Kate Adams was an employee of the Sacramento Police Department. In 2013, she privately texted a co-worker to complain about racist messages circulating online, and she included these messages in her texts. Seven years later, the county investigated Adams and terminated her employment, apparently to avoid negative media attention linked to its internal inquiry.

Adams sued, arguing that the texts had nothing to do with her job and that punishing her for her speech violated the First Amendment. Although Adams’s termination was solely due to her private speech, a divided Ninth Circuit panel dismissed her First Amendment claims. The majority held that public employees are not protected from punishment unless their speech addresses matters of “public concern.”

Now Adams has asked the Supreme Court to take her case, and Cato has filed an amicus brief supporting her petition (with thanks to a team of attorneys from Skadden Arps who took the lead on drafting our brief). Our brief emphasizes that whenever the government restricts speech, the government carries the burden to justify its actions. But the Ninth Circuit’s decision turns this principle on its head, exempting the government from justifying its restrictions on private, off-duty speech. If upheld, this ruling would severely undermine First Amendment rights for over 23 million public-sector employees, providing the government unprecedented authority to regulate private discourse.

The Supreme Court has consistently held that the government must demonstrate a compelling interest to justify most speech restrictions. While public-sector employers can discipline employees for certain speech acts, they must demonstrate that such discipline promotes “the efficiency of the public services.” Only after identifying a concrete governmental interest harmed by the employee’s expression can courts balance that interest against the employee’s speech rights.

The Ninth Circuit erred significantly by converting this balancing requirement into a threshold demand that speech must be about a matter of “public concern” before it can receive First Amendment protections. Private or intimate speech, by nature, is not intended for public evaluation. Consequently, the Ninth Circuit’s ruling dangerously subjects the most private forms of expression to unrestricted oversight by government employers. First Amendment protections should be robust—not nonexistent—when the government targets an employee’s private expression.

Elevated protection for private speech aligns with both constitutional norms and American traditions. Historically, the First Amendment safeguards more than just political discourse. Additionally, state privacy laws reinforce the principle that there is a significant interest in communicating freely within personal relationships. Although the Ninth Circuit reasoned that non-public conversations do not impact “democratic self-governance,” the formation of personal opinions based on individual experiences is a fundamental republican value. Multiple federal appellate courts have recognized the importance of private expression, protecting speech similar to Adams’s from unjust governmental retaliation.

Currently, one-third of government employees fear reprisals for their personal beliefs. The Ninth Circuit’s ruling exacerbates this problem, further eroding confidence in constitutional freedoms. The Supreme Court should take the case, rectify the Ninth Circuit’s error, and hold that Adams’s private, off-duty speech is presumptively entitled to full First Amendment protection.