Friday, January 30, 2004
Ninth Circuit Rules Pornographic Videotapes Made by Police Officer Deserve Free Speech Protection
By DAVID WATSON, Staff Writer
Pornographic videotapes of himself made by a San Diego police officer and sold over the Internet were constitutionally protected expressive activity, the Ninth U.S. Circuit Court of Appeal ruled yesterday.
The 2-1 decision revives a suit by the officer, who was fired after his supervisors learned of the tapes and sought damages and reinstatement.
The court said U.S. District Court Judge Judith N. Keep of the Southern District of California erred in dismissing the suit. Keep ruled that the tapes, in which the partially masked officer stripped off a generic police uniform and engaged in solitary sexual conduct, did not deal with a matter of “public concern” and were not entitled to constitutional protection.
In an opinion joined by Senior Judge Dorothy W. Nelson, Judge Raymond C. Fisher said the officer’s “expressive conduct falls within the protected category of citizen comment on matters of public concern, rather than employee comment on matters related to his personal status in the workplace.” Keep, he said, should have balanced the former officer’s free speech rights against the Police Department’s interest in “promoting the efficiency of the public services it performs.”
The officer was identified by the pseudonym John Roe under an order issued by Keep to protect his privacy. According to the allegations contained in his complaint, his supervisors discovered the videotapes, which were being sold on an adults-only section of e-Bay, when a sergeant found a uniform formerly used by the department for sale under his username, “Code3stud@aol.com.”
The sergeant searched for other items being offered for sale by “Code3stud” and found the videotapes, along with a photograph of the seller he recognized as Roe. San Diego police conducted an undercover operation in which officers not only purchased the tapes “Code3stud” was offering, but ordered and received a tape made to their specifications in which Roe issued a citation to another man before beginning his sexual performance.
Fisher said a public employee’s speech must be categorized as either speech on a metter of public concern or on matters of only of personal interest for the purpose of determining whether it is entitled to constitutional protection.
Keep should have applied a balancing test to determine whether a constitutional violation had occurred, Fisher explained.
Judge Kim M. Wardlaw dissented, arguing that the majority had announced an “astonishing new rule” in an opinion that “so dilutes the ‘public concern’ threshold...as to read it out of existence.”
“The pornographic nature of Roe’s videos is highly relevant because it establishes under our precedent that Roe’s speech is not on a matter of public concern,” she contended, adding:
“The test exists to exempt from employer discipline public employee discourse at the ‘highest’ level of protected speech— not the lowest level.”
The case is Roe v. City of San Diego, 02-55164.
Copyright 2004, Metropolitan News Company