Porno Cop’s Firing Upheld

Without reviewing briefs, hearing arguments, Supreme Court upholds San Diego cop’s dismissal

In a quick, unanimous ruling, the U.S. Supreme Court held on December 6 that the San Diego Police Department did not violate the free speech rights of an officer discharged because he sold gay porn videos featuring himself on the adults-only part of eBay’s auction Web site.

Taking the unusual step of ruling without receiving briefs or hearing oral arguments, the court issued its ruling based on the City of San Diego’s petition for review of a contrary ruling by the U.S. Court of Appeals for the 9th Circuit, based in San Francisco.

As reported in Gay City News on February 12, a sharply divided three-judge panel of the 9th Circuit ruled on January 29 that the police officer, identified in court papers as “John Roe,” could pursue his First Amendment claim against the City of San Diego. An angry dissenting opinion, now vindicated by the unanimous Supreme Court ruling, argued that the majority of the panel had misinterpreted basic principles of free speech law as applied to public employees.

According to the court opinions, “Roe” made extra money by selling used San Diego Police Department uniforms on eBay, a practice that came to the attention of the police department when another officer discovered that somebody named Code3stud@aol.com was dealing the uniforms online. The officer, Robert Dare, then looked for other items for sale by Roe, which led him to eBay’s adults-only section where he found videos for sale depicting Roe masturbating. The matter was referred to a department investigator, who, posing as a potential customer, got Roe to produce another porn video in which Roe issues a traffic citation to a civilian and then masturbates in front of the civilian.

The department confronted Roe with these discoveries and demanded that he end these business activities. Roe removed the items from sale on eBay, but did not revise his online seller’s profile and was discharged for insubordination. Roe’s lawsuit claimed that because none of the material was “obscene” under current definitions, his activities were protected free speech under the First Amendment.

The Supreme Court has generated a significant body of cases concerning free speech rights of public employees, recognizing that public employees whose speech might cause disruption or undermine the public credibility of their employer—which is the government—may not enjoy the same degree of protection that a private citizen would enjoy from government interference with or retribution against controversial speech.

The Court’s rulings have drawn a line between speech on matters of public concern, which is held to lie at the “core” of First Amendment protection, and speech on purely personal matters, on which public employees enjoy no special protection. If a government agency wants to take action against an employee whose speech enjoys First Amendment protection, the employer must show that the speech interfered with the employer carrying out its governmental functions, under a “balancing test” that the Supreme Court developed in a case called Pickering v. Board of Education, involving the discharge of a public school teacher for controversial testimony he gave at a public hearing about educational policy. By contrast, a government employer could take action against an employee for speech that does not involve matters of public concern on the same basis as a private employer, whose actions are not covered by the First Amendment.

In Roe’s case, the federal trial judge found that his pornographic undertakings did not constitute communication on matters of public concern, so the police department could react to it the same way a private employer would, terminating him if it decided that it was in the interest of the police department to do so.

By contrast, two judges on the 9th Circuit appeals panel believed that the Supreme Court’s line between protected and unprotected speech should be interpreted somewhat differently. Since Roe’s products enjoy the same First Amendment protection as any other non-obscene film would enjoy, they felt that his production and sale of what he advertised on eBay falls in the category of protected First Amendment activity, and his lawsuit should not have been dismissed. Had Roe’s 9th Circuit appellate victory stood, at a subsequent trial the San Diego Police Department would have had a chance to show that he merited discharge anyway because of his insubordination and because the negative impact his activities could have on the police department outweighed any incursion on his free speech rights.

The Supreme Court rejected this analysis.

“Pickering did not hold that any and all statements by a public employee are entitled to balancing,” wrote the Court. “To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices.”

Whereas the 9th Circuit panel majority had emphasized that Roe’s “speech” in this case constituted communicative or expressive activity, the Supreme Court emphasized that it did not involve matters of public concern.

“Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation,” wrote the Court. “Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image. The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court’s cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.”

This is the end of the line for Roe’s lawsuit. Code3stud is officially retired from the fray.

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