Plaintiffs-Appellees Dean Kinney and David Hall brought suit against seven law enforcement officials, the seven cities or counties that employ these officials, and the East Texas Police Chiefs Association, asserting four claims: (1) a 42 U.S.C. § 1985(2) claim alleging conspiracy against Kinney and Hall because of their testimony in judicial proceedings, (2) a 42 U.S.C. § 1983 claim alleging violations of their rights to freedom of speech under the First Amendment, (3) a § 1983 claim alleging violations of their Fourteenth Amendment rights to due process of law, and (4) a state law claim alleging tortious interference with business relations. The law enforcement officials now bring an interlocutory appeal of the district court's order denying their motion for summary judgment, in which they asserted qualified immunity against the federal claims and state official immunity against the tort claim. A panel of this court affirmed in part and reversed in part. Kinney v. Weaver, 301 F.3d 253 (5th Cir.2002), vacated and reh'g en banc granted, 338 F.3d 432 (5th Cir.2003). On rehearing en banc, we now AFFIRM the district court's order denying the officials' claim of immunity from the § 1985 claim, the § 1983 First Amendment claim, and the state law claim; given material factual disputes, these claims cannot be disposed of on summary judgment. We REVERSE the district court's order denying immunity from the plaintiffs' § 1983 due process claim.

While many of the basic facts in this case are uncontested, a number of the legally relevant facts are still disputed at this stage. In Parts II and III of this opinion, we elaborate the appellate prism through which we must view the facts in this interlocutory appeal from the district court's decision denying qualified immunity. As we explain there, we are required to accept the truth of the plaintiffs' summary judgment evidence, and we lack jurisdiction to review the genuineness of those factual disputes that precluded summary judgment in the district court. Nonetheless, for ease of understanding and later discussion, our recitation of the facts will note both sides' assertions with respect to the material points of disagreement.

At the time of the events giving rise to this case, Kinney and Hall were instructors at the East Texas Police Academy ("ETPA"), a division of Kilgore College in Kilgore, Texas. Founded by the East Texas Police Chiefs Association in 1966, the ETPA provides basic and advanced training for law enforcement officers in the greater East Texas area. Kinney and Hall had been working at the ETPA for seventeen years and six years, respectively, under renewable one-year employment contracts. The seven law enforcement officials (collectively "the Police Officials") asserting qualified immunity in this case are police chiefs or sheriffs who possess final authority over the training of the officers employed by their respective agencies.1 Before the fall of 1998, the Police Officials enrolled their officers in ETPA courses on a regular basis, including courses taught by Kinney and Hall. The Police Officials were not contractually bound to continue using either the ETPA's services or the services of Kinney and Hall in particular.

In August 1998, Kinney and Hall testified as expert witnesses for the family of Edward Gonzales, a teenager who was fatally shot by a police sniper employed by the city of Kerrville, Texas. The Kerrville case did not involve officers who had trained at the ETPA or police agencies that sent trainees to the ETPA, as Kerrville lies several hundred miles from Kilgore, outside the region from which the ETPA draws its students.2 Kinney and Hall had never before testified as expert witnesses against police officers, though Kinney had previously testified as an expert in defense of the police. The lawyer for the victim's family in the Kerrville case approached the two instructors because he had experienced difficulty finding local experts who were willing to testify against the police.

Based on their knowledge and experience as law enforcement instructors specializing in the use of force and firearms, Kinney and Hall testified that the Kerrville police officer had used excessive force and that the Kerrville police department had failed to implement the proper policies necessary to direct the conduct of officers acting as snipers. Kinney and Hall were technically under subpoena in the Kerrville case, but they testified voluntarily. Although Kinney and Hall originally planned to receive payment for their services, they decided, shortly after their depositions and before trial, that they would decline payment. Kinney's explanation for this decision, confirmed by Hall, is that the two "felt so strongly about the incident and what had happened to Eddie Gonzales" that they concluded that "it wouldn't be right to charge."

Soon after Kinney and Hall testified in the Kerrville case, William Holda, the president of Kilgore College, received letters from some of the Police Officials threatening to stop using the ETPA for officer training. In a letter dated September 15, 1998, Kilgore Director of Public Safety Ronnie Moore told Holda that he was concerned about the instructors' recent inquiries regarding a gun confiscated by the Kilgore police, because "[i]t is a well known fact within this agency that these instructors had previously testified in another matter, against other Officers."3 Moore said that testimony offered in support of the police was "acceptable and reasonable," but Kinney's and Hall's testimony "is in direct conflict with the basic fundamentals and expectations that we have come to enjoy from Academy instructors." Moore informed Holda that "[d]ue to these circumstances, our agency will be exploring other options to provide the professional training necessary for our Officers."

In a letter dated September 29, 1998, Charles Williams, the chief of the city of Marshall's police department, also complained to Holda about the instructors' expert testimony. He wrote, "I think it is deplorable ... that instructors for our Police Academy hire themselves out as an expert witness: AGAINST law enforcement agencies." Williams stated further that "[t]he Marshall Police Department will not attend any courses taught by Mr. David Hall or Mr. Dean Kinney due to the liability they place on this Police Department." Williams attached three newspaper articles that mentioned Kinney's and Hall's roles as expert witnesses for the plaintiffs in the Kerrville case.

The summary judgment evidence submitted by Kinney and Hall includes Williams's deposition, in which he testified that he learned of Kinney's and Hall's involvement in the Kerrville case when he received, probably in August 1998, an anonymous package containing the three newspaper articles that he attached to his letter to Holda. In addition to the articles, the package contained a note telling Williams to contact Moore for more information, which Williams did shortly after receiving the package.

Williams forwarded copies of his September 29, 1998, letter and the attached articles to Moore and four of the other Police Officials, namely, Bill Young, the chief of police for the city of Tyler; Bob Green, the sheriff of Harrison County; Bobby Weaver, the sheriff of Gregg County; and J.B. Smith, the sheriff of Smith County. The set of documents that Williams forwarded to Young, which is in the summary judgment record, also included a copy of Moore's September 15 letter to Holda.

Young sent a letter to Holda on September 30, 1998, the day after he received the letters and articles from Williams. Young wrote that he was "greatly disturbed by the recent news that [Hall and Kinney] have acted in the capacity of `Expert Witnesses' to testify against another law enforcement agency and it's [sic] officers." He emphasized he was writing "not only as Chief of Police of an agency that is one of your largest customers, but also as President of the East Texas Police Chief's [sic] Association." Noting that "[i]t is not our preference to have these two instructors teach our officers and also engage in legal combat with them in the judicial system," Young stated that "[t]his matter will force us to consider alternative methods to achieve our training needs if not resolved as soon as possible."

In an attempt to address the defendants' complaints, Holda met with Moore, Williams, and Young on September 30, 1998. Also in attendance were three other law enforcement officers to whom Williams had forwarded copies of his letter to Holda, including Defendant Green. In his affidavit, Holda gave an account of this meeting that was largely confirmed by Moore, Williams, Young, and Green in their depositions. According to Holda, all four men "made it clear" (1) that "they wanted Mr. Hall and Mr. Kinney removed from the [ETPA] faculty because their testimony in the Kerrville trial created a conflict of interest with their [ETPA] responsibilities" and (2) "that they would no longer send officers and recruits to the [ETPA] for training if Mr. Hall and Mr. Kinney remained on the Academy faculty."

Defendants Moore, Williams, and Green later agreed to send students to the ETPA on the condition that their officers not be instructed by Kinney and Hall, but Holda's affidavit reports that Young continued to insist that Kinney and Hall also be removed from the ETPA faculty completely. According to Holda, "the stated reason for [the attendees'] refusals to send their officers and recruits for training by Mr. Hall and Mr. Kinney was that their testimony in the Kerrville trial criticized the law enforcement officer on trial." Testifying in Kerrville had, in the view of the defendants, "created a conflict of interest between [the plaintiffs] and law enforcement officers and the law enforcement community."

