Gary PISCOTTANO, Mark J. Vincenzo, Walter C. Scappini II, and James Right, Plaintiffs-Appellants, v. Brian MURPHY, Deputy Commissioner, Department of Correction, individually, and Theresa C. Lantz, Commissioner, Department of Correction, individually and in her official capacity, Defendants-Appellees, 511 F.3d 247

KEARSE, Circuit Judge: Plaintiffs Gary Piscottano, Mark J. Vin-cenzo, Walter C. Scappini II, and James Kight, who are current or former employees of the Connecticut Department of Correction (“DOC” or the “Department”), appeal from a judgment of the United States District Court for the District of Connecticut, Mark R.

Kravitz, Judge, dismissing their claims that the defendant DOC officials violated, inter alia, their First Amendment and due process rights to freedom of expressive association and freedom of intimate association by disciplining them on account of their membership in, and their association with members of, the Outlaws Motorcycle Club, pursuant to a Department regulation that plaintiffs contend is impermissibly vague. The district court granted

summary judgment dismissing those claims on the grounds that plaintiffs’ membership in the Outlaws Motorcycle Club did not constitute expressive association on matters of public concern, that membership in that organization is not an intimate relationship that warrants constitutional protection, and that the pertinent regulation is not unconstitutionally vague as applied to plaintiffs.

On appeal, plaintiffs contend principally that the district court erred (1) in finding the “public concern” test applicable to their expressive association claims and failing to find that a balancing of the parties’ respective interests favored plaintiffs; (2) in failing to find that defendants’ actions burdened plaintiffs’ intimate personal relationships; and (3) in failing to find the Department regulation void for vagueness as applied. For the reasons that follow, we reject all of plaintiffs’ contentions and affirm the judgment. I. BACKGROUND For purposes of defendants’ motion for

summary judgment, the following facts, many of which were the subject of testimony at a preliminary injunction hearing, see Piscottano v. Murphy, 317 F.Supp.2d 97 (D.Conn.2004) (“Piscottano I ”), were largely undisputed. Prior to April 2004, plaintiffs were employed by DOC as correctional officers in various prisons in the State of Connecticut (“State”). Piscottano had been so employed for approximately 18 years, Vincenzo for 18/6 years, Scappini for 9 years, and Right for 11$ years. In April 2004, following a hearing for each plaintiff pursuant to Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 538-41, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (“Loudermill hearing”), DOC terminated the employment of Piscottano and Kight, and ordered counseling for Vincenzo and Scappini, on account of their association with the Outlaws Motorcycle Club (or “OMC,” “Outlaws,” or “Club”). In November 2004, Vincenzo was discharged after a further Loudermill hearing. Defendant Theresa C. Lantz, with nearly three decades of experience in prison administration as, inter alia, correctional officer, counselor, training manager, warden, and deputy commissioner, became DOC’s Commissioner in March 2003.

Defendant Brian Murphy, who had two decades of experience as, inter alia, correctional officer, warden, director of prison security, and expert on gangs, became DOC’s Deputy Commissioner for Operations in April 2003. The disciplines imposed on plaintiffs were recommended by Murphy; the final decisions to impose those disciplines were made by Lantz. A.

Early Law-Enforcement Information Regarding the Outlaws Although the proceedings leading to the disciplining of plaintiffs had their immediate impetus in an anonymous letter received by DOC in July 2003 (see report of DOC’s Security Division dated September 18, 2003 (“DOC 2003 Report” or “DOC Report”), described in

Part I.B. below), local and federal law enforcement agencies had been investigating the Outlaws long before the receipt of that letter. 1. Information from the Federal Gov- . emment According to the National Drug Intelligence Center (“NDIC”), which is a unit of the United States Department of Justice, the Outlaws Motorcycle Club has been in existence since 1935 and has multiple chapters in the United States, Canada, Europe, and Australia.

An October 2002 report of NDIC (“NDIC Report”), received by DOC, contained descriptions of Outlaws activities and the results of investigations by the Bureau of Alcohol, Tobacco, and Firearms (“BATF”) and the Federal Bureau of Investigation (“FBI”). According to the NDIC Report, the OMC is involved in the unlawful production and distribution of methamphetamines and in the transportation and distribution of ecstasy, marijuana, and cocaine. Florida chapters obtain kilogram quantities of cocaine directly from Colombian drug trafficking organizations.

Other chapters obtain 100-pound quantities of marijuana from Mexico. As a result of BATF and FBI investigations, key officers and members of the Outlaws have been prosecuted for and convicted of various crimes; at the time of the NDIC Report, more than 100 Outlaws members were imprisoned in federal facilities. For example, a 1997 RICO prosecution in Wisconsin led to the conviction of 17 Outlaws members on charges involving bombings, robberies, and six murders during a span of five years.

A 2001 RICO trial in Florida revealed a decade-long campaign of terror, using murder, bombings, and other forms of intimidation to control the Club’s lucrative cocaine trade in Florida; that trial resulted in the conviction of the Outlaws international president, who was sentenced to two consecutive terms of life imprisonment. The NDIC Report stated that Outlaws members also engage in other criminal activities including assault, kidnaping, weapons and explosives violations, arson, theft of motorcycles and motorcycle parts, fraud, money laundering, and extortion.

The OMC is involved in the sale of stolen motorcycle parts and in the exploitation of female associates as prostitutes. It launders proceeds of its illegal activities through, inter alia, the sale of Club merchandise at sponsored events. The NDIC Report also stated that the Outlaws has a history of violent rivalry with the Hells Angels Motorcycle Club (“Hells Angels” or “HAMC”), involving incidents of bombing, arson, and murder.

Although the Hells Angels had viewed the northeastern United States as its own territory, the report noted that newly established Outlaws chapters in the United States includ[ed] 8 chapters in the HAMC-eon-trolled states of Connecticut, Massachusetts, New Hampshire and New York. This expansion as well as reports of stockpiling weapons and body armor in preparation for confrontations has heightened tensions between OMC and HAMC. The report noted that 23 heavily armed Outlaws members who were preparing for a fight with the Hells Angels had been arrested in Revere, Massachusetts, on February 23, 2002. 2.

Information from State and Local Police Forces In 2002, DOC became aware that the Outlaws had opened a

chapter in Waterbury, Connecticut. Officers of the Waterbury Police Department and the State Police conducted surveillance of an Outlaws “coming out” party in Waterbury in May 2002. The police investigation included checking the registrations of the motor vehicles parked at the Outlaws compound. Those inquiries revealed that two of the vehicles belonged to Right and Seappini; the address of their registrations was the Webster Correctional Institution (“Webster Cl”), the DOC facility at which Eight and Seappini were correctional officers. The police relayed this information to DOC.

Other police surveillances were conducted of Outlaws parties held on various dates in 2003, including May 24, July 17, and September 6. The police sent videotapes and still photographs to DOC’s Security Division (“Security Division” or “SD”), showing Piscottano, Vincenzo, Scappini, and Eight at one or more of those parties.

Murphy testified that he first became aware that certain correctional officers might be involved with the Outlaws in May 2003, when a reporter for a major Connecticut newspaper made a freedom-of-information inquiry of DOC. (See Preliminary Injunction Hearing Transcript (“Tr.”) at 222, 269.) The reporter requested information concerning DOC investigations, including those with respect to Piscottano, Vincenzo, and Eight. (See DOC 2003 Report at 2.) DOC received information about the Outlaws and its activities from State Police Trooper Richard Williams, who had long experience in investigating so-called “one-percent” motorcycle gangs — a term derived from an American Motorcycle Association official’s remark in the 1950s that 99 percent of all bikers were law-abiding, and thus “only” one percent of the motorcycles on the roads belonged to persons who were trouble-makers.

