Ronald DIBLE; Megan Dible, husband and wife, Plaintiffs-Appellants, v. CITY OF CHANDLER, a municipality in the State of Arizona; Chandler Police Department, a law enforcement agency of the City of Chandler; Bobby Joe Harris, Chandler Police Chief and husband; Judy Harris, wife, Defendants-Appellees, 502 F.3d 1040

Opinion By Judge FERNANDEZ; Concurrence By Judge CANBY. FERNANDEZ, Circuit Judge: Ronald and Megan Dible appeal from the district court’s grant of

summary judgment against them in their action against the City of Chandler, Arizona, the Chandler Police Department, and the Chandler Police Chief Bobby Joe Harris (collectively the City). Principally, the Dibles assert that Ronald Dible was a police officer whose rights under the First Amendment to the United States Constitution were violated when he was terminated for participating in (performing in, recording and purveying) a sexually explicit website with his wife. We affirm.

BACKGROUND In January of 2002, the Chandler Police Department learned that one of its officers, Ronald Dible, was running a website featuring sexually explicit photographs and videos of his wife. After initially placing Ronald Dible on administrative leave and conducting an internal investigation into his involvement with the website, the City terminated his employment as a police officer. Ronald Dible and his wife Megan Dible began running the website in September of 2000, after Megan Dible signed a contract with CDM Networks, which operated the website.

The Dibles then posted pictures, of Megan Dible on the website, under the pseudonym “Katelynn.” Those photographs portrayed Megan Dible in various sexual poses and- activities with Ronald Dible, another woman, and inanimate objects. The Dibles also posted, among other things, a videotape of Megan Dible masturbating that had been filmed by Ronald Dible. The Dibles did not intend to express any kind of message or engage in social or political commentary through the material they posted on their website. They participated in those activities to make money; it was as simple as that.

The website operated as follows: Any computer user with internet capability could access the website’s home page without charge. The home page featured partially nude pictures of Megan Dible in order to entice" customers. If the user wanted to view more pictures of Megan Dible, a fee was required, but before the pictures could be reviewed, the user had to enter into a purported contract with CDM Networks. Once the user accepted the terms of the contract and paid the fee, -he was free to view the website’s sexually explicit photographs and videos. The Dibles also offered a CD-ROM for sale on the website.

Like the website itself, the CD-ROM featured photographs of Megan Dible having sex with Ronald Dible, other women, and inanimate objects. Although the photographs on the website and the CD-ROM generally did not show Ronald Dible’s face, one of the photographs did. The Dibles also promoted their website by attending “bar-meets.” The purpose of the bar-meets was to have fans of the website meet Megan Dible, although Ronald Dible also attended. The bar-meets, which took place at local bars, were open to the public, and attendees were free to take photographs.

They did, and sometimes posted those on their own websites. Although some attendees knew Megan Dible only as Katelynn, others knew her true identity. At those bar-meets, both Megan Dible and Ronald Dible posed in sexually suggestive ways with each other and with other people, somé of whom were partially nude. The Dibles’ photographs from the bar-meets were compiled on a CD-ROM and were then sold through their website. Rightly believing that his participation in the " website would violate police department policies, Ronald Dible did not inform any department officials about it.

He did, however, tell a few people about it, including a fellow police officer, whom he urged to start his own website. The officer eventually did. Sometime in the later part of 2001, rumors about the Dibles’ website began circulating among members of the department, and eventually the news of the website filtered up to department officials. Upon learning about it, the police chief on January 25, 2002, ordered Ronald Dible to cease all activity with the website and placed him on administrative leave. The chief then opened an investigation into Ronald Dible’s involvement with the website.

The investigators questioned Ronald Dible about it, and, in response, he provided several misleading answers. After establishing that he was, in fact, involved in the website, the investigators questioned him about, among other things, whether he and Megan Dible had earned money from the site, and asked to see the contract between Megan Dible and CDM Networks. By January 25, 2002, the press had also learned about the website and began reporting on it in an unflattering manner. The press reported that the website was run by the Dibles and that he was employed as a city police officer.