The defendants repeatedly expressed a concern that Kinney's and Hall's testimony created "conflicts of interest" and violated principles of "cooperative responsibility," but their letters and affidavits do not elaborate upon the import of those phrases. In their depositions, some of the Police Officials admitted that, in their view, an unacceptable conflict of interest exists whenever a police instructor testifies against a police officer, regardless of location and regardless of whether the instructor had trained the officer. Such a conflict does not exist, in their view, when an instructor testifies for police officers.

Shortly after the September 30 meeting, Holda met with Kinney and Hall to apprise them of the situation. Kinney and Hall assured Holda that they would never testify as experts against any officer who had been trained at the ETPA or any agency that had sent officers to the ETPA for training.4 Kinney further promised that he would not accept payment for any future work on behalf of plaintiffs in police misconduct cases. In a letter dated October 5, 1998, Holda conveyed Kinney's and Hall's assurances to the attendees of the September 30 meeting and invited them to attend another meeting along with other East Texas law enforcement officials for the purpose of discussing their concerns directly with Kinney and Hall. None of the invitees indicated an interest in such a meeting or came to the ETPA on the date suggested by Holda. Hall states in his affidavit that one of the defendants told him, on October 13, that the instructors had committed a "sin" for which they could get no forgiveness.

On October 22, 1998, the East Texas Police Chiefs Association held its quarterly meeting in Kilgore. The attendance was unusually large. All of the Police Officials were present, except for Smith, who later spoke to a deputy who had attended the meeting. The minutes of this meeting reflect that Kinney's and Hall's involvement in the Kerrville case was prominent on the agenda. Defendants Young (who was president of the East Texas Police Chiefs Association at the time), Williams, Moore, Gibson, and Weaver voiced their disapproval of Kinney's and Hall's work on behalf of the plaintiffs in the Kerrville case, and all five officials stated their intention to ensure that Kinney and Hall did not train their officers. Subsequently, the minutes state that "it was agreed that none of the Chiefs or Sheriffs present would send their officers to any classes taught by either [Kinney or Hall]." The minutes do not reflect discussion of any other complaints concerning Kinney and Hall, nor do they reflect any mention of the substance of the instructors' testimony in Kerrville. Some of the defendants admitted in their depositions that they did not know what Kinney and Hall had said in the Kerrville trial, only that they had testified against the police.

Several local media organizations reported on the controversy that had arisen between the ETPA and some of the area police agencies. On television and in print, several defendants are documented announcing their intention either to use a training institution other than the ETPA or to bar their officers from taking Kinney's and Hall's courses. Smith was quoted as stating that Kinney and Hall had "prostituted themselves" by testifying against another officer. Young was shown on television stating that he would not send officers to the ETPA until Kinney and Hall were reassigned or fired. A newspaper article quoted Holda as saying that Young was "asking me to do something he wouldn't do." According to Holda, the instructors had received excellent evaluations and their testimony was "freedom of speech." Weaver told a television reporter that Kinney and Hall had violated "an unwritten code."5

The Police Officials followed through on their threats both by cancelling enrollments in the plaintiffs' classes and by barring their officers from enrolling in the plaintiffs' courses in the future. The summary judgment evidence indicates that this boycott was quite effective. Holda stated that Kinney's and Hall's courses "were boycotted by a sufficient number of law enforcement agencies so that enrollment was insufficient to make their classes and, therefore, could not be economically continued." The boycott began in October 1998, and by November 10, 1998, all of Kinney's and Hall's basic classes had been dropped from the ETPA schedule, and many of their off-campus classes had been cancelled.

Aware that the enrollment in his courses was down and concerned that he would not be able to withstand a cut in pay, Hall resigned from the ETPA effective January 3, 1999, because he anticipated that his ETPA contract would not be renewed. He was hired as a patrol officer at the Carrollton Police Department, the job he had left to work at the ETPA six years earlier.

Kinney's ETPA teaching contract extended through the 1998-1999 academic year, and he continued to teach during that time. The boycott remained in effect, however, and the ETPA provided alternate instructors for all of Kinney's classes to ensure that the law enforcement agencies that refused to enroll their officers in Kinney's courses could still send trainees to the ETPA. Kinney stated in his affidavit that he "had minimal class time during the first few months of the 1999 calendar year" — specifically, he "had no time in the basic police academy and very little in the in-service classes." In their depositions taken in August 1999, the Police Officials stated that they continued to prohibit enrollment either in Kinney's courses or in all ETPA courses because Kinney remained on the ETPA faculty.

Kilgore College did not renew Kinney's 1998-1999 contract for his position as an ETPA instructor, but rather offered him a contract as a lecturer in the Criminal Justice Department of Kilgore College for the following academic year. The salary for this position was $15,000 less than Kinney earned as an ETPA instructor. He had not taught in the Criminal Justice Department previously, but rather had been an ETPA instructor for the entire seventeen-year period that he had been working for Kilgore College. According to Holda, "Kilgore College did not anticipate a change in the teaching assignment for either Mr. Kinney or Mr. Hall prior to the decisions by certain law enforcement agencies to boycott classes taught by Mr. Hall and Mr. Kinney."

On April 7, 1999, Kinney and Hall filed a complaint in federal district court against the seven Police Officials, their respective cities or counties of employment, and the East Texas Police Chiefs Association, alleging that the defendants had "blackballed" Kinney and Hall "in retaliation for their truthful testimony on behalf of the victim of a police shooting."6 Kinney and Hall claimed violations of: (1) their rights to testify freely under 42 U.S.C. § 1985(2), (2) their rights to free speech under the First and Fourteenth Amendments, (3) their rights to due process of law under the Fourteenth Amendment, and (4) Texas tort law. The defendants (both the Police Officials and the entities) moved for summary judgment on the merits of all four claims, and the Police Officials also asserted qualified immunity from the plaintiffs' federal claims and state official immunity from the state tort claim. The district court denied the defendants' motion for summary judgment on all grounds. Kinney, 111 F.Supp.2d at 845.

The Police Officials brought an interlocutory appeal of the district court's order denying summary judgment on their immunity defenses. A divided panel of this court affirmed the district court's order denying immunity with respect to the plaintiffs' claims under § 1985, the First Amendment, and state law, but we reversed the district court with respect to the due process claim. Kinney, 301 F.3d at 286. The en banc court granted rehearing in an order dated July 9, 2003, 338 F.3d 432 (5th Cir.2003), and we heard oral argument on September 25, 2003.

We must first address our jurisdiction to hear this appeal. This court has jurisdiction over appeals of "final decisions" of the district courts. See 28 U.S.C. § 1291 (2000). Although a denial of a defendant's motion for summary judgment is ordinarily not immediately appealable, the Supreme Court has held that the denial of a motion for summary judgment based upon qualified immunity is a collateral order capable of immediate review. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).7 Our jurisdiction is significantly limited, however, for it extends to such appeals only "to the extent that [the denial of summary judgment] turns on an issue of law." Id.

As will be explained in greater detail below, officials enjoy qualified immunity to the extent that their conduct is objectively reasonable in light of clearly established law. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Whenever the district court denies an official's motion for summary judgment predicated upon qualified immunity, the district court can be thought of as making two distinct determinations, even if only implicitly. First, the district court decides that a certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law. Second, the court decides that a genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct. According to the Supreme Court, as well as our own precedents, we lack jurisdiction to review conclusions of the second type on interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313, 319-20, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995); Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir.1999).8 Stated differently, in an interlocutory appeal we cannot challenge the district court's assessments regarding the sufficiency of the evidence — that is, the question whether there is enough evidence in the record for a jury to conclude that certain facts are true.9

We do, however, have jurisdiction to the review the first type of determination, the purely legal question whether a given course of conduct would be objectively unreasonable in light of clearly established law. See Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996) (stating that Johnson permits a defendant official "to claim on appeal that all of the conduct which the District Court deemed sufficiently supported for purposes of summary judgment met the Harlow standard of `objective legal reasonableness'"). That is, we have jurisdiction only to decide whether the district court erred in concluding as a matter of law that officials are not entitled to qualified immunity on a given set of facts. As one of our cases succinctly puts it, "we can review the materiality of any factual disputes, but not their genuineness." Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.2000).