Williams informed DOC that the OMC is a self-proclaimed one-percent gang; that, like other one-percent motorcycle clubs, the Outlaws has distinctive patches that members wear on their clothing, including a “1%” patch; that these patches, known as “colors,” signify membership in the Club; that their colors are a source of pride and are not loaned out; that the colors must be returned if the member leaves the Club, unless he has been a member in good standing for more than a few years; that women cannot be members of the Club, but wives and girlfriends are allowed to wear “Property of the Outlaws” colors; and that these colors, too, must be returned if the member leaves the Club, unless he has been a member for a long period.

Williams testified that he had received information from law enforcement agencies around the country about illegal activities of the Outlaws. These included narcotics trafficking, prostitution, rape, and murder. DOC was informed by Williams and the Waterbury police of a drive-by shooting that took place on June 29, 2003. According to Williams, several shots were fired, including two into the door of a social club located in a building that also housed the Outlaws Motorcycle Club.

According to the police incident report, a witness stated that the shooter was a white male in his 30s; that after the shots were fired, members of the Outlaws came running out and inquired about the color of the car and the driver; and that when the witness told them the car was dark and the driver was a white male, the Outlaws appeared to know who the shooter had been. B.

The July 6, 2003 Anonymous Letter and DOC’s Investigation On July 6, 2003, a week after the June 29 drive-by shooting, Lantz received an anonymous letter stating, inter alia, that the Outlaws, described as arch rivals of the Hells Angels, had recently established a

chapter in Connecticut, and predicting that there would ensue an “all out gang war in the Waterbury area this summer and innocent people are going to get hurt because of them” (Anonymous Letter).

The letter stated that at least five DOC correctional officers were members of the Outlaws, including one named “Gary,” whose last name the author did not know, and another, whose name might be “Jim Eite,” who had threatened another with a gun in a road-rage incident. (Id.) The letter referred to “[tjhese men” as “1% outlaw motorcycle club members” who, while having their salaries and pensions funded by the citizenry, were “terrorizing” “the citizens ... in Waterbury and elsewhere in CL” (Id.) A DOC regulation prohibits DOC employees from, inter alia, “[e]ngag[ing] in conduct that constitutes, or gives rise to, the appearance of a conflict of interest,” and “[e]ngag[ing] in unprofessional or illegal behavior, both on and off duty, that could in any manner reflect negatively on the Department of Correction.” See DOC Administrative Directive 2.17, Employee Conduct (“Directive 2.17”).

Lantz forwarded the Anonymous Letter to Murphy and to SD, the DOC unit responsible for investigating questions of serious staff misconduct, for further review. On July 12, 2003, SD investigator Luis Irizarry conducted surveillance of a party at the Outlaws Waterbury clubhouse. He observed Piscottano, Vincenzo, and Eight at that event. In August 2003, Lantz ordered a formal investigation into the Anonymous Letter’s allegations. 1. DOC’s September 2008 Interviews of Plaintiffs In September 2003, the Security Division conducted interviews of Piscottano, Eight, Vincenzo, and Scappini.

Piscottano and Eight stated that they had been members of the Outlaws for a time but had resigned; Vincenzo and Scappini denied ever having been members of the Outlaws. All stated that they had attended Outlaws functions even as non-members. The ensuing DOC report included the following descriptions of the interviews. Piscottano stated that he had been a member of the Outlaws, initially probationary and then full-fledged, for a total of about a year; he resigned his membership in the Outlaws in the spring of 2003. He stated that he had attended a number of Outlaws functions during the summer of 2003.

Piscottano stated that he knew that Randy Sabettini (a correctional officer who was also originally a plaintiff in this action) had at one time been a member of the Outlaws, but did not know of any other correctional officers who were members.

Piscottano stated that he “d[id] not know that the Outlaws [wejre involved in any criminal activity,” and said, “if they were I wouldn’t be there.” Further, taken in the light most favorable to Piscottano, the record indicates that he had been informed by Sabettini prior to September 2003 that Sabettini had inquired of, and received assurances from, DOC supervising officials that an officer’s association with the Outlaws would not pose a problem so long as the officer himself was not involved in criminal activity.

Eight, in his interview, stated that after a six-month probationary period, he had become a full member of the Outlaws in September 2002. He took a leave of absence in June 2003, and he officially resigned in July 2003 and turned in his colors. He stated that he had attended some Outlaws functions after resigning from the Club, most recently in the week before his interview. He knew that Pis-cottano had been a member of the Outlaws. Eight said he was “not aware of any illegal activity by any of the members of the club ....

There may be criminal activity in other states but none in Connecticut as far as [he] kn[e]w.” He also stated that he was aware that one Danny Hall, an Outlaws member he had known for 25 years, had been incarcerated on several occasions at the Webster Cl where Eight was a correctional officer. Eight said of Hall, “[h]e never asked me to do any favors or anything illegal for him while I performed my job.” Vincenzo, who said he had never been a member of the Outlaws, stated that he did associate with some members of the Club and had attended OMC functions in Waterbury and in Brockton, Massachusetts.

He had no knowledge of any illegal activity of the Outlaws and did not know any members of the Outlaws who had previously been incarcerated. Vincenzo acknowledged that, in a videotaped surveillance of the Outlaws party in Waterbury on July 12, 2003, he was seen wearing an Outlaws Support T-shirt. Vincenzo stated that he had “heard that there might be some type of issue with guys that ride in motorcycle clubs,” and he had sought official advice as to whether affiliation with the Outlaws would threaten his employment with DOC.

He stated that, while attending a retirement party in the summer of 2003, he had asked a DOC captain to make inquiry of DOC’s director of security. Vincenzo said he was told that the director believed there would be no problem if Vincenzo himself was not committing a crime. Vincenzo stated that he received essentially the same advice from a local chief of police. Scappini, who stated that he had never been a member or a prospect of the Outlaws or associated with the Club, stated that he had attended parties and functions with the Outlaws.

He had seen Eight, with whom he worked at the Webster Cl, at some of the Outlaws functions. Scappi-ni stated that he was “not aware of’ and had not “seen any illegal activity by any member of the Outlaws Motorcycle Club.” He said, however, that he had recognized Danny Hall at Outlaws functions and was aware that Hall had been an inmate at the Webster CL Scappini stated that Hall “never asked me to do anything illegal while he was incarcerated.” 2.

The DOC 2003 Report Following these interviews and the gathering of additional information from federal, State, and local law enforcement agencies, the Security Division sent Lantz the DOC 2003 Report. The report recounted, inter alia, law enforcement experiences with the Outlaws, from both federal and local perspectives, as summarized in Parts I.A.1. and I.A.2. above, including the NDIC Report’s description of the Outlaws’ drug trafficking, violence, and other criminal activity.

The DOC Report also summarized the NDIC Report’s description of the Outlaws membership requirements, in part, as follows: Outlaws members must be male, at least 21 years old and own an[ ] American-made motorcycle with at least a 1,000 cc engine. To be accepted as a member, an individual must begin as an associate or “hangaround” and must perform some service for the chapter. If

chapter officers determine that the hangaround has membership potential, he becomes a “prospect”, and when he is deemed ready for formal consideration, he become[s] a “probate”. ' For a period of at least 6 months, the probate officially is evaluated for membership and may be asked to perform some illegal activity to prove his loyalty. To obtain full membership the probate must attend one national event and receive the unanimous vote of the chapter. ... A member in good standing can leave the club or change chapters at any time after 1 year.

However, a member must have at least 10 years with the club before he is permitted to keep OMC emblems and Patches. ... Members wear black leather jackets. The club patches, known as colors, are placed on the front and back of the jackets. Outlaws patches are usually black and white lettering. The skull and crossed pistons logo is outline[d] in red and worn on the back of the jacket.

OMC members maintain that the skull’s glaring red eyes protect the wearer and “watch out for trouble from behind.” Above the logo is a top rocker patch with the name Outlaws, below the logo is a bottom rocker that designates the chapter’s location. A triangular patch is worn on the left front shoulder with the letters AOA standing for American Outlaws Association surrounding a hand with the middle finger extended. ... On the other shoulder is worn a triangular 1 % patch.

