       disciplinary           actions   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.          Indeed,       the     particular      attributes      of

social    media       fit     comfortably         within       the     existing      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       Treasury        Employees          Union    (NTEU),       513    U.S.     454

(1995), the          Supreme        Court         addressed           how    courts       should

apply Pickering when                a    generally            applicable          statute     or

regulation         (as    opposed       to    a       post-hoc    disciplinary         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        question      in   this     case    is     whether       the

Department’s       policy      regulates      officers’    rights       to     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       the    competing      interests         on     either      side     of   the

Pickering/NTEU         balance,       we    begin       by    noting       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].”         J.A.     161.       In    particular,             the     Negative

Comments     Provision         proscribes          “[n]egative            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       all     its     potential            disruption       of       workplace

relationships         that    Connick       condemned.         But        social       networking

sites    like    Facebook      have     also    emerged         as    a    hub     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     of     ways,     including       whether        the    Department       is

enforcing       the    law    in   an      effective         and     diligent      manner,      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         Department’s           social       networking           policy

unmistakably        imposes          a     significant        burden         on   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         to     police           departments      because           they      are

“paramilitary       —   discipline           is    demanded,      and    freedom        must    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     some    potential        for    division       within      the    ranks,

particularly       given     the    broad      audience       on    Facebook.        But   the

speculative ills targeted by the social networking policy are

not     sufficient     to        justify      such    sweeping           restrictions       on

officers’    freedom        to    debate      matters       of   public       concern.     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 government-

employer interest to overcome it.”).

       Defendants’ fallback argument is that, even if the Negative

Comments    Provision        itself      is    overbroad,          the    Public      Concern

Provision     significantly          narrows         the     reach       of    the     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           analysis      of   Connick      and

                                              13
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    determine     whether      a    public      employee     has    sustained     a

First       Amendment     challenge      to       an    adverse      employment     action.

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

matter       of   public    concern.         Second,      we    evaluate     whether    the

                                              14
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    other   interest     to     a     community.” Kirby        v.    City

of Elizabeth         City, 388     F.3d    440,       446     (4th   Cir.     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’       Facebook     comments       were       prompted       by    other     “posts

referencing       rookie      cops        becoming       instructors.”         J.A.     398.

Accordingly, the context of the speech buttresses our conclusion

that    Liverman      and    Richards      were       not    simply    airing       personal

grievances      but     rather     were    joining      an    ongoing       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        to     pick    up   on     his         observations;        Richards

responded,       and     they      began     a     public          dialogue     about        the

Department’s          promotion     policies.           Their      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   issue.   The       matter   they    addressed        was   of     more   than

personal    import.       We     thus    have     no       trouble     finding       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        found     that     Dixon        violated   the    officers’      First

Amendment   rights,          we   must    consider        whether     such   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      beyond

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

                                                19
       Dixon first argues that he acted reasonably in adopting the

social networking policy because the policy purported to track

the    subtle       balancing          calculus          in    Pickering.       We     agree     that

officials      “are       not     liable       for       bad    guesses        in    gray    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,    the     core        of    the        policy     was    a    prohibition        on

legitimate         speech        and,    as     detailed          above,       we     have    little

difficulty locating the officers’ speech within this protected

                                                    20
sphere.     Plaintiffs          raised     serious              concerns       regarding          the

Department’s        training         programs              and      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   appreciate        the    need    for       order        and    discipline         in    the

ranks.    See   Maciariello,         973       F.2d        at    300     (recognizing            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 all-

or-nothing matter; there is a balance to be struck. But the

Department’s       social       networking          policy,       and     the     disciplinary

actions   taken     to    enforce        it,    lean       too     far    to    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    female      officer.      The    Department       launched      an

investigation       for    sexual    harassment,       during       which    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       allegedly    made     to    the    media    about    another

officer’s      spouse.     The   Department     concluded      the    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    allegations      of   misconduct.      Without       more,      we   see   no

reason     to    question     the     legitimacy         of     the      Department’s

investigations. After all, simply filing a Pickering claim does

not confer indefinite immunity on employees or insulate them

from     subsequent    investigation       and     discipline         for    unrelated

misconduct.      Granting   relief    on      plaintiffs’      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      an   officer’s     performance,     including         absence      from

work,    tardiness,    insubordination,         illegal       activity,      and   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.    Dep’t     of   Soc.    Servs.,      436     U.S.    658,    694

(1978).     Municipal        liability           “attaches      only         where      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            to    make       municipal         policy   .     .    .    may    be

delegated    by       an    official         who       possesses       such     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        off    from    public      scrutiny        and

                                                  25
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,     in       plaintiffs’          retaliation          claims,        which

involved      investigations            for         alleged       police           misconduct

independent    of     any    issues       of    free    speech.       As      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         await      the      conclusion       of

proceedings on remand.




                                           26
     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




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