Given the above, the plaintiffs' suggestion before the panel that we lack jurisdiction over this appeal is incorrect. We do have jurisdiction, but only to the extent that the appeal concerns the purely legal question whether the defendants are entitled to qualified immunity on the facts that the district court found sufficiently supported in the summary judgment record. See Behrens, 516 U.S. at 312-13, 116 S.Ct. 834.10

The standard of review that we apply in an interlocutory appeal asserting qualified immunity differs from the standard employed in most appeals of summary judgment rulings. Ordinarily, we would review the district court's denial of summary judgment de novo, applying the same standard as the district court. See Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir.2001). The district court, of course, applies the standard of Rule 56, according to which summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On appeal, we would ordinarily apply that same Rule 56 standard, and we would reverse the district court's denial of summary judgment if we concluded that the district court found a genuine factual dispute when, on our own review of the record, no such genuine dispute exists. But, as explained above, in an interlocutory appeal we lack the power to review the district court's decision that a genuine factual dispute exists. Therefore, we do not apply the standard of Rule 56 but instead consider only whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for purposes of summary judgment. See Behrens, 516 U.S. at 313, 116 S.Ct. 834; Jones, 515 U.S. at 313, 115 S.Ct. 2151.

Where factual disputes exist in an interlocutory appeal asserting qualified immunity, we accept the plaintiffs' version of the facts as true. Wagner, 227 F.3d at 320 ("Even where, as here, the district court has determined that there are genuine disputes raised by the evidence, we assume plaintiff's version of the facts is true...."); see also Gonzales v. Dallas County, 249 F.3d 406, 411 (5th Cir.2001) ("[O]n interlocutory appeal the public official must be prepared to concede the best view of the facts to the plaintiff and discuss only the legal issues raised by the appeal.").11 When the district court fails to set forth the factual disputes that preclude granting summary judgment, we may be required to review the record in order "to determine what facts the district court, in the light most favorable to the nonmoving party, likely assumed." Johnson, 515 U.S. at 319, 115 S.Ct. 2151. In this case, however, the district court wrote a detailed opinion that carefully identified those factual disputes that prevented summary judgment.12 In so doing, the district court also assessed the factual import of the plaintiffs' summary judgment evidence. Given the nature of our jurisdiction over an interlocutory appeal asserting qualified immunity, these factual disputes, together with the district court's concomitant assessment of what facts are supported by the plaintiffs' summary judgment evidence, necessarily play a critical role in our decision. We therefore set them forth at length:

The plaintiffs contend that the record reflects that the defendants "blackballed" or boycotted the plaintiffs' classes at the Academy because the plaintiffs broke the "code of silence."...

The defendants, on the other hand, have maintained that they refused to send their officers to classes taught by Kinney and Hall because of potential conflicts of interests....

... The record is full of evidence, both circumstantial and direct, backing each of the respective party's positions. After reviewing the record and the arguments of the parties, the court concludes that summary judgment is not appropriate and this case may proceed to trial.

Kinney, 111 F.Supp.2d at 835.

There is ample evidence currently in the record for a jury to conclude that the defendants' actions were intended to suppress the plaintiffs' rights to free speech.

Id. at 839.

There is ample evidence in the record for a jury to conclude that the defendants conspired to deter the plaintiffs from testifying in court by boycotting their business.

Id. at 840.

There are genuine issues of fact remaining in this case as to whether the plaintiffs' expert testimony could legitimately cause any disruptions in the defendants' operations. Moreover, it must be determined whether these disruptions, if any, were the result of a perceived "conflict of interest" or the "blackballing" of plaintiffs for turning against one of their own.

Id. at 843.

Plaintiffs' evidence reflects a dogged determination by the defendants to rid Kilgore College of the plaintiffs as instructors in retaliation for speaking out about excessive force by police officers. The court concludes that the acts alleged in the complaint and found in the record, if proven at trial, would violate "clearly established" law.

Id. at 845.

In reviewing the district court's conclusions concerning the legal consequences — the materiality — of the facts, our review is of course de novo. See Lemoine, 174 F.3d at 634.

The doctrine of qualified immunity seeks to strike a balance between competing social objectives, providing breathing space for the "vigorous exercise of official authority" while at the same time allowing a possibility of redress for victims of officials' abuses. See Butz v. Economou, 438 U.S. 478, 504-06, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Therefore, as against claims under federal law,13 "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. 2727. The Supreme Court noted in Harlow that in most cases, the "of which a reasonable person would have known" language in the qualified immunity standard does not add anything to the "clearly established law" requirement because "a reasonably competent public official should know the law governing his conduct." Id. at 818-19, 102 S.Ct. 2727. Not long after Harlow, the Court refined the qualified immunity standard by defining "clearly established" in a way that encompasses the "objective reasonableness" inquiry: To be "clearly established" for purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Thus, as this court has recognized, in light of the Anderson definition of "clearly established," the question "whether the ... right was clearly established at the time the defendant acted ... requires an assessment of whether the official's conduct would have been objectively reasonable at the time of the incident." Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337, 340 (5th Cir.2001).

The Supreme Court has recently provided us with additional guidance regarding the nature of "clearly established" law. It had already been known since Anderson that the "clearly established" standard does not mean that officials' conduct is protected by qualified immunity unless "the very action in question has previously been held unlawful." 483 U.S. at 640, 107 S.Ct. 3034. In the Court's latest pronouncement on the subject, Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), the Court held that one of our sister circuits had erred in defining clearly established law in such a way that qualified immunity was mandated unless the facts of past cases were "materially similar" to the conduct then being challenged. The requirement of "materially similar" facts, the Court determined, was "not consistent with our cases." Id.

Yet, at the same time, an official does not lose qualified immunity merely because a certain right is clearly established in the abstract. It is clearly established that the government may not deny due process or inflict cruel and unusual punishments, for example, but those abstract rules give officials little practical guidance as to the legality of particular conduct. Qualified immunity should not be denied unless the law is clear in the more particularized sense that reasonable officials should be "on notice that their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The central concept is that of "fair warning": The law can be clearly established "despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Hope, 536 U.S. at 740, 122 S.Ct. 2508 (internal quotation marks omitted).

"A necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Therefore, before engaging in the inquiry into whether the official unreasonably violated clearly established law, we should first determine whether the challenged conduct, viewed in the light most favorable to the plaintiff, would actually amount to a violation of federal law in the first place. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. In conducting this initial inquiry, we employ currently applicable constitutional standards. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir.2002) (en banc) (per curiam).

(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified ...

(3) ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985 (2000).

According to Kinney and Hall, the Police Officials violated the statute by conspiring to mount a campaign of economic retaliation — which took the form of boycotting Kinney's and Hall's classes and attempting to have them terminated — on account of the instructors' testimony against a police officer in the Kerrville case. The district court denied the defendants' motion for summary judgment, finding that the plaintiffs had produced sufficient evidence of an illegal conspiracy and that the plaintiffs' rights under § 1985 were clearly established at the time. Kinney, 111 F.Supp.2d at 840.

