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Free Speech

The First Amendment and Off-Duty Police Officer's Counterprotest of Anti-ICE Student Protest

Eugene Volokh | 5.26.2026 8:01 AM

Some excerpts from the long opinion in Mullen v. Giordano, decided Thursday by Judge Susan Brnovich (D. Ariz.):

The Ninth Circuit has distilled Pickering v. Board of Education (1968) into a five-step inquiry to determine whether a government employer retaliated against a public employee in violation of the First Amendment:

(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech….

[1.] Sgt. Mullen Was Engaged in Protected Activity

First, Plaintiffs can show Sgt. Mullen acted as a private citizen engaged in First Amendment protected activity. Although Sgt. Mullen initially went to Hamilton High School to check on his son, he stayed to counter protest the anti-ICE student protest. Sgt. Mullen was off duty, not in uniform, and did not identify himself as a police officer. Phoenix PD's internal investigation acknowledges that Sgt. Mullen was engaging as a counter-protestor. Chandler PD officers at the scene also considered Sgt. Mullen to be a counter-protestor.

Additionally, Sgt. Mullen wore a face covering and a T-shirt that said, "Trump 2024." … There is no question the anti-ICE student protestors understood Sgt. Mullen's Trump T-shirt to express a message favoring immigration enforcement given their vehement cursing and yelling at him.

Moreover, "there is a First Amendment right to film matters of public interest." "This includes the right to record law enforcement officers engaged in the exercise of their official duties in public places." Sgt. Mullen filmed much of his interactions with the officers and student protestors for his safety and to document the events.

[2.] Officers' Conduct At A Protest Are Matters of Public........

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