The record contains no evidence identifying the person who alerted the press to the website’s existence or to the Dibles’ involvement in it, but, of course, a lot of people already knew. The result of that publicity was disquieting to say the least. A police lieutenant assigned to look into the situation spoke to a large number of officers and others, found that it had severely impacted their working situation, and declared that police officer morale “really hit bottom.” In due course, Ronald Dible’s supervisor recommended his dismissal.

The supervisor found that Ronald Dible had violated the department’s regulation prohibiting its officers from bringing discredit to the city service, and that Ronald Dible had provided false answers to district investigators in the course of their investigation. Chief Harris approved Ronald Dible’s dismissal. Ronald Dible then appealed that decision to the City’s Merit, Board, which conducted an evidentiary hearing. At the hearing, several officers testified that they had been questioned and ridiculed about the website.

A female officer, Amy Hedges, testified that she was called a “porn whore” by an individual she was attempting to arrest. She further testified that she was subjected to derogatory remarks while responding to a bar fight. Specifically, when she arrived at the bar, a patron began gyrating, told her to take off her clothes, and harassed her about the website. Officer Hedges testified that the patron’s comments added to the instability of an already fluid field situation and confrontation. Another officer testified to the disrespect that he was shown after the website became publicly known.

An investigating officer, who had interviewed many other officers, as well as other people, also testified to the impact of the Dibles’ activity on the department. In addition, potential police recruits questioned an officer about the website on each of the five separate recruitment trips that she had conducted after the existence of the site became widely known to members of the public.

Assistant Chief Joseph Gaylord testified that he believed the scandal involving Ronald Dible’s participation in the sexually explicit website would negatively impact the department’s efforts to recruit female officers for years to come. Ultimately, on April 3, 2002, the Merits Board issued a recommendation affirming the decision to discharge Ronald Dible. Thereafter, the Dibles initiated the underlying action. The district court granted

summary judgment in the City’s favor on each of the Dibles’ claims. In its order, the district court found that, among other things, Ronald Dible’s involvement in the website was not protected by the First Amendment. Subsequently, the Dibles’ counsel, Keith Knowlton, filed a motion for a new trial and filed a supplement thereto. The district court denied the motions. This appeal ensued. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s grant of the

summary judgment de novo. Buo no v. Norton, 371 F.3d 543, 545 (9th Cir.2004). DISCUSSION The major issue before us is whether Ronald Dible’s First Amendment right to freedom of speech was violated when he was terminated for maintaining and participating in a sexually explicit website with his wife, Megan Dible. In fact, for all practical purposes, the other issues in this case hinge on the decision of that issue. We will, therefore, consider it first and consider the other issues raised by the Dibles thereafter. A.

Freedom of Speech The Dibles claim that because Ronald Dible’s activities must be treated as protected employee speech, the City improperly terminated him. See Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003) (setting forth elements of a prima facie case). We disagree. The Supreme Court recently took up the issue of employee speech in general and conduct of the sort engaged in by Ronald Dible in particular. See City of San Diego v. Roe, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam).

In that case, a police officer with the City of San Diego, California, made a video of “himself stripping off a police uniform and masturbating.” Id. at 78, 125 S.Ct. at 522. He sold copies on eBay, under a user name of Codestud3@aol.com. Id. While it appears that the uniform was not the specific uniform worn by San Diego police officers, it was “clearly identifiable as a police uniform,” and Roe also sold custom videos and official “uniforms of the San Diego Police Department,” along with other items of police equipment.

Id. “Roe’s eBay user profile identified him as employed in the field of law enforcement.” Id. at 78, 125 S.Ct. at 523. When the police department found out, it investigated and ultimately terminated him. Id. at 78-79, 125 S.Ct. at 523. He then brought an action in which he claimed that his First Amendment right to freedom of speech had been violated. Id. at 79, 125 S.Ct. at 523. The Supreme Court surveyed First Amendment law as it related to government employees, and set forth' an analytical framework for consideration of the issue.

The Court first recognized that “[a] government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.” Id. at 80, 125 S.Ct. at 523. That said, when a government employee’s speech is under consideration, there are two paths of analysis, depending on whether the speech is related or unrelated to the person’s employment. As the Court put it: [A] governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.

The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See [Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ]; Pickering v. Bd. of Ed. of Township High School Dist. 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification “far stronger than mere speculation” in regulating it. United States v. Treasury Employees, 513 U.S. 454, 465, 475, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (NTEU). We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases. Id. at 80, 125 S.Ct. at 523-24.