Much of the argument in the district court concerned the issue of whether the plaintiffs adduced sufficient evidence of a conspiracy. The district court's determination that there was sufficient evidence of a conspiracy is not at issue in this interlocutory appeal. Instead, the Police Officials' main argument on appeal has been the legal argument that § 1985 offers no protection to expert witnesses, but instead reaches only fact witnesses. This argument faces an immediate textual impediment, inasmuch as the statute says "any party or witness." Nonetheless, the defendants would draw a distinction between the two kinds of witnesses based upon the assertion that expert testimony, unlike fact testimony, is "readily accessible" and can easily be replaced with the testimony of another expert. Expert witnesses, in the defendants' view, therefore need less protection from intimidation. The Police Officials contend, moreover, that the enacting Congress could not have meant to protect expert witnesses because the practice of calling expert witnesses did not exist at the time that § 1985 was enacted, in the aftermath of the Civil War.

Based upon the statute's plain language, we have little difficulty in concluding that "any party or witness" includes expert witnesses. Since the language is clear on this point, there is little room for the defendants' extra-textual arguments for excluding experts. In any case, to the extent that their arguments are relevant, they fail to persuade. The defendants are simply incorrect when they claim that the enacting Congress could not have been familiar with expert witnesses. Expert witnesses have been known for hundreds of years. See Learned Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 HARV. L. REV. 40, 45-50 (1901). Leaving that to one side, the defendants are also incorrect in assuming that the statute's reach is restricted to those factual scenarios that the enacting legislature could have specifically contemplated. On the contrary, the Supreme Court has instructed that Reconstruction-era civil rights statutes are to be given "`a sweep as broad as [their] language,'" Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) (alteration in original) (quoting United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)), ensuring that their protections remain relevant to modern circumstances.14

In answer to the defendants' argument that expert testimony is easily replaceable and therefore less worthy of protection than fact testimony, we would point out that expert testimony on police procedures will not be "readily accessible" if, as happened here, police officials can prevent the persons with the relevant expertise from testifying, even in cases hundreds of miles away.15 This court's cases involving Sixth Amendment claims of witness intimidation have not suggested that experts need less protection than fact witnesses. See, e.g., United States v. Bieganowski, 313 F.3d 264, 291 (5th Cir.2002); United States v. Dupre, 117 F.3d 810, 822-23 (5th Cir.1997). In any case, the defendants' unsupported conjectures about experts' relative "need" for protection cannot displace the text's plain words: "any party or witness." We therefore hold that § 1985(2) protects expert witnesses.

We further conclude that the statute's coverage of expert witnesses was "clearly established" for purposes of qualified immunity. No reasonable official would find the terms "any ... witness" ambiguous on this point. Although a body of cases is typically required in order to give clear shape to vague constitutional provisions referring to "due process of law" or "cruel and unusual punishments," we believe that the text is itself sufficient to put reasonable officials on notice that the word "witness" includes expert witnesses.16 No case of which we are aware has even remotely suggested that § 1985(2) does not apply to experts. On the contrary, the only case addressing the issue treats it as obvious that the statute encompasses experts. See Chahal v. Paine Webber Inc., 725 F.2d 20 (2d Cir.1984). Given the clarity of the phrase "any ... witness," the absence of more cases like Chahal is hardly surprising. Nor would an official find a basis for excluding experts if he or she happened to be familiar with the law in related contexts. As we have just mentioned, no distinction between fact witnesses and expert witnesses exists in our Sixth Amendment witness intimidation cases, nor is any such distinction drawn in cases involving the absolute immunity that protects witnesses from civil liability arising from their testimony.17

The defendants make a more plausible argument when they assert that their conduct did not "injure" Kinney and Hall in their "person[s] or property" within the meaning of the statute. Pointing out that they were not contractually obligated to continue sending their officers to the ETPA or to any particular instructor for training, the Police Officials argue that Kinney and Hall lacked a property interest in the Police Officials' enrollment of their officers in Kinney's and Hall's courses. The Police Officials further contend that Kinney and Hall were at-will employees of the ETPA; thus, under precedents interpreting the Due Process Clause, the instructors lacked any property interest in continued employment at the ETPA.18 Consequently, the Police Officials argue, it would have been reasonable for them to believe that their conduct did not "injure [a] witness in his person or property" for purposes of the statute.

Regarding the question whether the plaintiffs have set forth a violation of the statute under current law, the Police Officials' argument is foreclosed by Haddle v. Garrison, 525 U.S. 121, 119 S.Ct. 489, 142 L.Ed.2d 502 (1998), in which the Supreme Court held that "third-party interference with at-will employment relationships[] states a claim for relief under § 1985(2)." Id. at 126, 119 S.Ct. 489. In Haddle, the Court reasoned that because "[t]he gist of the wrong at which § 1985(2) is directed is not deprivation of property, but intimidation or retaliation against witnesses in federal-court proceedings," the loss of at-will employment can injure a plaintiff for purposes of the statute even though he or she lacks a property interest for purposes of the Due Process Clause. Id. at 125-26, 119 S.Ct. 489. The Police Officials certainly interfered with Kinney's and Hall's employment within the meaning of Haddle. Not only did they avowedly act in concert to pull their students from the plaintiffs' classes, but, according to the district court, they also tried to have the plaintiffs fired from their jobs. See Kinney, 111 F.Supp.2d at 845 (referring to evidence of "a dogged determination by the defendants to rid Kilgore College of the plaintiffs"); see also supra at pp. 343, 344 (recounting the Police Officials' demands that Kinney and Hall be fired). The plaintiffs suffered economic injury as a result of the defendants' actions: Kinney's ETPA contract was not renewed, and Hall left the ETPA in apprehension of suffering the same fate. Holda's affidavit confirms that, before the defendants began their campaign, the ETPA anticipated renewing the plaintiffs' contracts. Coercing an employer into firing an employee is the classic case of interfering with employment relations.19

Although a precedent so commanding as Haddle is not necessary to establish that a reasonably competent official would have understood that certain conduct was unlawful, we agree with the Police Officials that it was not clearly established before Haddle that the "property" contemplated by § 1985(2) included at-will employment. The Supreme Court granted certiorari in Haddle to resolve a split among the circuits with regard to the status of at-will employment, 525 U.S. at 124, 119 S.Ct. 489, and this circuit had not clearly announced its view on the subject. Thus, given the absence of a definitive judicial interpretation of "property" for purposes of § 1985(2), coupled with the fact that at-will employment is not "property" for purposes of the Due Process Clause, we cannot conclude that § 1985(2) by its terms clearly established that third-party interference with at-will employment was injury to property. On this point, the law became clearly established only after Haddle.20

The Police Officials and Judge Barksdale argue that Haddle is irrelevant to this case because it was issued on December 14, 1998, after the events of September and October 1998, when the conspiracy began. They are mistaken in believing that the conduct that forms the basis of the plaintiffs' statutory claim took place solely in or before October 1998. Subsection 1985(3)'s cause of action specifically extends liability to any persons who "do, or cause to be done, any act in furtherance of the object of [a] conspiracy [to injure a witness in retaliation for his or her testimony]." (emphasis added).21 Kinney and Hall provided evidence that the Police Officials affirmatively committed "act[s] in furtherance" of their conspiracy to have Kinney and Hall removed from their ETPA positions long after Haddle, not just before. In particular, Kinney and Hall claim (and the Police Officials conceded in their depositions) that the Police Officials continued to prohibit their officers from enrolling in Kinney's or Hall's classes for the entire time that they were working as instructors at the ETPA; at least one of the defendants continued to boycott the entire ETPA during that time. Hall's resignation from the ETPA became effective on January 3, 1999, and Kinney's ETPA contract did not expire until September 1999. Viewing the summary judgment record in the light most favorable to Kinney and Hall, it is reasonable to infer that if the Police Officials had ceased their boycott in the wake of Haddle, Holda may have reconsidered his conclusion that it was no longer economically viable for Kilgore College to offer Kinney's and Hall's courses, and thus Kinney and Hall might not have been injured. In the end, it may be that much of the damage was done while the Police Officials still enjoyed qualified immunity; nonetheless, Kinney and Hall are entitled to pursue their claims for any damages traceable to "act[s] in furtherance" that occurred after the illegality of the Police Officials' actions become clear.