The 1 % refers to a statement made by the former president of the American Motorcycle Association that 99 percent of the motorcycling public are honest, law abiding citizens and that only 1 percent are trouble makers. A patch with the letters GFOD, standing for the Outlaws’ motto “God Forgives, Outlaws Don’t” also is worn on the front of the jacket. Associates and prospects wear only front patches to identify their status. Probates wear upper Probationary and lower Outlaws rocker patches on their backs.

Female associates wear the traditional OMC back patch with “Property of’ on the top rocker and the name of the owner on the bottom rocker.... Colors are held in the highest esteem. A member who loses his colors is fined $500 and demoted to probate status. (DOC 2003 Report at 4 (emphases added).) The DOC 2003 Report summarized SD’s September 2003 interviews of plaintiffs, see

Part I.B.1. above, and stated that there were discrepancies between some of the interview statements and the facts found in DOC’s investigation.

In particular, the statements by Piscottano and Eight that they had “gotten out [of the Outlaws] early in 2003” were questioned, given that during the period after they said they had withdrawn, Piscottano and Eight were “positively identified and admitted to being in attendance during one or several of the functions that were sponsored by the Outlaws Motorcycle Club.” (DOC 2003 Report at 14.) Eight, during that period, was observed wearing Outlaws colors despite having resigned after being a member for less than a year and despite the Outlaws bylaw forbidding post-resignation retention of colors except by those who have been members for at least 10 years.

One such observation was made by Irizarry, who conducted surveillances of the Outlaws and was the author of the DOC 2003 Report: On September 5, 2003 while out with friends at Carmine’s Café in Waterbury, Major Irizarry observed several individuals on motorcycles arrive outside of the Café. All of the individuals we[re] wearing leather jackets or vest[s] identifying them with the Outlaws Motorcycle Club. Major Irizarry positively identified Officer James Right as one of the individuals that was with the group.

Officer Right was observed wearing a leather jacket with the Outlaws rocker on the back. (Id. at 13 (emphasis added); see also id. at 15 (“Eight stated during his interview that he was riding with members of the Outlaws on the evening of September 5, 2003, but was not wearing any colors, since he was no longer a member.

But I clearly observed him wearing his colors upon arriving and parking in front of the Café.”).) The DOC Report also stated that during one or more of the Outlaws events at which Piscottano, Eight, Vincenzo, and Scappini were seen, several known felons were also observed. (See id. at 14.) At a May 2003 Outlaws event, several of the “known felons ... were wearing full patched Outlaw jackets.” (Id. at 12.) Attending a later Outlaws event was a felon who had just been released from prison in July 2003. (See id. at 14; see also id. at 11 (Hall, whom Eight described as having been incarcerated on several occasions at the prison to which Eight was assigned, had been released in July 2003).) The report stated that it was a matter of “clear concern” that correctional staff [are] associating with known felons and other members of this organization.

The information in this report identifying the criminal involvement, producing and distributing of methampheta[m]ine and other narcotics indicates that the Outlaws Motorcycle Club are [sic] becoming a great threat to the general public and law enforcement agencies. (Id. at 15.) The report found that by associating with the Outlaws, the correctional officers in question had, inter alia, (1) “jeopardize^ the security of the unit, health, safety, or welfare of the public, staff or inmates,” (2) “[e]ngage[d] in conduct that constitutes, or gives rise to, the appearance of a conflict of interest,” and (3) “[e]ngage[d] in unprofessional ... behavior ... that could ... reflect negatively on the Department of Correction.” (Id. at 15-18.) The report concluded that the officers were therefore “in clear violation” of Directive 2.17. (Id. at 15.) The DOC 2003 Report also noted that Directive 2.17 requires employees to “[c]o-operate fully and truthfully in any inquiry oi’ investigation conducted by the Department of Correction and any other law enforcement or regulatory agency.” (Id.) The DOC Report concluded, inter alia, that “[i]t has been determined that ...

Piscottano[ ] and Eight were not truthful during the investigation, since they ... claim to have gotten out of the Outlaws early in 2003, but continue to attend functions hosted by the Outlaws.” (Id.) C.

The Individual Proceedings and the Imposition of Discipline In late 2003, Lantz ordered that separate proceedings be initiated against Pis-cottano, Eight, Vincenzo, and Scappini, as well as Sabettini; that each officer be placed on paid administrative leave pending conclusion of his proceeding; and that each be given a copy of the DOC 2003 Report and be afforded an opportunity at a Loudermill hearing to present any mitigating evidence and to dispute the allegations of the DOC Report.

Loudermill hearings were conducted and were followed by Security Division investigations into the evidence presented by the officers at those hearings and into each officer’s activities with the Outlaws subsequent to his SD interview in September 2003. In February 2004, an individual report (“SD 2004 Report”) was prepared with respect to each of the plaintiffs.

Each report reiterated the historical perspective of the Outlaws set out in the DOC 2003 Report and noted that [t]hough the OMC has only beg[u]n to become established in New England within the past 5 years, law enforcement sources have stated that there have already been arrests and violent altercations between the OMC and [the Hells Angels].

Though there are several ongoing investigations concerning the OMC in New England, law enforcement sources were unable to provide specifics [so] as to not jeopardize the integrity of their cases. (E.g., SD 2004 Report on Piscottano at 3-4.) Each report added the observation that [a]s with other chapters of the OMC, law enforcement sources expect the newly founded New England chapters to follow suit with the criminal activity of older established chapters, which has been made apparent by information received from current on-going investigations (e.g., id. at 6), citing as “[a]n example of the criminal progression of the newly formed New England chapters” the February 2002 arrests of 23 heavily armed Outlaws members who were preparing for a fight with the Hells Angels in Revere, Massachusetts (e.g., id.).

Each report proceeded to describe the officer’s Loudermill hearing statements and the evidence turned up in SD’s followup investigation.

As described below, although the September 2003 interviews and the DOC 2003 Report, which had been given to the plaintiffs, had put all of them on notice that the Outlaws was considered by federal, State, and local law enforcement agencies to be engaged in criminal activity, and that DOC was concerned about plaintiffs’ association with the Outlaws, the individual reports found that Eight and Piscottano had continued to wear Outlaws colors and to involve themselves in Outlaws-related activities. 1.

Right At his Loudermill hearing, Eight took the position, inter alia, that he had not (as described in the DOC 2003 Report at 13) been wearing an Outlaws rocker patch on his jacket at Carmine’s Café on September 5, 2003, and he stated that there had been another DOC correctional officer at that café at the time who would so testify. In the Security Division’s post-Loudermill-hearing interview, Eight identified his witness as Lawrence Andrews, a correctional officer at the Webster Cl where Eight was assigned. SD then interviewed Andrews.

Andrews said he had been present in Carmine’s Café on one occasion when Eight and a woman came into the café, and that Eight had not been wearing Outlaws colors. However, Andrews could not remember the date of that occasion and could not say that it was September 5. (See SD 2004 Report on Eight at 6.) On the occasion he recalled, Eight and the woman had come in alone (see id.); Eight, however, in his September 2003 interview, had stated that he was with members of the Outlaws on the evening of September 5 (see DOC 2003 Report at 15).

The 2004 report noted that SD investigator Irizarry himself had observed Eight arrive at that café on September 5, with several other individuals wearing Outlaws colors, and had observed Eight wearing a black leather jacket with the Outlaws rocker on the back. (See SD 2004 Report on Eight at 6-7.) The report also noted that although Eight stated he had resigned from the Outlaws in July, he has admitted wearing colors during an OMC Christmas Party on December 20, 2003. When asked if the colors were his, Officer Eight stated that the colors were brought down for him to wear out of respect by members of the OMC.

Officer Eight admitted wearing an OMC insignia belt while at the Christmas Party. (Id. at 7.) The report on Eight also stated that SD had learned that Eight and Piscottano were involved in a physical altercation at Chaser’s Café in Bristol, Connecticut, on October 25, 2003. An employee of that café informed investigators that Eight was injured when a member of the Crossroads Motorcycle Club hit Eight in the face with a beer mug, and that gunshots were fired. Eight was dragged out of the café by one of the Outlaws members.