The Court then went on to consider whether Roe’s speech activities were related or unrelated to his position as a police officer with the city. It determined that Roe’s indecent activity, indeed, related to his employment. Id. at 80-82, 125 S.Ct. at 524. In so doing, the Court observed that in NTEU the speech in question was not only unrelated but also “had no effect on the mission and purpose of the employer.” Id. at 80, 125 S.Ct. at 524. The Court also emphasized that in NTEU “none of the speech at issue ‘even arguably[had] any adverse impact’ on the employer.” Id. at 81, 125 S.Ct. at 524.

It finally pointed out that the City of San Diego had conceded that Roe’s activities were unrelated in the sense that they were not concerned with the “workings or functioning” of the police department, but, it concluded: 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.

The authorities that instead control, and which are considered below, are this Court’s decisions in Pickering, supra, Connick, 461 U.S. 138, 103 S.Ct. 1684, and the decisions which follow them. Id. at 81-82, 125 S.Ct. at 524. Of course, as the Court noted, Roe had gone out of his way to identify himself with police work. See id. at 81, 125 S.Ct. at 524. Perhaps that alone would have sufficed to make his activity related to his employment. If that were the case, it must be said that Ronald Dible did not do what Roe did.

Ronald Dible took some pains to keep the police out of the pictures, but because of other clues and information, it became publicly known that he was involved and that he was a police officer. Certainly it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. That said, the Court has never explicitly defined what is or is not related and we need not do so here.

As in Roe, the result would be the same “under either line of cases.” Id. at 80, 125 S.Ct. at 524. The Dibles cannot prevail. We will explain.

(1) Related Speech. If we determined that Ronald Dible’s activities were related to his public employment, we would necessarily approach his First Amendment claim as did the Supreme Court in Roe. It said: To reconcile the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test.

It requires a court evaluating restraints on a public employee’s speech to 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. at 82, 125 S.Ct. at 524-25. As the Court explained, before an employee is even entitled to have the balancing test applied, the “speech must touch on a matter of ‘public concern.’ ” Id. at 82-83, 125 S.Ct. at 525.

The Court further pointed out: “Connick held that a public employee’s speech is entitled to Pickering balancing only when the employee speaks ‘as a citizen upon matters of public concern’ rather than ‘as an employee upon matters only of personal interest.’ ” Id. at 83, 125 S.Ct. at 525. And, while the borders of the territory of public concern are not entirely defined, they do encompass matters that are “of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication,” and even some private comments in the proper circumstances.

Id. at 83-84, 125 S.Ct. at 525-26. So, for example, the Court has said that an employee’s quiet statement to a fellow employee at a county constable’s office that she hoped that a future attempt at assassination of the President would succeed, touched on a matter of public concern. See Rankin v. McPherson, 483 U.S. 378, 379-82, 386, 107 S.Ct. 2891, 2894-96, 2898, 97 L.Ed.2d 315 (1987). No matter. Whatever a periplus of the outer limits of public concern might show, it was pellucid that Roe’s vulgar behavior would be discovered to be outside of those borders.

As the Court said, “there is 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. He fails the threshold test and Pickering balancing does not come into play.” Roe, 543 U.S. at 84, 125 S.Ct. at 526. The same is true of Ronald Dible’s activities in this case. They did not give the public any information about the operations, mission or function of the police department, and were not even close to the kind of private remarks that the Court has countenanced. His activities were simply vulgar and indecent.

They did not contribute speech on a matter of public concern. The Dibles could not prevail if Ronald Dible’s speech is deemed to have been related to his employment.

(2) Unrelated Speech. If we determined that' Ronald Dible’s activities were unrelated to his public employment, we would also have to apply a balancing test. Interestingly enough, it is not entirely clear whether the public concern concept would be a necessary threshold to that balancing. In Roe, id. at 80-82, 125 S.Ct. at 524, the Supreme Court did not exactly say that the public concern concept must be considered, but it also did not expressly hold that the Court of Appeals’ determination that public concern was part of the test was incorrect.