Viewing the facts in the light most favorable to Kinney and Hall, the conduct at issue in this case falls within the core of § 1985's post-Haddle meaning. There was sufficient evidence to show that the defendants agreed to retaliate against Kinney and Hall on account of the instructors' testimony against police officers in a federal case, and, as in Haddle, the retaliation took the form of interference with the instructors' employment relationship, namely by boycotting their classes and pressuring the ETPA to fire them. We thus conclude that the Police Officials' conduct was objectively unreasonable in light of clearly established law, and the district court properly denied their motion for summary judgment with respect to the § 1985 claim.

We emphasize that the statute does not create liability for every adverse action taken against a witness after the witness testifies in a federal case. In addition to the requirement that there be a cognizable injury to the witness or his property (discussed above), the statute itself contains another limiting principle: the conspirator must threaten or injure the witness "on account of his having so attended or testified" — that is, because of, and by reason of, a person's participation as a witness. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 13 (1963) (defining the phrase "on account of" to mean "for the sake of: by reason of: because of").22 The defendants have said that they had concerns about the instructors' abilities and ethics. The district court found, however, that there was sufficient evidence for a jury to conclude that the defendants acted to punish the plaintiffs because they had testified against the police. In further proceedings in this case, the defendants may be able to resolve this factual dispute in their favor.

Kinney and Hall claim that the defendants unlawfully retaliated against them for exercising their rights to free speech guaranteed by the First Amendment and made applicable to state actors by the Fourteenth Amendment. The district court evaluated the plaintiffs' claim according to the law governing First Amendment retaliation claims brought by public employees. See Kinney, 111 F.Supp.2d at 837. Acknowledging that Kinney and Hall were not employees of the Police Officials, the district court noted that in Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), the Supreme Court held that the First Amendment analysis applicable to claims by public employees also applies to First Amendment claims brought by the government's independent contractors. Having considered the relationship between Kinney and Hall and the police agencies that have long used their services, the district court concluded that Kinney and Hall are "the equivalent of ... governmental independent contractor[s]." Kinney, 111 F.Supp.2d at 841 (citing Umbehr, 518 U.S. at 674, 116 S.Ct. 2342).

As the district court recognized, a First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff's speech involved a matter of public concern, (3) the plaintiff's interest in speaking outweighed the governmental defendant's interest in promoting efficiency, and (4) the protected speech motivated the defendant's conduct. See Lukan v. N. Forest ISD, 183 F.3d 342, 346 (5th Cir.1999). The district court determined that Kinney and Hall had proffered sufficient evidence to withstand summary judgment on those elements. First, the district court found that both instructors presented evidence that they had suffered adverse employment actions by being forced to accept lower paying jobs as a result of the Police Officials' boycott. Kinney, 111 F.Supp.2d at 838. Second, the court determined that the plaintiffs' testimony regarding the use of excessive force by police officers was unquestionably a matter of public concern. Id. Third, applying the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the district court determined that the balance weighed in favor of Kinney and Hall; that is, the instructors' interest in commenting on a matter of public concern outweighed the Police Officials' interest in promoting the efficient delivery of public services. Kinney, 111 F.Supp.2d at 838.23 Fourth, the district court found that the instructors' speech motivated the Police Officials' actions. Id. Then, turning specifically to the question of qualified immunity, the court determined that the relevant law was clearly established at the time of the alleged violation and that the Police Officials' conduct was objectively unreasonable in light of that clearly established law. See id. at 840-44.

As we noted in our analysis of the plaintiffs' § 1985 claims, the threshold issue in a qualified immunity inquiry is whether, taken in the light most favorable to the party asserting the injury, Kinney and Hall have shown that the Police Officials' conduct violated their constitutional rights. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Only if we determine that the plaintiffs' evidence shows a constitutional violation do we address the question whether "[t]he contours of the right [were] sufficiently clear [at the time of the alleged violation] that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. 3034. We begin, then, by asking whether the Police Officials' conduct amounts to a violation of the plaintiffs' right to free speech. This requires us first to identify the proper First Amendment analysis.

A. What is the applicable First Amendment analysis?

The First Amendment shields speech "not only [from] direct limitations... but also [from] adverse government action against ... individual[s] because of [their speech]," including the denial of public benefits to punish individuals for their speech. Colson v. Grohman, 174 F.3d 498, 508 (5th Cir.1999).

At the outset, the Police Officials contend that their conduct is not actionable under the First Amendment because their decisions on whether and where to enroll officers are discretionary in the sense that no contract required them to enroll their officers in Kinney's and Hall's courses. This assertion overlooks the fundamental point that governmental discretion is always constrained by the Constitution. As the Supreme Court stated in Perry v. Sindermann, the locus classicus of the "unconstitutional conditions" doctrine:

For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech.

408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The county officials in Umbehr were under no duty to place contracts with the plaintiff's trash-hauling business, nor did the plaintiff have a right to those contracts; it was an at-will relationship. See Umbehr, 518 U.S. at 670-71, 116 S.Ct. 2342. The point of such cases, as we have long made plain, is the government's duty not to punish protected speech, not the citizen's supposed "right" to government patronage.24 In the instant case, the district court found sufficient evidence not only that the defendants deprived Kinney and Hall of the benefit of continued enrollment in their courses — a form of public patronage — but also that at least some of the defendants sought to have the instructors removed from the academy altogether. That no contract forbade this is irrelevant.

The Police Officials also suggest that their relationship with Kinney and Hall was too attenuated to create the requisite governmental power over the instructors. Specifically, the Police Officials argue that their conduct did not deny Kinney and Hall the benefit of employment because Kilgore College, and not the Police Officials, held the authority to refuse to renew Kinney's and Hall's contracts. We reject this line of argument. The Supreme Court has made it clear that First Amendment protection does not depend on whether the governmental action at issue is "direct" or "indirect." To hold that the Police Officials' conduct cannot constitute a First Amendment violation because they did not directly deprive Kinney and Hall of their jobs, but instead used governmental power to exert economic pressure on the instructors' employer in order to achieve that same result, "would allow the government to `produce a result which [it] could not command directly.'" Perry, 408 U.S. at 597, 92 S.Ct. 2694 (quoting Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)) (alteration in original). The defendants' "attenuation" argument is fundamentally misguided, for the situation in which the economic relationship between the government and the speaker is the most attenuated would be the case in which the speaker is an ordinary citizen with no employment-related ties to the government. In this limiting case for the defendants' attenuation argument, the First Amendment would plainly forbid the government from pressuring the citizen's employer to fire the citizen as punishment for trial testimony that the government disliked. The degree of attenuation present in a given case may well bear on causation — that is, it may be easier for a government official to fire his own employee than to persuade a contractor to fire one of its employees — but this does not change the official's First Amendment duty. We thus reject the defendants' initial arguments that the First Amendment has no bearing on this case.

While all citizens enjoy the protections of the First Amendment, the appropriate analytical framework for applying the "unconstitutional conditions" doctrine to a given First Amendment claim depends on the context in which the claim arose. As the Supreme Court explained in Umbehr, the cases form a "spectrum" ranging from, at one end, cases involving "government employees, whose close relationship with the government requires a balancing of important free speech and government interests" and, on the other end, cases involving "ordinary citizens whose viewpoints on matters of public concern the government has no legitimate interest in repressing." 518 U.S. at 680, 116 S.Ct. 2342.

Because the government has no legitimate interest in denying a benefit to "ordinary citizens" on account of their speech on matters of public concern, there is no interest balancing involved in the First Amendment analysis for "ordinary citizen" cases. Rather, the First Amendment is violated in "ordinary citizen" cases if the individual engaged in conduct protected by the First Amendment and the government took action against the person because of that protected conduct. See, e.g., Rolf v. City of San Antonio, 77 F.3d 823, 827 (5th Cir.1996). In "governmental employee" cases, by contrast, courts must be attentive to the "[t]he government's interest in achieving its goals as effectively and efficiently as possible," which interest "is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." Waters v. Churchill, 511 U.S. 661, 675, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion).