The café employee stated that Eight and Piscottano, as well as certain other full-patch members of the Outlaws whom the employee identified by name, were all wearing Outlaws colors. After the fight, Eight was hospitalized and underwent surgery for the injuries to his face (a broken jaw and a broken nose, according to Eight’s testimony at the preliminary injunction hearing).

Eight admitted that he had been at Chaser’s Café on the night of October 25 and had been knocked unconscious; but he said he had no idea who struck him, and he maintained that his injuries were in fact caused by his slipping and falling in his bathtub while taking a shower. (See SD 2004 Report on Eight at 7-9.) According to the State Police, Eight’s “injuries were inconsistent with a fall and were consistent with someone involved in a physical altercation.” (Id. at 7.) The SD report found, inter alia, that although Eight contended that he had not engaged in conduct that would be considered a conflict of interest, he continues to associate himself with members of the OMC by attending functions such as the Christmas Party on December 10 [sic], 2003[, e]ven after being placed on Administrative Leave by the DoC for his association with a known criminal entity, which is currently being investigated by State and local law enforcement for criminal/illegal activities. (SD 2004 Report on Eight at 9.) The report concluded that Eight had violated Directive 2.17 by, inter alia, engaging in unprofessional behavior that could reflect negatively on DOC and give rise to the appearance of a conflict of interest, and by failing to cooperate fully and giving false testimony in the DOC investigation. (See id. at 10.) 2.

Piscottano The Security Division report on Piscot-tano stated that SD had conducted a post-Loudermill-hearing interview of Piscotta-no, seeking clarification of his proffered mitigation, but that Piscottano failed to provide detailed information in response to most of SD’s questions.

He said he had no knowledge about the Outlaws national organization and no recollection of the specific period when he was an Outlaws member or when he attended Outlaws functions. (See SD 2004 Report on Piscottano at 6 (“Piscottano failed to provide this office with specific time frames concerning his membership and/or attendance at OMC functions, stating that he was unsure, couldn’t recall or would have to guess.”).) The report noted that Piscottano placed his resignation from the Outlaws in the spring of 2003, but that he stated that he still attended OMC functions including parties at the Waterbury OMC clubhouse and Lobsterfest in Brockton, Massachusetts (party sponsored by the Brockton OMC).

Officer Piscottano also stated that most recently he attended a Christmas party at the Waterbury OMC clubhouse on December 20, 2003 (the party followed Officer Piscottano’s Loudermill and being advised that his involvement with the organization may result in his dismissal from state service). (Id.) SD had learned of Piscottano’s presence at the Outlaws Christmas party because he had been seen there by members of the State Police who were serving a search warrant at the Outlaws clubhouse (although they had “extreme difficulty entering the building, as the interior walls of the clubhouse were covered with sheet metal and the door was steel reinforced”), seeking illegal weapons believed to be in the possession of a known Outlaws member who was attending the event. (Id.) In his SD interview, Piscottano was critical of the police, stating “I couldn’t believe they were doing this at a Christmas party.” (Transcript of December 22, 2003 SD Interview of Piscottano, at 12.) Piscottano was also questioned about the October 25, 2003 incident at Chaser’s Café at which Eight was injured (see

Part I.C.l. above). Piscottano denied being at that café on that date; said he was unsure whether he had ever been there; and said he did not know, offhand, where it was located.

The report stated, however, that the café “employee was shown several pictures of OMC members and clearly identified Officer Piscottano and Officer Eight as being involved in the altercation while wearing their OMC colors.” (SD 2004 Report on Piscottano at 7.) The report noted that Eight had been admitted to Waterbury Hospital on the night of October 25 with severe facial injuries that required surgery and that Piscot-tano admitted having visited Eight in the hospital.

However, despite that visit, Pis-cottano stated that he did not know what had precipitated Eight’s admittance to the hospital, “nor did he inquire.” (Id.) The SD report found that [u]pon review of Officer Piseottano’s Loudermill reply and questioning to clarify his alleged mitigation, this office has concluded that Officer Piscottano continues to be actively involved with the Outlaw Motorcycle Club and was less than truthful in regards to his membership.

Though Officer Piscottano alleged that he is no longer a member of the OMC, this office has not been presented with any mitigating evidence that would support this claim.... This office has also determined that Officer Piscottano was less than truthful in regards to the incident at Chaser’s Café on October 25, 2003, where Officer Eight was struck in the face and knocked unconscious by members of the Crossroads Motorcycle Club and James Gang (motorcycle club).

Officer Piscot-tano was identified (via photograph) by an employee of the café as being present during the melee, though he stated that he was not. (Id. at 7.) The report also found it less than credible that Piscottano would visit Eight in the hospital following the surgery on Eight’s nose and jaw, and neither know nor ask what had happened. (See id. at 7-8.) The SD report concluded that although members of the Waterbury

chapter of the Outlaws had not been charged with felonious activity, it “is currently under investigation by several Federal, State and local law enforcement entities for just such activity,” and that “[i]t should be noted that Officer Piscottano continues to attend OMC events and socialize with the organization’s members, even after being advised that the agency was investigating his involvement with the organization.” (SD 2004 Report on Piscottano at 8.) The report concluded that Piscottano had violated Directive 2.17 by engaging in unprofessional behavior that could reflect negatively on DOC and give rise to the appearance of a conflict of interest, as well as by failing to cooperate fully in the DOC investigation and giving false testimony. (See id.) 3.

Vincenzo The 'post-Loudermill-hearmg report on Vincenzo described an interview in which Vincenzo reiterated the statements he had made during his September 2003 interview that, inter alia, he had inquired of a DOC captain and, indirectly, the DOC director of security as to the propriety of riding with motorcycle clubs and had been informed that it was not inappropriate so long as he was not committing any crimes.

SD investigators spoke with the DOC captain of whom Vincenzo had inquired and with the security director; both essentially substantiated Vincenzo’s account. (See SD 2004 Report on Vincenzo at 7-8.) Vincenzo also stated that if any DOC official had informed him that it was inappropriate to ride around with felons and had pointed out individuals who were felons, he “would have been gone.” (Id. at 7.) Vincenzo stated that although he had attended Outlaws events in the past, he had not done so since September 2003.

The report indicated that SD had received no information indicating Vincenzo’s presence at any Outlaws event since that time. (See id. at 8.) The report concluded that Vincenzo’s prior association with the Outlaws constituted unprofessional behavior that could reflect negatively on DOC and give rise to the appearance of a conflict of interest. (See id. at 8-9.) 4.

Scappini In SD’s post-Loudermitt-hescñng interview of Scappini, Scappini essentially repeated the statements he had made in his SD interview in September 2003, i.e., that he had never been an associate, prospect, or member of the Outlaws, although he had attended several Outlaws outings in prior years. (See SD 2004 Report on Scappini at 7.) The report stated that SD had received no information indicating Scappini’s presence at any Outlaws event after May 24, 2003. (See id.) The report concluded that Scappini’s prior association with the Outlaws constituted unprofessional behavior that could reflect negatively on DOC and give rise to the appearance of a conflict of interest. (See id. at 7-8.) 5.

The April 2004, Dismissals and Counseling Letters Murphy, as deputy commissioner in charge of operations, reviewed the SD reports on the individual officers and gave Lantz his view that it was inadvisable to employ correctional officers who were affiliated with the Outlaws. (See Memorandum from Murphy to Lantz dated March 23, 2004 (“Murphy Mem.”).) Murphy testified that after receiving the NDIC Report, he had sought and received corroborating information from the State Police, from law enforcement agencies in Massachusetts and New Hampshire, and from federal agencies including the BATF and the United States Drug Enforcement Administration. (See Tr. 231-32.) And “the more information [he] got, the more [he] became concerned.” (Id. at 236.) DOC was aware of at least two members of the Outlaws incarcerated in DOC prisons and of members of the Hells Angels and other motorcycle clubs incarcerated at several DOC prisons.

