The majority and dissent argued furiously about how to interpret the Supreme Court’s rule that public employees are protected from disciplinary action only for speech on matters of “public concern.” A majority held that the officer’s videos fell within this category, a conclusion that left the dissenter figuratively sputtering in outrage.
The opinion by Circuit Judge Raymond C. Fisher identifies the police officer as “John Roe” to preserve confidentiality. A seven-year veteran of the force, Roe was fired after he was found selling what Fisher described as “sexually explicit, non-obscene videos on the adults-only section of eBay. The videos depict Roe alone, with his face partially masked, taking off a generic police uniform and masturbating.”
Fisher’s opinion shows the lengths to which the San Diego Police Department went to pursue its case against Roe.
During the summer of 2000, Roe’s supervisor, Sergeant Robert Dare, searching on eBay, came across a tan uniform formerly used by the San Diego Police Department offered for sale by a person with the eBay username Code3stud@aol.com. Searching for other items for sale by Code3stud, Dare found that some were in the adults-only section. Several of the online listings contained Code3stud’s picture, and Dare recognized him as Roe.
Dare brought his discoveries to the attention of other police supervisors and the department’s Professional Standards Unit began an investigation. An undercover investigator, Sergeant Alan Clark, purchased two items from Roe––a pair of white briefs and a videotape depicting Roe masturbating. Two months later, Clark, again acting undercover, asked Code3stud to produce a custom-made videotape of himself issuing another man a citation and then masturbating. Code3stud agreed, produced the video, and sold it to Clark.
The court’s opinion takes pains to note: “All aspects of the production and sale of the videotapes were conducted while Roe was off-duty and away from his employer’s premises and did not involve the use of any City or Department resources. None of the items Roe offered for sale identified Roe as an employee of the City or Department or as being affiliated with them in any way He described himself in his eBay seller’s profile as living in ‘Northern California’ and being ‘in the field of law enforcement.’ He directed all payments to ‘S. Shatswell,’ a fictitious name, and utilized a post office box address in Northern California.”
In October 2000, Clark confronted Roe who readily admitted to the off-duty conduct. When Clark completed his investigation in late November, he concluded that Roe had violated three department policies––against “Unbecoming Conduct,” against “Immoral Conduct,” and against “Outside Employment.” Roe was ordered “to cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. Mail, commercial vendors or distributors, or any other medium available to the public.”
Although Roe removed all the items he had for sale on eBay, he did not revise his seller’s profile, which described the videos he had sold. In early 2001, Dare cited Roe for violating department policy requiring “Obedience to Lawful Orders,” and, by June, Roe had been terminated.
The court’s opinion noted that there was no evidence of unsatisfactory performance and that Roe had received one letter of commendation.
U.S. District Judge Judith N. Keep dismissed Roe’s complaint against the city, concluding that his videos did not address a matter of “public concern” so Roe’s constitutional rights were not violated by the discharge.
Under Supreme Court cases dating back to the 1960s, public employees have been afforded protection from disciplinary action on speech related to “matters of public concern,” unless the speech disrupts the operation of the employer’s agency. By contrast, public employee speech that is not on a matter of “public concern” but rather work-connected and involving the employee’s personal grievances does not enjoy any special First Amendment protection.
On appeal, Fisher found that the “public concern” test can easily be misconstrued to include only speech about public affairs or political controversies. He concluded that the Supreme Court really meant only to distinguish between purely personal speech on work-related issues of no general concern to the public and, by contrast, all other speech.
He noted that another federal court almost 20 years ago found First Amendment protection for a police officer discharged for selling sex videos, and particularly emphasized that Officer Roe’s eBay profile and videos did not identify him as a San Diego Police Department employee.
Fisher also relied on a more recent Supreme Court decision that voided a regulation banning federal employees from receiving honoraria for public speeches. In that case, the court held that public employee speeches on matters other than the internal affairs or the public policies of their own departments enjoyed First Amendment protection.
Fisher pointed out that this ruling does not end the matter, since the trial court will next have to consider the arguments of both parties about whether the legitimate concerns of the police department outweigh Roe’s free speech interests here. But Roe’s lawsuit has passed the first hurdle to success.
In an angry dissent, Circuit Judge Kim M. Wardlaw argued that the majority had misconstrued the “public concern” test, insisting that it required speech on some matter of broader public interest, or at least expressive conduct of artistic value. (Foolishly, Roe had conceded that his videos had no political content nor artistic value, a question perhaps best left to connoisseurs of gay pornography.) Wardlaw argued that the point of providing this kind of First Amendment protection to public employees was essentially to protect whistle-blowers and to preserve the rights of public employees as citizens to participate equally in public debate.
San Diego can petition the circuit court for rehearing before a larger panel, or could try to bring the case to the Supreme Court. One wonders whether the justices would feel compelled to view Roe’s videos in order to determine whether they involved matters of public concern.