The First Amendment and Off-Duty Police Officer's Counterprotest of Anti-ICE Student Protest
The case of Mullen v. Giordano addresses the First Amendment rights of an off-duty police officer who counter-protested an anti-ICE student demonstration. The court found that Sgt. Mullen was engaged in protected speech as a private citizen, despite being a police officer. The ruling emphasizes the need for public employers to provide substantial justification for any adverse actions taken against employees based on their speech.
- ▪Sgt. Mullen attended a protest as a private citizen, not in uniform, and counter-protested an anti-ICE demonstration.
- ▪The Ninth Circuit established a five-step inquiry to assess whether a public employee's speech is protected under the First Amendment.
- ▪The court noted that the government must show substantial disruption to justify treating an employee differently based on their speech.
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| Original publisher | Reason Magazine |
| Canonical URL | https://reason.com/volokh/2026/05/26/the-first-amendment-and-off-duty-police-officers-counterprotest-of-anti-ice-student-protest/ |
| Publication time | Tue, 26 May 2026 12:01:23 +0000 |
| Retrieval time | 2026-05-26T12:07:48.662Z |
| Last seen | 2026-05-26T12:07:48.662Z |
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Opening excerpt (first ~120 words) tap to expand
Free Speech The First Amendment and Off-Duty Police Officer's Counterprotest of Anti-ICE Student Protest Eugene Volokh | 5.26.2026 8:01 AM Some excerpts from the long opinion in Mullen v. Giordano, decided Thursday by Judge Susan Brnovich (D. Ariz.): The Ninth Circuit has distilled Pickering v. Board of Education (1968) into a five-step inquiry to determine whether a government employer retaliated against a public employee in violation of the First Amendment: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee…
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