And in NTEU, 513 U.S. at 466, 115 S.Ct. at 1013, the Court pointed out that: Respondents’ expressive activities in this case fall within the protected category of citizen comment on matters of public concern rather than employee comment on matters related to personal status in the workplace. The speeches and articles for which they received compensation in the past were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their government employment.

Moreover, in Rankin, 483 U.S. at 386, 107 S.Ct. at 2898, the Court did indicate that a comment about the President was a matter of public concern, but Rankin dealt with an unrelated comment made at the workplace itself. We, however, need not resolve whether thé public concern' test must be satisfied in this instance. See Locurto v. Giuliani, 447 F.3d 159, 175 (2d Cir.2006).

If a statement must be one of public concern when it consists of unrelated activity away from the workplace, Ronald Dible’s conduct was no more protected than it would be if the activity were related, and the Dibles’ claim would fail on that account. But, suppose passing the public concern test is not required when unrelated expressive activity takes place away from the work setting. What then? Again, we must balance the asserted First Amendment right against the government’s justification. See Roe, 543 U.S. at 80, 125 S.Ct. at 524. The Dibles’ First Amendment claim cannot survive that balance either.

We first note that a number of Supreme Court justices have expressed some dubiety about the strength of the protection offered to activities that can be said to be of the same ilk as those we deal with here, or, perhaps, of an even less indecent ilk. See City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 1391, 146 L.Ed.2d 265 (2000) (plurality opinion) (stating that public nude dancing is “only within the outer ambit of the First Amendment protection”); Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (plurality opinion) (stating that public nude dancing is protected but “only marginally”) However, this court has said that plurality decisions of the Supreme Court do not make law and that “the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts.” Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986). None of those cases is exactly like the one at hand.

We are not dealing with the rights of an ordinary citizen vis-a-vis the government; we are dealing with the rights of a governmental employee (a police officer at that) vis-á-vis his employer. In this context, the reflections of the Justices about the weight of the right to engage in public indecent activity commend themselves to our consideration. As Roe suggests, it is a bit difficult to give that activity the same weight as the right to engage in political debate or to lecture on religion and black history or to write articles about the environment.

Especially is that true where, as here, the employee admits that he was not interested in conveying any message whatsoever and was engaged in the indecent public activity solely for profit. In any event, the interest of the City in maintaining the effective and efficient operation of the police department is particularly strong. It would not seem to require an astute moral philosopher or a brilliant social scientist to discern the fact that Ronald Dible’s activities, when known to the public, would be “detrimental to the mission and functions of the employer.” Roe, 543 U.S. at 84, 125 S.Ct. at 526.

And although the government’s justification cannot be mere speculation, it is entitled to rely on “reasonable predictions of disruption.” Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686 (1994) (plurality opinion). Police departments, and those who work for them, are engaged in a dangerous calling and have significant powers. The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so.

The law and their own safety demands that they be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect. Nor is this mere speculation. Almost as soon as Ronald Dible’s indecent public activities became widely known, officers in the department began suffering denigration from members of the public, and potential recruits questioned officers about the Dibles’ website. Moreover, the department feared that the recruiting of female officers would be affected because of what it seemed to say about the climate at the department.

That is not rank speculation. In a similar case involving police officers’ public sexual activities, the Eleventh Circuit Court of Appeals noted that this kind of activity by officers, once known, could not help but interfere with the functions and mission of the police department because “it reflected on [deputies’] fitness as deputies and undermined public confidence” in the department. Thaeter v. Palm Beach County Sheriff’s Office, 449 F.3d 1342, 1356 (11th Cir.2006). Just so. We are not galliéd by the Dibles’ claim that Ronald Dible is being subjected to some kind of heckler’s veto.

Worries about a heckler’s veto have generally dealt with the restriction of a citizen’s speech based upon the anticipated disorderly reaction by members of an audience. See Rosenbaum v. City and County of San Francisco, 484 F.3d 1142, 1158-59 (9th Cir.2007). Those worries do not directly relate to the wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and, thereby, affect the agency’s mission.

The Dibles’ argument ignores the fact that the public can form a negative view of a person due to his particular mode of expression — there is nothing unconstitutional about that. It also ignores the unique and sensitive position of a police department and its necessary and constant interactions with the public. See Byrd v. Gain, 558 F.2d 553, 554 (9th Cir.1977) (noting that police departments have special concerns regarding employees’ speech due to the nature of their mission); see also Waters, 511 U.S. at 674-75, 114 S.Ct. at 1887-88 (noting government’s significant interest in employee activity).