Murphy testified that DOC had experienced gang-rivalry incidents of inmate violence in the past between members of gangs other than the Outlaws and the Hells Angels, including one incident in which an inmate was beaten to death with a putter and another in which an inmate was firebombed to death. (See Tr. 235, 258.) Although there had been no incidents in DOC-run prisons involving the Outlaws, and the Outlaws was not on DOC’s own list of organizations that were known to pose security risks (see id. at 259-60, 276-77), DOC had been informed by the Federal Bureau of Prisons that the Outlaws Motorcycle Club is listed as a safety threat group within the federal prison system (see, e.g., id. at 293).

In his memorandum to Lantz, Murphy noted that the historical involvement of the OMC “around the country” in “illegal, illicit, violent, and dangerous activities” was “substantiated” (Murphy Mem. at 1), and that law enforcement surveillance of the Connecticut

chapter of the Outlaws had made it “clearly evident that the OMC membership involves several convicted felons” (id. at 2).

Murphy also noted that “gang affiliation and loyalties to the gang do not cease with incarceration” and that a correctional officer affiliated with the Outlaws, supervising inmates belonging to a different gang, “could be subjected to criticism by inmate rival gang members, alleging inappropriate treatment based on rival status of the gangs.” (Id.) Such an officer could also be subjected to “retaliation by inmates.” (Id.) For example, a State Police (“CSP”) task force member had reported on his recent conversation with a leader of the Hells Angels in which the Hells Angels leader notified the CSP member of “cops” being with the Outlaws; referring to the correctional officers.

The Hells Angels leader spoke of the feud with OMC, and warned that the officers were in jeopardy due to their membership with OMC. (Id.) Murphy concluded that the association of DOC correctional officers with the Outlaws “severely jeopardizes the security of the [prison] facilities and protection of the public” and “could also severely impact the integrity of the agency and its security.” (Id. at 2-3.) Murphy concluded that [t]he staff members who do not appear to be members [of the Outlaws] should be warned that continued involvement with this gang may result in termination from state service.

Those positively identified as members should be dismissed from state service. (Id. at 3.) Lantz agreed with Murphy’s assessments and concerns. (See generally Tr. 326-27.) At the preliminary injunction hearing, she testified that DOC works closely with other law enforcement agencies and has staff members participate in task forces on gang activity. (See id. at 310.) Lantz testified that the concerns for possible conflicts of interest, coupled with the findings that Piscottano and Eight had been untruthful in their interviews with SD investigators, led her to believe that there “was a breach of integrity, certainly unprofessional,” that “negatively reflected on the agency.” (Id. at 327.) Asked to explain why she believed Department operations could be negatively affected by a correctional officer’s untruthfulness, Lantz stated, we have a finding of untruthfulness and if no action is taken and they’re allowed to go back to work or allowed to carry out their duties, anything else they might do in the 'performance of their duties could make the agency quite vulnerable by the fact that the agency has already found them untruthful. (Id. at 332 (emphasis added).) Lantz followed Murphy’s recommendations.

In April 2004, Eight and Piscottano were informed, by the wardens of the prisons to which they were respectively assigned, that they were being dismissed, effective May 6, 2004, for violating Directive 2.17. The letter to Eight stated, in pertinent part, as follows: This letter serves to inform you that you are being dismissed from State Service for just cause as evidenced by your violation of Administrative Directive 2.17.

Specifically, based upon a Security Division investigation into your conduct, it was determined that you were less than truthful when questioned about your association with the Outlaw[s] Motorcycle Club. Your failure to be truthful jeopardizes the safety and security of yourself, your co-workers and the inmates, which cannot be tolerated or condoned. (Letter from Warden James E. Dzurenda to Eight dated April 22, 2004.) Piscotta-no’s termination letter was essentially the same. (See Letter from Warden Wayne T.

Choinski to Piscottano dated April 21, 2004.) Vincenzo and Scappini were not dismissed; they were issued “Formal Counseling” letters for engaging in unprofessional conduct in violation of Directive 2.17. Each letter stated that “a Security Division investigation substantiated that you engaged in activities that negatively reflected on the Department of Correction.” {E.g., Letter from Warden James E.

Dzurenda to Scappini dated April 22, 2004.) The counseling letters stated that “[t]his type of conduct will not be tolerated,” and that “[a]ny recurrence of this behavior will result in more severe disciplinary action being taken against you up to and including dismissal.” {E.g., id.) 6. The November 2004.

Discharge of Vincenzo In July 2004, Lantz received a letter from the president of the prison employees’ union asking whether Vincenzo would violate any Department regulation if he attended a fund-raising event to be cosponsored by the Outlaws at the American Veterans (“AmVets”) hall in Enfield, Connecticut, from noon to 6 p.m. on July 11, 2004. Lantz responded that if Vincenzo attended the event, he would be violating Directive 2.17. Vincenzo received a copy of Lantz’s response prior to the July 11 event.

Lantz thereafter received information that Vincenzo had proceeded to attend the July 11 Outlaws event; she instructed SD to investigate. SD obtained and reviewed videotapes that had been made during surveillance of the event by the Enfield Police Department.

In a memorandum dated August 13, 2004 (“SD August 2004 Report on Vincenzo”), SD reported that on the police surveillance tape covering the segment of the afternoon of July 11 from 1:53 p.m. to 4 p.m., Vincenzo was seen arriving at the AmVets hall at approximately 3:43 p.m. {See SD August 2004 Report on Vin-cenzo at 2.) He parked. his motorcycle, greeted and hugged members of the Outlaws, and remained in the company of Outlaws members until those attending the party departed at approximately 6:10 p.m. “Vincenzo [wa]s seen riding away with the Outlaws members,” and “at th[at] time he [wa]s observed wearing a black short sleeve tee-shirt which appeared to be a ‘Support’ (Outlaws MC) tee-shirt.” {Id.) After reviewing the videotape, SD interviewed Vincenzo.

Although Vincenzo maintained that he did not “attend” the event (Transcript of July 26, 2004 SD Interview of Vincenzo, at third unnumbered page), he concededly went to the AmVets hall on July 11, 2004, before the 6 p.m. scheduled conclusion of the event {see id. at second unnumbered page (“I don’t even know what time I went down there.... I think I went down there about five, five thirty somewhere around there.”)).

Vin-cenzo acknowledged that upon his arrival he hugged and shook hands with members of the Club, that while there he consumed a few beers with Outlaws members {see id. at second-third unnumbered pages), and that before he left he donned an Outlaws “support shirt” that had been brought to him {id. at fourth unnumbered page). Lantz ordered that Vincenzo be given a new Loudermill hearing to determine whether his conduct on July 11, 2004, warranted discharge or other discipline. Following the new Loudermill hearing, Lantz determined that Vincenzo should be dismissed for violating Directive 2.17.

He was discharged on November 19, 2004. D. The Present Action and the Decision of the District Court Immediately following the April 2004 dismissals of Piscottano and Eight and the counseling letters to Vincenzo and Scappi-ni, those four officers, along with Sabettini who also had been discharged, commenced the present suit under 42 U.S.C. § 1983 against Lantz, Murphy, and the wardens who had signed the discharge and counseling letters, asserting claims that those actions violated, inter alia, plaintiffs’ First Amendment rights.

Plaintiffs moved, unsuccessfully, for a preliminary injunction requiring rescission of the disciplinary actions. See Piscottano I, 317 F.Supp.2d at 99-102. Following the denial of the preliminary injunction motion, several amended complaints were filed, which, inter alia, omitted Sabettini as a plaintiff and omitted the wardens as defendants.

To the extent pertinent to this appeal, the third (final) amended complaint (“Complaint”), served in November 2004, alleged that Directive 2.17, in “prohibiting] ... [e]n-gage[ment] in unprofessional ... behavior, both on and off duty, that could in any manner reflect negatively on the Department,” is “unconstitutional as applied in this case, in that it violates the First Amendment because it is ... void for vagueness” (Complaint ¶¶ 26, 27), and that defendants’ imposition of discipline on plaintiffs (including the then-recent discharge of Vincenzo for his July 11, 2004 violation of Directive 2.17) violated their rights to freedom of association (see id. ¶¶ 25, 28).