The Supreme Court set out the basic analytical structure for "governmental employee" balancing cases in Pickering v. Board of Education, 391 U.S. at 568, 88 S.Ct. 1731. In that case, the Court held that a board of education violated a teacher's First Amendment rights by discharging him in retaliation for his criticism of the board's budget decisions. Id. at 566, 574-75, 88 S.Ct. 1731. In so holding, the Court emphasized that government employees "may [not] constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public [institutions] in which they work." Id. at 567-68, 88 S.Ct. 1731. The Court also recognized, however, that "the State has interests as an employer 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." Id. Thus, explained the Court, it is necessary "to arrive at a balance between the interests of the teacher, 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 568, 88 S.Ct. 1731.

In Umbehr and its companion case, O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 S.Ct. 2353, 135 L.Ed.2d 874 (1996), the Supreme Court held that the "governmental employee" version of the unconstitutional conditions doctrine — that is, the Pickering balancing inquiry — is also appropriate where an independent contractor alleges a First Amendment violation against the government. See O'Hare Truck Serv., 518 U.S. at 720-24, 116 S.Ct. 2353; Umbehr, 518 U.S. at 677-78, 684-85, 116 S.Ct. 2361. The Court reasoned that "[i]ndependent government contractors are similar in most relevant respects to government employees." Umbehr, 518 U.S. at 684, 116 S.Ct. 2342. Specifically, the Court noted:

The government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption. And, absent contractual, statutory, or constitutional restriction, the government is entitled to terminate them for no reason at all. But either type of relationship provides a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern by those who, because of their dealings with the government, "are often in the best position to know what ails the agencies for which they work."

Id. at 674, 116 S.Ct. 2342 (quoting Waters, 511 U.S. at 674, 114 S.Ct. 1878).25

As we have explained in past cases, the determination whether the relationship between the government and an individual falls on the "governmental employee" end of the Umbehr spectrum turns on whether the relationship is sufficiently "analogous to an employment relationship." See Blackburn v. City of Marshall, 42 F.3d 925, 932 (5th Cir.1995). Applying this standard in Blackburn, we held that the Pickering balancing test was not applicable to a wrecker service owner's First Amendment retaliation claim against police officials for revoking his permission to use the police radio frequency after he criticized the police department's contracting procedures. Id. at 930, 934. The revocation of radio privileges rendered the service unable to participate in a rotation system for removing damaged vehicles from the scenes of accidents. Id. at 930. We reasoned in Blackburn that the business relationship between the wrecker service owner and the police department did not implicate employment-type ties but was instead similar to the relationship between the parties in North Mississippi Communications, another case in which we applied the "ordinary citizen" version of the "unconstitutional conditions" doctrine. See Blackburn, 42 F.3d at 934. North Mississippi Communications involved a newspaper's First Amendment claim alleging that county officials had ceased placing legal notices in the newspaper in retaliation for the newspaper's publication of editorials that criticized the board and its members. 792 F.2d at 1337. We did not apply a Pickering balancing test to the newspaper's First Amendment claim, but rather held that "it would violate the Constitution for the Board to withhold public patronage, in the form of its advertising, ... in retaliation for that newspaper's exercise of first amendment rights." Id.

The parties in this case disagree over which First Amendment analysis — Pickering balancing on the one hand or the "ordinary citizen" framework on the other — should apply to this case. Earlier, in arguing that their actions did not deny Kinney and Hall any actionable "benefits" for purposes of the unconstitutional conditions doctrine, the Police Officials emphasized their lack of employment-type ties to Kinney and Hall. In support of their argument regarding the appropriate First Amendment analysis, however, the Police Officials now characterize their relationship with the ETPA and ETPA instructors as sufficiently akin to employment to warrant a balancing of the Police Officials' interests against the free speech interests at stake in this case. Relying on North Mississippi Communications and Worrell v. Henry, 219 F.3d 1197 (10th Cir.2000), Kinney and Hall respond that the "ordinary citizen" analysis is better suited to the circumstances of the instant case than is the "governmental employee" test. In Worrell, the Tenth Circuit declined to apply a Pickering balancing test to a First Amendment claim alleging that the law enforcement defendant pressured the plaintiff's employer to rescind the plaintiff's job offer in retaliation for the plaintiff's having testified as an expert witness on behalf of a criminal defendant. See 219 F.3d at 1202, 1209-12. Rather, the Worrell court determined that the appropriate First Amendment analysis for evaluating the plaintiff's claim was the "ordinary citizen" version of the unconstitutional conditions doctrine. See id. at 1212-13.

We agree with the district court and the Police Officials that a Pickering balancing analysis is appropriate in this case. The relationship between the Police Officials and ETPA instructors such as Kinney and Hall implicates governmental interests similar to those involved in the public employment context. Law enforcement agencies have a legitimate interest in exercising discretion over the choice of the instructors who train the officers who will, in turn, carry out the agencies' public duties. Those interests include, for example, ensuring that the instructors are competent and knowledgeable, that they are adept at conveying that knowledge to officer-students, and that they maintain a good working relationship with law enforcement agency officials so that those officials can monitor the training that their officers receive. These interests are all relevant to the ultimate governmental interest that the Pickering balancing analysis is meant to protect, namely the interest "in promoting the efficiency of the public services [a law enforcement agency] performs." Pickering, 391 U.S. at 568, 88 S.Ct. 1731.

The defendants do not dispute that the instructors spoke on a matter of public concern, nor can they question (in this interlocutory appeal) the district court's factual determinations regarding causation. Accordingly, we now consider whether, under Pickering, the district court correctly balanced the First Amendment interest in protecting Kinney's and Hall's speech against the Police Officials' interests in suppressing it.

B. Was there a First Amendment violation?

The Pickering test requires us to balance the speaker's First Amendment interests against the government's legitimate interests in the efficient provision of public services. In performing this balance, we must take care not to exceed the scope of our interlocutory appellate jurisdiction. As explained earlier, see supra Parts II-III, we must accept the existence of those genuine issues of fact identified by the district court and the district court's concomitant characterization of the plaintiffs' summary judgment evidence. The question for us is whether the district court committed legal error in balancing the interests supported by the summary judgment record, viewing the record in the light most favorable to the non-movants.

Starting first with the plaintiffs' side of the scales, we conclude that Kinney and Hall present an extremely strong First Amendment interest. The weight of the First Amendment interest is, of course, not measured solely by the instructors' own personal gain, if any, from speaking.26 It is, rather, a function of the social value of that speech. See, e.g., Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.") (alteration in original) (internal quotation marks and citation omitted); Brawner v. City of Richardson, 855 F.2d 187, 192 (5th Cir.1988) (discussing, in the course of a Pickering balancing case, "the public's interest in the disclosure of misconduct or malfeasance" (emphasis added)). This court has emphasized the great First Amendment significance of speech bearing on official misconduct, "especially when it concerns the operation of a police department." Brawner, 855 F.2d at 191-92. Indeed, because individuals working in law enforcement "are often in the best position to know" about the occurrence of official misconduct, Umbehr, 518 U.S. at 674, 116 S.Ct. 2361, "it is essential" that such well-placed individuals "be able to speak out freely" about official misconduct, Pickering, 391 U.S. at 572, 88 S.Ct. 1731. Kinney and Hall, two experienced law enforcement trainers with expertise in weapons and the use of force, are ideally placed to offer valuable public comment about excessive force and the adequacy of police training and supervision, the key issues in the Kerrville trial.27 Moreover, as the district court pointed out, "[i]ndividuals will have a hard time succeeding in an excessive force case without the assistance of experts who are intimately acquainted with police procedures." Kinney, 111 F.Supp.2d at 838. Expert testimony is thus essential both in providing victims with "the only realistic avenue for vindication of constitutional guarantees," Harlow, 457 U.S. at 814, 102 S.Ct. 2727, as well as in serving § 1983's parallel deterrent function, see Owen v. City of Independence, 445 U.S. 622, 651, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). We thus conclude that Kinney and Hall have a particularly weighty First Amendment interest on their side of the Pickering scales.28