As the Second Circuit Court of Appeals has pointed out, even where the unrelated expression is a matter of public concern — there a comment on race relations — police officers “are quintessential^ public servants” and “part of their job is to safeguard the public’s opinion of them.” Locurto, 447 F.3d at 178. Thus, said the court, the actions of the police department were not due to a heckler’s veto, but rather an, example of the government’s accounting for the public’s perception of the officers’ actions when it considered the potential for disruption of the department’s functions.

Id. at 179; see also Rankin, 483 U.S. at 389, 107 S.Ct. at 2899 (taking particular note of the fact that a clerical employee’s comments were not made public and, therefore, did not discredit the constable’s office). In fine,' whether Ronald Dible’s activities were related to his employment or not, the City could discipline him for those activities without violating his First Amendment rights. Thus, the Dibles’ claim to the contrary must be rejected. B.

Right of Privacy and Freedom of Association The Dibles also claim that their First Amendment rights to privacy and freedom of association were violated by the City. No doubt the First Amendment does encompass a right of privacy, whose contours include within it a right to make personal decisions and a right to keep personal matters private. See Ferm v. United States Trustee (In Re Crawford), 194 F.3d 954, 958 (9th Cir.1999).

It also encompasses a freedom of association right, which includes the freedom of intimate expression and the right to associate with others in activities otherwise protected by the First Amendment. See Fleisher v. City of Signal Hill, 829 F.2d 1491, 1499-1500 (9th Cir.1987). Neither the Dibles’ right of privacy nor their right to freedom of association was violated here. Beyond any other considerations, there is no evidence that the City released any information that connected the Dibles to the website.

Thus, it could not have violated their right to privacy and intimate association by giving them unwanted publicity. Speaking of unwanted publicity leads to the obvious reflection that intimate as their activity may have been in one sense, it certainly was not intimate in the sense of an activity that they intended to hide. Megan Dible was the star of her own show and happily displayed herself to those willing to pay to view her, and even, as a teaser, to those who were not yet paying. Ronald Dible, for his part, participated in the activity, both as a performer, and as a videographer.

He even appeared in public places for the purpose of advertising the Dibles’ activities and their products. While some believe that when we assume the bench we enter a hibernaculum and retreat from reality, we can see that on the facts of this case the Dibles’ right of privacy claims are virtually oxymorons. Moreover, to the extent that the Dibles assert that Ronald Dible’s freedom of association was violated because of his right to participate in speech activities, as we have already explained, he did not have a right to participate in the activities at hand and avoid City discipline- at the same time.

In short, in a case of this nature, a governmental employee cannot avoid the strictures of the balancing tests that we have heretofore described by attempting to resurrect fallen speech claims as privacy and associational claims. Those First Amendment claims must also necessarily fall with the Dibles’ speech claim. C. Qualified Immunity The Dibles also assert that the district court erred when it decided that the City’s police chief, Bobby Joe Harris, was entitled to qualified immunity. In considering that question we must apply the approach delineated in Saucier v.

Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). That involves a two-step process. We must first consider whether a constitutional right was violated by the official. Id. at 201, 121 S.Ct. at 2156. If not, the inquiry ends and the official is entitled to qualified immunity. Id. If a right was violated, we must proceed to the second step and determine whether that right was clearly established. Id.; see also Brosseau v. Haugen, 543 U.S. 194, 198-99, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (per curiam).

Our disposition of the Dibles’ First' Amendment claims demonstrates that Police Chief Harris did not violate the Dibles’ constitutional rights, and that is enough to end the inquiry. But even if we were to find a violation, we would also be constrained to declare that because “whether a public employee’s speech is constitutionally protected turns on a context-intensive, case-by-case balancing analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly established’ to preclude qualified immunity.” Moran v. Washington, 147 F.3d 839, 847 (9th Cir.1998); see also Lytle v.