Following a period of discovery, both sides moved for

summary judgment. Defendants sought

summary dismissal of the First Amendment claims, arguing principally (1) that plaintiffs’ association with the Outlaws did not constitute speech on a matter of public concern, as required by Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and (2) that plaintiffs’ interest in associating with the Outlaws is, in any event, outweighed by the State’s interest in, inter alia, maintaining safe prison facilities, and hence is not protected by the First Amendment. They argued that Directive 2.17 is not unduly vague as applied to plaintiffs’ association with the Outlaws.' Plaintiffs opposed defendants’ motion, arguing principally (

a) that the Connick public-concern requirement should not be applied to claims of freedom of association or to an employee’s off-duty speech that does not relate to his employment, and (

b) that Directive 2.17 is impermissibly vague as applied to plaintiffs because it has no objective content setting forth standards or giving fair notice as to what conduct is proscribed. Plaintiffs also cross-moved for

summary judgment in their favor. In addition to the arguments made in opposition to defendants’ motion for

summary judgment, plaintiffs argued that they were entitled to judgment on the void-for-vagueness claim because they had no reason to believe that the Connecticut

chapter of the Outlaws was involved in any criminal activity and they had been led to believe by their superiors at DOC that so long as plaintiffs themselves were not involved in criminal activity, DOC did not disapprove of their association with the Outlaws. In a Memorandum of Decision dated June 9, 2005, see Piscottano v. Murphy, No. 3:04CV682, 2005 WL 1424394 (D.Conn. June 9, 2005) (“Piscottano II ”), the district court granted defendants’ motion for

summary judgment dismissing the Complaint and denied plaintiffs’ cross-motion. The court dismissed plaintiffs’ expressive association claims on the ground that plaintiffs had not shown that their association with the Outlaws constituted speech on a matter of public concern. See id. at *5-*6. The district court noted that this Court in Cobb v.

Pozzi, 363 F.3d 89 (2d Cir.2004), had stated that “ ‘[w]e ... join[]’” other circuits and ‘“hold that a public employee bringing a First Amendment freedom of association claim must persuade a court that the associational conduct at issue touches on a matter of public concern.’ ” Piscottano II, 2005 WL 1424394, at *3 (quoting Cobb, 363 F.3d at 102).

Although the Cobb Court had then proceeded to assume, rather than to decide, that the conduct before it in fact touched on a matter of public concern, the district court concluded that the Cobb statement of principle was intended as guidance to the district courts and should be followed, see Piscottano II, 2005 WL 1424394, at *3.

The district court reasoned, alternatively, that because the public-concern test is applicable to speech, which is explicitly protected by the First Amendment, and freedom of association is not mentioned in the Amendment but is derivative of freedom of speech, it would be anomalous to hold that a plaintiff could prevail on a freedom-of-expressive-association claim upon making a lesser showing than that required for proof of a violation of the right to freedom of speech itself, were not exempt from the public-concern test for their speech or expressive associations during their off-duty hours. See id. at *6.

The court noted that, in response to a question at oral argument, “[p]laintiffs’ counsel conceded ... that if Plaintiffs are required to satisfy the public concern requirement, their First Amendment claim must fail.” Id. at *2. The court accordingly dismissed plaintiffs’ expressive association claims. As to plaintiffs’ intimate association claims, the district court noted, as set forth more fully in

Part III below, that in addition to the undisputed fact that “many of the Outlaws’ activities and events — such as motorcycle rides, cookouts and parties— are freely open to non-members,” it was “apparent that [the Outlaws] is not a small group” and that it also is not “a particularly selective organization.” Id. at *7. The district court thus concluded that association with the Outlaws “falls outside of the range of intimate associations that are protected by the First Amendment.” Id. at *8.

As to plaintiffs’ due process challenge to Directive 2.17, the district court concluded that, even viewing the counseling letters as discipline and viewing plaintiffs as having been disciplined because of their association with the Outlaws, and not because of any untruthfulness, Directive 2.17 is not unconstitutionally vague as applied to the Plaintiffs because its terms “amply encompass[] the conduct with which Plaintiffs, by their own characterization, were charged — that is, associating with a group that Defendants understood to be ‘a criminal enterprise,’ ” id. at *11 (quoting Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for

Summary Judgment and in Support of Plaintiffs’ Cross-Motion for

Summary Judgment (“Plaintiffs’

Summary Judgment Memorandum”) at 48). Addressing plaintiffs’ assertion that they did not know the Outlaws was a criminal organization, the district court pointed out that it was an “undisputed fact that in November 2003 each Plaintiff received a copy of the DOC’s report outlining numerous instances of criminal conduct by Outlaws members and officials.” Id. at *12.

The court also noted that Eight and Pis-cottano had “continued to attend Outlaws events even after being placed on administrative leave pending DOC’s full investigation of their association with the Outlaws,” id., and that “Vincenzo also continued to attend the Outlaws’ activities even after being told expressly that attending Outlaws events would result in termination,” id.

The district court concluded that [t]here can be no serious dispute that a reasonable corrections officer would recognize that a regulation prohibiting him from “[ejngaging in unprofessional or illegal behavior — on or off duty — that could negatively reflect on the department” would bar him from associating with a group that has been identified, at least at the national level, as having been involved in criminal and gang-related activities. Id. (quoting DOC Employee Handbook).

Finally, the court rejected the claims of Piscottano and Vincenzo that Directive 2.17 is impermissibly vague because supervisors had misled them to believe that the directive did not prohibit their association with the Outlaws. Id. at *13. Citing Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), the court stated that allegations of even official misinformation do not “render an otherwise constitutional regulation void for vagueness” where the party’s conduct is clearly within the scope of the regulation. Piscottano II, 2005 WL 1424394, at *13.

The court noted that Piscottano and Vincenzo had not asserted any claim of estoppel. See id. Judgment was entered dismissing the Complaint in its entirety. On this appeal, plaintiffs pursue their expressive association, intimate association, and void-for-vagueness claims. II. FREEDOM OF EXPRESSIVE ASSOCIATION In challenging the dismissal of their expressive association claims, plaintiffs contend principally that the district court erred (

a) in ruling that they were required to show that their expressive conduct was on a matter of public concern, and (

b) in failing to rule that their off-duty association with the Outlaws was unrelated to their employment and hence was protected by the First Amendment. For the reasons that follow, we affirm the dismissal of these claims, although our analysis differs from that of the district court. A.

The Applicable Legal Principles The First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” . U.S. Const, amend. I. Although freedom of expressive “association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972).

The First Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, see, e.g., Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), thus prohibits a state, as sovereign, from abridging an individual’s “ ‘right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends,’ ” Boy Scouts of America v. Dale, 530 U.S. 640, 647, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000) (quoting Roberts v.

United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)), and from denying an individual citizen “rights and privileges solely because of [his] association with an unpopular organization,” Healy, 408 U.S. at 186, 92 S.Ct. 2338. “[G]uilt by association alone, without [establishing] that an individual’s association poses the threat feared by the Government, is an impermissible basis upon which to deny First Amendment rights.” Id. (internal quotation marks omitted). 1.

The State as Employer, and the Pickering Test When acting as an employer, “the State has interests ... in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). More than “[o]ne hundred years ago, the [Supreme] Court noted the government’s legitimate purpose in ‘promoting] efficiency and integrity in the discharge of official duties, and [in] maintaining] proper discipline in the public service.’ ” Connick v.

Myers, 461 U.S. 138, 150-51, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quoting Ex parte Curtis, 106 U.S. 371, 373, 1 S.Ct. 381, 27 L.Ed. 232 (1882)). “To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch.

Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.” Connick, 461 U.S. at 151, 103 S.Ct. 1684 (quoting Arnett v. Kennedy, 416 U.S. 134, 168, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (concurring opinion of Powell, /.)). When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.

Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). In sum, “the government as employer indeed has far broader powers than does the government as sovereign.” Id. at 671, 114 S.Ct. 1878. The key to First Amendment analysis of government employment decisions ... is th[at t]he government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.

The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate. Id. at 675, 114 S.Ct. 1878.

This does not mean that public employees, merely by accepting public employment, “relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the [government’s] operation,” Pickering, 391 U.S. at 568, 88 S.Ct. 1731, for “the First Amendment’s primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office,” Connick, 461 U.S. at 154, 103 S.Ct. 1684.

Accordingly, [t]he problem in any case is to arrive at a balance between 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. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. See also Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (statements made by a public employee pursuant to his official duties, rather than as a citizen, are not protected by the First Amendment).

The Pickering test thus poses two questions (the first being “implicit in Pickering,” City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (“Roe”)): (1) whether the employee’s speech as a citizen was on a matter of public concern, and if so, (2) whether the employer has shown that the employee’s interest in expressing himself on that matter is outweighed by injury that the speech could cause to the employer’s operations.

See, e.g., Garcetti 126 S.Ct. at 1958; Waters, 511 U.S. at 668, 114 S.Ct. 1878 (plurality opinion); Connick, 461 U.S. at 142, 103 S.Ct. 1684; Pickering, 391 U.S. at 568, 88 S.Ct. 1731. The issue of whether the subject of an employee’s speech or expressive conduct is a matter of public concern is a threshold question. See, e.g., Roe, 543 U.S. at 84, 125 S.Ct. 521.

If the employee “fails th[is] threshold test[,] Pickering balancing does not come into play.” Id.; see, e.g., Connick, 461 U.S. at 146, 103 S.Ct. 1684 (if the employee’s speech “cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge”).

Thus, we ask first whether the employee’s expressive conduct was speech as a citizen on a matter of public concern. “If the answer is yes, then the possibility of a First Amendment claim arises.” Garcetti, 126 S.Ct. at 1958. “If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Id. 2.

Public Concern Because the meaning and application of constitutional provisions are issues of law that must be determined by the court, the question of whether an employee’s expressive activity is speech on a matter of public concern is an issue of law for the court. See, e.g., Connick, 461 U.S. at 150 n.10, 103 S.Ct. 1684.

In considering a First Amendment claim of deprivation of the right to free speech, “we are compelled to examine for ourselves the statements in issue and the circumstances under which they [were] made to see whether or not they ... are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.” Id. (internal quotation marks omitted); see, e.g., id. at 148 n.7, 103 S.Ct. 1684 (“The inquiry into the protected status of speech is one of law, not fact.”); Waters, 511 U.S. at 668, 114 S.Ct. 1878 (plurality opinion) (“it is the court’s task to apply the Connick test to the facts”).

The question of what is a matter of public concern is not amenable to a simple, definitive answer. Nonetheless, Connick provides some guidance. It directs courts to examine the “content, form, and context of a given statement, as revealed by the whole record” in assessing whether an employee’s speech addresses a matter of public concern. [461 U.S.] at 146-147[, 103 S.Ct. 1684], In addition, it notes that the standard for determining whether expression is of public concern is the' same standard used to determine whether a common-law action for invasion of privacy is present.

Id., at 143, n. 5[, 103 S.Ct. 1684], That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469[, 95 S.Ct. 1029, 43 L.Ed.2d 328] (1975), and Time, Inc. v. Hill, 385 U.S. 374, 387-388[, 87 S.Ct. 534, 17 L.Ed.2d 456] (1967). These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.

Roe, 543 U.S. at 83-84, 125 S.Ct. 521 (emphasis added); see also Connick, 461 U.S. at 146, 103 S.Ct. 1684 (speech on a matter of public concern is speech “relating to any matter of political, social, or other concern to the community”). 3. Employer Justification for Restricting Employee Speech If it is determined that the employee’s expressive conduct as a citizen involved a matter of public concern, the government bears the burden of justifying its adverse employment action. See, e.g., United States v. National Treasury Employees Union, 513 U.S. 454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (“NTEU”).

Justifications may include such considerations as maintaining efficiency, discipline, and integrity, preventing disruption of operations, and avoiding having the judgment and professionalism of the agency brought into serious disrepute. See, e.g., Waters, 511 U.S. at 675, 114 S.Ct. 1878 (plurality opinion). Evidence that such harms or disruptions have in fact occurred is not necessary.

The employer need only make a reasonable determination that the employee’s speech creates the potential for such harms. “[W] e do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships [are] manifest before taking action.” Connick, 461 U.S. at 152, 103 S.Ct. 1684.

Further, “[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Id. at 151-52, 103 S.Ct. 1684; see, e.g., Waters, 511 U.S. at 673, 114 S.Ct. 1878 (plurality opinion) (“government employers’ reasonable predictions of disruption, even when the speech involved is on a matter of public concern,” are “given substantial weight”); id. (“we have consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions [by the government as sovereign] on the speech of the public at large”).

Such deference to the government’s assessment of potential harms to its operations is appropriate when the employer has conducted an objectively reasonable inquiry into the facts — an inquiry that need not be constrained by the rules of evidence, such as the rale against hearsay, applicable in judicial proceedings — and has arrived at a good faith conclusion as to those facts. See id. at 676-77, 114 S.Ct. 1878 (plurality opinion). If the employer meets this test, it may, as a matter of law, impose the discipline it deems reasonable, based on the facts it has found, without incurring liability.

See, e.g., id.; see also id. at 685, 114 S.Ct. 1878 (concurring opinion of Souter, J.) (“A majority of the Court agrees that employers whose conduct survives the plurality’s reasonableness test cannot be held constitutionally liable (assuming the absence of pretext).... ”). The employer does not meet its burden, however, if there is no demonstrated nexus between the employee’s speech and the employer’s operations.

Where there is no such nexus, the state’s interest as an employer is not implicated, and restrictions on the employee’s speech will be subjected to the same scrutiny given to restrictions imposed on citizens’ speech by the state as sovereign. See, e.g., NTEU, 513 U.S. at 465-66, 467 n.11, 470, 115 S.Ct. 1003. In NTEU, the Supreme Court considered a federal statute that prohibited lower-level federal government employees from accepting any compensation for making speeches or writing articles.

The plaintiffs were federal employees who, in their off-duty hours, spoke or wrote on topics that usually bore no relationship to their employment.

While their speech was evidently on topics of public concern — they were offered compensation by public groups and entities for their talks and writings — the NTEU Court noted that, “[w]ith few exceptions, the content of [plaintiffs’] messages has nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the offices in which they work” Id. at 465, 115 S.Ct. 1003 (emphasis added); see id. (“Neither the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.” (emphasis added)).

Regulations implementing the statute “exclude[d] a wide variety of performances and writings that would normally appear to have no nexus with an employee’s job.” Id. at 476, 115 S.Ct. 1003. With “no nexus to Government employment,” the Court stated, “no corrupt bargain or even appearance of impropriety appears likely.” Id. at 474, 115 S.Ct. 1003.

The government’s only argument in defense of the statute’s wholesale ban on the employees’ acceptance of honoraria for their off-duty speech was that the outright ban would be easier to administer than a nexus-related prohibition that would require a case-by-case comparison of the speech or

article with the employee’s job.

Although the Court had normally “ ‘given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large,’ ” id. at 475 n. 21, 115 S.Ct. 1003 (quoting Waters, 511 U.S. at 673, 114 S.Ct. 1878 (plurality opinion)), the NTEU Court concluded that “[deferring to the Government’s speculation about the pernicious effects of thousands of articles and speeches yet to be written or delivered would encroach unacceptably on the First Amendment’s protections,” NTEU, 513 U.S. at 476 n. 21, 115 S.Ct. 1003.

Accordingly, the Court held that the “blanket burden on the speech of nearly 1.7 million federal employees,” speaking or writing on their own time on topics unrelated to their employment, “requires a much stronger justification than the Government’s dubious claim of administrative convenience.” Id. at 474, 115 S.Ct. 1003.