We turn next to the Police Officials' side of the Pickering balance. Stated in its most general terms, the government has an interest in "promoting the efficiency of the public services [that the governmental agency] performs." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. In the instant case, given the Police Officials' objective of providing effective law enforcement, all sides recognize that they have a strong interest in assuring the effective training of their law enforcement personnel. As the Supreme Court has made clear, however, the relevant issue is not the weight of the governmental interest considered in abstract terms; we look instead to how the speech at issue affects the government's interest in providing services efficiently. It is the speech's detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it. This is illustrated, for example, by Rankin v. McPherson, 483 U.S. 378, 381, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), a case in which an employee in a constable's office remarked, upon hearing about the attempted assassination of President Reagan, "[I]f they go for him again, I hope they get him." The Rankin Court did not consider the defendant constable's generalized interest in maintaining discipline — certainly an important interest — but the Court instead asked whether the speech at issue, given the context and the employee's duties, actually impaired office operations. "In performing the [Pickering] balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Id. at 388, 107 S.Ct. 2891. Thus, the question in this case is not whether the police have an interest in "effective training" — no one would deny that — but rather whether, on this record, they could reasonably think that interest threatened by the plaintiffs' protected speech such that the Police Officials may legitimately suppress that speech.

In recognizing that the governmental interests at stake in a particular case necessarily depend upon the facts of the case, we most certainly do not, as the dissent asserts, pervert the First Amendment analysis by changing the Pickering balancing inquiry into a question for the jury. It is for the court to determine the importance of a plaintiff's speech interest, to determine the importance of a governmental interest in efficient operations, and to balance the relative weight of each. But the governmental interests that are at stake in a particular case necessarily depend on the facts of the case. As a matter of law, the Police Officials surely have an array of weighty interests in various matters, but those interests are only relevant to this case if, as a matter of fact, a certain interest is threatened. In this case — an interlocutory appeal of a denial of summary judgment — we are not permitted to indulge in our own preferred view as to the true facts of the case, much less can we simply accept the defendant's version of the disputed facts as true. Instead, we must accept the genuine factual disputes identified by the district court and conduct the inquiry as if the plaintiffs' version is true. That is how this circuit, like other circuits, handles the substantive law of Pickering balancing in the procedural posture of summary judgment when the material facts are disputed. See, e.g., Victor v. McElveen, 150 F.3d 451, 457 (5th Cir.1998) (explaining that a sheriff was unable to show that his interests in efficient functioning of the department outweighed a deputy's speech interests, given that it was disputed whether the comment was disruptive).29 The dissent is thus incorrect if it suggests that First Amendment cases present an exception to the general rule that we do not resolve genuine factual disputes at the summary judgment stage. Put differently, engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it. Gustafson, 290 F.3d at 909-10; see Boddie v. City of Columbus, 989 F.2d 745 (5th Cir.1993) ("There was no interest to balance [in the Pickering inquiry] when this [potential] reason was rejected factually."). We do not let the governmental defendant prevail, on summary judgment, by relying on interests that, viewing the record in the non-movant's favor, are not reasonably threatened in the case.

With these principles in mind, we now turn to the Police Officials' asserted grounds for taking action against Kinney and Hall. In canvassing the possible harms caused by the plaintiffs' Kerrville testimony, we note first that some of the workplace disruptions cited by the Police Officials are simply irrelevant to the Pickering calculus. It is of course true, as the defendants point out, that the boycott strained the relationship between the ETPA and the local police agencies. In addition, the boycott may have caused tension between Holda and the plaintiffs, although Holda did defend Kinney and Hall in the media and attempt to resolve the boycott amicably. Those types of disruptions might have given the ETPA a sound reason for taking action against Kinney and Hall, but they cannot be counted in the Police Officials' favor. The disruptions just noted were caused by the Police Officials' boycott, so the Police Officials can hardly rely on those disruptions as a justification for their boycott. The question is whether the plaintiffs' testimony posed a threat to the Police Officials' ability to deliver police services, not whether the Police Officials caused a disruption in response to it.30

With regard to the question whether the plaintiffs' speech impaired the Police Officials' training operations, the district court concluded, based upon its review of the record before it, that the defendants had not identified any damage to the efficiency of their operations brought about by Kinney's and Hall's testimony in Kerrville. Kinney, 111 F.Supp.2d at 842. This finding is not itself determinative, for we (like those in dissent) are mindful of the fact that a prudent administrator will often wish to take action before a risk ripens into an actual workplace disruption. The key limitation on preemptive action, however, is that the officials' predictions of disruption must be reasonable. See Waters, 511 U.S. at 673, 114 S.Ct. 1878; Connick, 461 U.S. at 154, 103 S.Ct. 1684; Brawner, 855 F.2d at 192 (asking whether speech was "likely" to disrupt police department's operations); see also Gustafson, 290 F.3d at 911 (denying police officials' request for qualified immunity and remarking that "mere incantation of the phrase `internal harmony in the workplace' is not enough to carry the day" (internal quotation marks omitted)). "Even in situations where courts have recognized the special expertise and special needs of certain decisionmakers, the deference to their conclusions has never been complete." Waters, 511 U.S. at 677, 114 S.Ct. 1878. The reason for this rule should be obvious: Disruption is always possible, but to give deference to unfounded predictions of harm would allow the government arbitrarily to punish speech under the guise of preempting disruption. That is, it would permit the government "to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech," Rankin, 483 U.S. at 384, 107 S.Ct. 2891. The district court addressed the issue of whether disruption was a reasonable prospect, and its conclusion was that "[t]here are genuine issues of fact remaining in this case as to whether the plaintiffs' expert testimony could legitimately cause any disruptions in the defendants' operations." Kinney, 111 F.Supp.2d at 843.31 We are not free to disregard that conclusion in this appeal.

The Police Officials claim that Kinney's and Hall's testimony damaged training by creating a "conflict of interest" and "violat[ing] ... principles of cooperative responsibility [and] trust." Needless to say, reasonable officials should be concerned about conflicts of interest, and they can rightfully demand that their employees and contractors not abuse the trust the government places in them. Based upon the summary judgment record, however, the district court was unable to determine whether the Police Officials had concerns about genuine conflicts of interest or were instead, as Kinney and Hall contend, merely interested in enforcing a "code of silence" against the plaintiffs. Id. at 835, 838, 843.32 One of the main reasons for the district court's conclusion was that the Police Officials have asserted an interest in suppressing testimony that involved a police agency hundreds of miles away, well outside of the ETPA's service area. The record shows that the Police Officials see a conflict of interest whenever and wherever a police trainer testifies against police officers. Regardless of whether one uses the label "code of silence," we believe that, on this record, the defendants' asserted notion of "conflicts of interest" sweeps so broadly as to undermine its status as a legitimate government interest that can properly weigh in the Pickering balance.33 The persuasiveness of the Police Officials' asserted concern sinks further still when one considers that they not only refused to send students to Kinney's and Hall's classes — that might be a proper response to concerns about an instructor — but the Police Officials also tried to have the instructors fired, which tends to imply that the defendants were trying to do more than prevent a conflict of interest. If anything, the Police Officials' sweeping (yet one-sided) notion of "conflicts of interest" tends to impair the efficient provision of public services, inasmuch as it thwarts the important public objective of preventing police misconduct.34 As the Supreme Court counseled in Rankin, another case that arose in the law enforcement context, "[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech." 483 U.S. at 384, 107 S.Ct. 2891.