Wondrash, 182 F.3d 1083, 1088 (9th Cir.1999). This would not be one of those rarities. Thus, Chief Harris was entitled to qualified immunity. D. State Law Claims The Dibles also claim that the district court erred when it granted

summary judgment on their state law claims. It did not. They first assert that they should be able to pursue their claim to right of privacy under Arizona law. See Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 812 (9th Cir.2002). What we have already said about their First Amendment privacy claim applies here also. Not only does their claimed seclusion right overlook all that they did to publicize and publish their activities, but also they have wholly failed to demonstrate that the City advised the general public about then connection to their little enterprise.

They also assert that they have been subjected to the intentional infliction of emotional distress as that is described under Arizona law. See Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 1075, 1080 (1999). In order to prevail, they would have to show that terminating Ronald Dible because of his indecent activities was “ ‘so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.’ ” Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554, 905 P.2d 559, 563 (1995).

Even if an error were made, just how the mere fact of terminating Ronald Dible for his disreputable activities could meet that standard is not apparent upon an apercu or even upon a perscrutation of the facts of this case. Surely, this is not one of those “extremely rare” instances where the tort can be found to have been committed in the employment context. Id. Finally, the Dibles assert that the termination of Ronald Dible constituted a wrongful termination within the meaning of Arizona law. See Ariz.Rev.Stat. § 23-1501(3)(a)-(d); Bodett v. CoxCom, Inc., 366 F.3d 736, 746 (9th Cir.2004); Galati v. Am.

West Airlines, Inc., 205 Ariz. 290, 292, 293 n. 4, 69 P.3d 1011, 1013, 1014 n. 4 (2003). To the extent that their claim is based upon the alleged violation of Ronald Dible’s First Amendment rights it must, of course, fail. Likewise, the claim must also fail to the extent that it is intended to be an appeal from the determination of the City’s Merit Board on the basis that the Board abused its discretion when it recommended affirming Ronald Dible’s termination. See Hamilton v. City of Mesa, 185 Ariz. 420, 427-28, 916 P.2d 1136, 1143-44 (1995).

The record clearly demonstrates that the Board could properly determine that Ronald Dible’s activities discredited the police department and affected its functions. CONCLUSION Even though many believe that we live in anomic times, we have not yet abandoned our social codes to the point that a city can be sanctioned for violating a police officer’s First Amendment rights when he causes disrespect of the police department and its members by performing in and purveying pictures of his and his wife’s sexually explicit activities over the internet.

The City could properly take notice of the fact that officers and the department were vilipended. It could react to the effects that Ronald Dible’s activities could be expected to and did have upon the police department’s mission and functions. To paraphrase Justice Holmes: Ronald Dible may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time. Therefore, the Dibles’ claims must fail. AFFIRMED. . In fact, he lied about his participation when police department people asked. .

Although the Dibles filed their action in state court, the case was later removed to federal district court. . We recognize that the Dibles’ conduct was more expression (nudity and sexual activity) than speech as such. That does not change the analysis. . See Roe v. City of San Diego, 356 F.3d 1108, 1117-18 (9th Cir.), rev’d, 543 U.S. 77, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). . City of Erie, 529 U.S. at 294, 120 S.Ct. at 1393-94. . NTEU, 513 U.S. at 461-62, 115 S.Ct. at 1010-11. . We have not overlooked Flanagan v. Manger, 890 F.2d 1557, 1566-67 (10th Cir.1989) and Berger v.

Battaglia, 779 F.2d 992, 1000-01 (4th Cir.1985). However, to the extent that they minimize the potential for an actual effect on the efficiency and efficacy of police department functions arising from public perceptions of the inappropriate activities of police officers, they are severely undermined by Roe, and we decline to follow them. . We recognize that Ronald Dible also asserts that inquiry into his financial interests in the website violated some asserted right of privacy. There are some limits to a governmental entity’s investigation of its employees. See Thorne v.

City of El Segundo, 726 F.2d 459, 469-71 (9th Cir.1983). However, we have never gone so far as to suggest that those limits are exceeded where, as here, the question is directly related to the employee's connection to an otherwise unprotected activity that affects the functions and mission of the employer. . See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892). . I place no significance at all on Dible’s statement that he did not intend to convey any message in his expressive activity.

His website constituted expression, and he has raised a First Amendment defense to his termination because of his website activity. It is equally irrelevant to his First Amendment protection that he. sought to make money from his expression, as many speakers or writers do. See, e.g., Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).