The NTEU principle does not immunize an employee’s expressive activities — even those that take place during his off-duty hours and outside of the workplace, and that purport to be “about subjects not related to his employment” — when his employer’s “legitimate and substantial interests” are “compromised by his speech.” Roe, 543 U.S. at 81, 125 S.Ct. 521. The plaintiff in Roe, an officer of the San Diego Police Department (“SDPD”), spent off-duty hours displaying and selling on the internet videos that showed him stripping off what was obviously a police uniform and masturbating.

The uniform Roe wore was not the specific uniform worn by San Diego policemen, but he offered official San Diego police uniforms for sale, along with other items such as underwear, police equipment, and custom-made videos. His presentations did not include any commentary on the workings or functioning of the San Diego police department.

When the SDPD ordered Roe to cease selling sexually explicit videos or engaging in any similar conduct on the internet, by mail, or through any other means of distribution to the public, Roe only partially complied, continuing to purvey his first two videos and offering to make custom videos. See Roe, 543 U.S. at 78-79, 125 S.Ct. 521. After internal proceedings, Roe was discharged. He sued the city, alleging that the termination violated his First Amendment rights. The district court dismissed his claim on the ground that his expressive conduct was not on a matter of public concern.

The court of appeals, citing NTEU, reversed, stating that Roe’s conduct was on a matter of public concern, had taken place while he was off duty and away from his employer’s premises, and was unrelated to his employment. The Supreme Court reversed. The Court had “no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern under any view of the public concern test.” Roe, 543 U.S. at 84, 125 S.Ct. 521.

It also found NTEU entirely inapplicable because “[i]n NTEU it was established that the speech was unrelated to the employment and had no effect on the mission and purpose of the employer,” id. at 80, 125 S.Ct. 521. Roe’s conduct, in contrast, brought the police department into serious disrepute: Although Roe’s activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech.

Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker [in his advertising] as “in the field of law enforcement,” and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute. Id. at 81, 125 S.Ct. 521.

Although the court of appeals stated that SDPD had conceded that Roe’s activities were “ ‘unrelated’ ” to his employment, the Supreme Court reasoned that the proper

interpretation of the City’s statement is simply to underscore the obvious proposition that Roe’s speech was not a comment on the workings or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City’s consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present case falls outside the protection afforded in NTEU. Id. at 81-82, 125 S.Ct. 521; see id. at 84, 125 S.Ct. 521 (“The speech in question was detrimental to the mission and functions of the employer.”).

In sum, to have a nexus to his employment, an employee’s speech need not comment on the workings or functioning of the employer’s operation; it is sufficient that that speech be detrimental to that operation. B. The Record in the Present Case 1. Application of the Public Concern Test With these principles in mind, we begin by addressing plaintiffs’ contention that Connick’s public concern test is inapplicable to claims asserting violation of the right to expressive association and their concession in the district court that their expressive conduct was not on a matter of public concern.

We conclude that both their concession — at least so far as Piscot-tano, Eight, and Vincenzo are concerned— and their contention are erroneous. We note first our agreement with the district court that, in order to prevail on a First Amendment freedom-of-expressive-association claim, a government employee must show, inter alia, that his expressive association involved a matter of public concern — just as would a government employee complaining of a violation of his right to freedom of speech. See, e.g., Cobb v. Pozzi, 363 F.3d 89, 102-07 (2d Cir.2004).

Given that freedom of speech is expressly protected by the First Amendment and that freedom of expressive association is not, the latter being deemed protected only as derivative of freedom of speech, we see no logic in plaintiffs’ contention that they should be allowed to establish a violation of the derivative right on less proof than is required for establishment of a violation of the expressly protected right from which it is derived. See, e.g., id. at 105-07. Second, as discussed above, the inquiry into whether the speech at issue is on a matter of public concern is a question of law for the court.

Thus, concessions by the parties are not necessarily dispositive, and our review of the record persuades us that the concession by plaintiffs in this case is only partially correct. An individual’s association with an organization can be deemed to involve expression on a matter of public concern in either of two ways. First, the organization itself may engage in advocacy on a matter of public concern. If it does, the individual’s association with the organization may constitute, at least vicariously, expressive conduct on a matter of public concern.

See generally Roberts, 468 U.S. at 622, 104 S.Ct. 3244; Melzer v. Board of Education, 336 F.3d 185, 195-96 (2d Cir.2003), cert. denied, 540 U.S. 1183, 124 S.Ct. 1424, 158 L.Ed.2d 87 (2004). Second, even where the organization itself does not purport to engage in advocacy on matters of public concern, the individual’s association with the organization may&emdash;although it does not necessarily&emdash;constitute approval or an endorsement of the nature and character of the organization.

Such approval or endorsement itself would constitute expressive conduct on a matter of public concern if the nature or character of the organization is a matter of public concern. In the present case, plaintiffs have conceded that the Outlaws is not an organization that speaks out on matters of public concern, and the record as a whole supports that concession.

There was no evidence to the contrary; and Eight, for example, testified that what the Outlaws is “all about” is riding motorcycles, having parties, and “hav[ing] fun.” (Tr. 103; see also id. at 137 (Scappini: Outlaws functions are “social”); id. at 6 (Piscottano: Outlaws is essentially “a social club”).) Thus, we accept plaintiffs’ concession to the extent that it meant that they are not engaged in expressive conduct on matters of public concern vicariously by reason of advocacy by the OMC itself. This does not, however, answer the question of whether plaintiffs’ own conduct in associating with that

chapter constitutes expressive conduct on a matter of public concern, given the history and character of the national organization with which the Connecticut

chapter is affiliated and of other Outlaws chapters. The NDIC reports numerous instances in which members of the Outlaws in various parts of the country have engaged in violent criminal activity, including rape, arson, bombings, and murder, and numerous convictions and imprisonments of Outlaws members. (See

Part I.A.I. above.) Plainly, the nature of the organization with which the Connecticut

chapter is affiliated is a matter of public concern. The conduct of three of these plaintiffs can easily be seen as expressing their view&emdash;approval&emdash;of the Outlaws local chapter, the national organization with which it is affiliated, and other Outlaws chapters. DOC presented evidence that Piscottano and Eight&emdash;even after resigning their membership&emdash;not only attended several Outlaws events but also wore Outlaws colors. Vincenzo, even though he has denied ever being a member, has likewise admitted wearing Outlaws apparel.

State Police Trooper Williams, an expert in motorcycle gangs, testified that Outlaws colors are a source of pride (see Tr. 188); and Eight, when asked the significance of wearing Outlaws colors, similarly testified that “[fit’s a proud thing” (id. at 103). Further, the criminal activity in other Outlaws chapters is material here because, while plaintiffs repeatedly emphasize that no member of the Connecticut

chapter (qua Outlaw) has thus far been accused or convicted of a crime, the Connecticut chapter’s affiliation with the national organization — and the resulting close relationship with other Outlaws chapters — is one of the stated attractions of associating with the Outlaws.

Three of the plaintiffs, when asked to describe the reasons for their involvement in the Outlaws, responded, under oath, that one of their reasons was that “as a Club member, I can travel anywhere in the world and be welcomed as a brother” (E.g., Piscottano Answer to DOC Interrogatory No. 8 (emphasis added); Eight Answer to DOC Interrogatory No. 8 (same); Vincenzo Answer to DOC Interrogatory No. 8 (same).) (We note that Vincenzo gave this answer despite having denied that he ever was a member of the Outlaws.) Eight, for example, apparently received such a welcome in Florida.

When asked about occasions on which, despite his resignation, he was “permitted to wear colors at club functions,” he stated: Well, I was just down in Daytona last month or maybe four to six weeks ago, whatever, and I was down there at a party down there and they brought the colors down to me and I wore them while I was down in Daytona. (Tr. 104.) Thus, Piscottano, Eight, and Vincenzo treasure their associations with members of other Outlaws chapters that may well be conducting crim

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