Similar comments are in order regarding the Police Officials' asserted interests in loyalty and esprit de corps, heavily relied upon by the dissent. No one would doubt but that those are important considerations, especially in a police department. Even within a police department, however, the mere assertion of interests in preserving loyalty and close working relationships does not end the debate as it would if this were a rational basis inquiry. See Branton v. City of Dallas, 272 F.3d 730, 741 (5th Cir.2001). When the dissent trumpets the need for "institutional loyalty," Jones dissent at 395, one must ask what institution the plaintiffs have wronged by testifying against distant officers that they have never met. The Police Officials' charge of disloyalty makes sense only if Kinney and Hall owe fealty to law enforcement universally. Indeed, the Police Officials' stated view is that one is disloyal — and has committed an unforgivable "sin" — whenever one testifies against law enforcement officers anywhere. A concept of loyalty that sweeps so broadly is not one that may legitimately trump compelling interests in speaking on matters of public concern.

The district court's conclusions with respect to the question of workplace disruption — or rather, the absence thereof — distinguish the instant case from a case like Tedder v. Norman, 167 F.3d 1213 (8th Cir.1999). In Tedder, the deputy director of a police academy testified as an expert witness against one of the agencies that sent trainees to the academy. It is quite understandable how this could raise real concerns, including concerns about conflicts of interest. Accordingly, the Tedder court found that the "actual disruption and potential further disruption" caused by the plaintiff's testimony justified the academy's decision to demote him. Id. at 1215. Here, in contrast, the district court concluded that there was a genuine dispute over whether the plaintiffs' activities did in fact, and reasonably could be expected to, impair proper training.

When we accept the factual disputes identified by the district court and view the disputed facts in the light most favorable to Kinney and Hall, we find that the Police Officials have not articulated any relevant, cognizable interests in suppressing the plaintiffs' speech, while Kinney and Hall have presented a strong First Amendment interest in testifying about police brutality and inadequate supervision and training. Therefore, we conclude that, at the summary judgment stage, the instructors' interest in testifying easily outweighs the Police Officials' interest in suppressing their speech, given that the speech involved unrelated police agencies hundreds of miles away.

Our decision should not be taken to mean that police agencies do not enjoy broad latitude in managing the training of their officers, including significant discretion over the choice of instructors. There are any number of legitimate reasons why police officials can stop using a particular instructor or academy; barring contractual commitments, they can do so for no good reason at all. In order to do so on a basis that penalizes protected speech, however, they must explain why their need to suppress the speech outweighs the countervailing First Amendment interest in free expression. At this early stage of the proceedings, there is a genuine dispute as to whether the Police Officials had any legitimate interests that could justify their decision to boycott and seek the termination of instructors who had testified in a distant trial against unrelated police agencies.

To summarize: Kinney and Hall spoke on a matter of public concern, and the value of their speech prevails, at the summary judgment stage, over the opposing governmental interests in the Pickering balance. Since the district court also found that Kinney and Hall established a genuine factual issue regarding whether the Police Officials boycotted Kinney's and Hall's courses and sought to have them removed from the ETPA faculty because of their testimony, Kinney, 111 F.Supp.2d at 838, 843, the facts set forth by Kinney and Hall are sufficient to state a First Amendment violation. The first step of the qualified immunity analysis is thus complete. We next turn to the question of "clearly established" law — that is, whether it would have been apparent to a reasonable officer at the time of the alleged violation that the Police Officials' conduct violated the First Amendment.

C. Are the Police Officials entitled to qualified immunity?

The First Amendment right to free speech was of course clearly established in general terms long before the events giving rise to this case. In order to defeat the Police Officials' claim of qualified immunity, however, Kinney and Hall must show that "[t]he contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Qualified immunity should not be denied unless the law is such that reasonable officials should be "on notice [that] their conduct is unlawful." Saucier, 533 U.S. at 206, 121 S.Ct. 2151. It bears repeating once more that our factual guide is the district court's view of the record, and the legal question is whether the defendants' conduct violated clearly established law measured against the facts that the district court believed the plaintiffs could prove at trial. See Behrens, 516 U.S. at 313, 116 S.Ct. 834.

There is no question that it was clearly established well before October 1998 that Kinney's and Hall's testimony was of public concern and thus was speech protected by the First Amendment.35 The Police Officials do not attempt to argue otherwise, but rather suggest that it was not clear that the First Amendment imposed any restrictions on their conduct vis-á-vis Kinney and Hall as their training instructors. This, of course, is the same argument we rejected earlier, in discussing whether Kinney and Hall had set forth evidence of conduct that would amount to a constitutional violation at all. In arguing for qualified immunity, the Police Officials contend that there was at least a reasonable legal basis for their view, even if it was ultimately wrong. More specifically, the Police Officials say that their duties with respect to Kinney and Hall were unclear because the instructors were "employees of a `disappointed bidder' — i.e., Kilgore College." The Police Officials apparently base this contention in part on the Umbehr Court's admonishment that "[b]ecause [this] suit concerns the termination of a pre-existing commercial relationship with the government, we need not address the possibility of suits by bidders or applicants for new government contracts who cannot rely on such a relationship." 518 U.S. at 685, 116 S.Ct. 2342.

Initially, we reject the defendants' attempt to characterize Kinney and Hall as employees of a disappointed bidder. Neither Kilgore College nor ETPA instructors such as Kinney and Hall were mere "bidders" in the sense that they lacked a "pre-existing commercial relationship" of the sort that the Court was concerned about in Umbehr — i.e., a relationship that the Police Officials could use to inhibit speech. See id. at 674, 116 S.Ct. 2342 (reasoning that a Pickering balancing analysis is appropriate in cases involving the government's independent contractors or providers of regular services as well as its employees because both "type[s] of relationship provide[] a valuable financial benefit, the threat of the loss of which in retaliation for speech may chill speech on matters of public concern"). The Police Officials had the power to deny Kinney and Hall significant benefits as ETPA instructors, and it is the existence of that sort of power — and not mere labels describing governmental relationships — that is relevant for purposes of the First Amendment. See O'Hare Truck Serv., 518 U.S. at 721-22, 116 S.Ct. 2353; Umbehr, 518 U.S. at 678-79, 116 S.Ct. 2361.

More fundamentally, we reject the Police Officials' suggestion that it would have been reasonable for officers in their positions to believe that they were unfettered by the First Amendment merely because their economic relationship with Kinney and Hall was non-employment and non-contractual. Both the Supreme Court and this court have explicitly rejected such reasoning. In O'Hare Truck Service, the Court rejected "the proposition ... that those who perform the government's work outside the formal employment relationship are subject to what we conclude is the direct and specific abridgment of First Amendment rights." 518 U.S. at 720, 116 S.Ct. 2353. Similarly, in Blackburn, we stated that the "assumption that only public employees enjoy the protections of the First Amendment" rested on "inverted" reasoning because "[e]very citizen enjoys the First Amendment's protections against governmental interference with free speech." 42 F.3d at 931. As we explained in Blackburn, the Supreme Court did not formulate the "governmental employee" version of the "unconstitutional conditions" doctrine in order to limit the First Amendment to the public employment context, but rather in order to take into account that "the First Amendment rights of public employees are restricted by the nature of the employer-employee relationship." Id. Indeed, the Supreme Court's decisions in Pickering, Umbehr, and O'Hare Truck Service are predicated on the assumption that although the government may have other relationships with individuals in addition to the citizen-sovereign relationship, individuals do not, as a result of such relationships, cease to be citizens with First Amendment rights that the government is obligated to respect. Thus, we have little difficulty concluding that the Police Officials would be unreasonable in failing to recognize that they had First Amendment obligations toward Kinney and Hall.