Tuesday, December 7, 2004
Police Officer’s Pornographic Videotapes Do Not Merit Free Speech Protection, U.S. High Court Rules
By DAVID WATSON, Staff Writer
Pornographic videotapes of himself made by a San Diego police officer and sold over the Internet were not constitutionally protected expressive activity, the U.S. Supreme Court unanimously ruled yesterday.
The ruling reverses a 2-1 decision by the Ninth U.S. Circuit Court of Appeals, which said in January that U.S. District Court Judge Judith N. Keep of the Southern District of California erred in dismissing a suit filed by an officer identified only as John Roe.
The officer, whose identity was protected under an order issued by Keep, was fired after his San Diego Police Department supervisors learned of the tapes. He sued, seeking damages and reinstatement.
The high court said the Ninth Circuit was wrong to find that that the tapes, in which the partially masked officer stripped off a generic police uniform and engaged in solitary sexual conduct, dealt with a matter of “public concern” and were entitled to constitutional protection.
In an opinion joined by Senior Judge Dorothy W. Nelson, Judge Raymond C. Fisher said in January that 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.”
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.”
According to the allegations contained in the former officer’s 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. The Ninth Circuit’s opinion gave the username as “Code3stud@aol.com,” but the high court’s per curiam opinion yesterday cited it as “Codestud3@aol.com.”
In police shorthand, a “Code 3” is an emergency call requiring the use of flashing lights and sirens.
The sergeant searched for other items being offered for sale under the same username 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 being offered, but ordered and received a tape made to their specifications in which Roe issued a citation to another man before beginning his sexual performance.
Citing United States v. National Treasury Employees Union, 513 U.S. 454 (1995), Fisher said a public employee’s speech must be categorized as speech on a matter of “public concern” unless it consists only of “comment on matters related to his personal status in the workplace.”
But the high court said yesterday that Fisher’s reliance on NTEU was “seriously misplaced.” That case, the court pointed out, involved speech that was “unrelated to the employment and had no effect on the mission and purpose of the employer.”
Noting that Roe’s e-Bay profile identified him as working in law enforcement, the court declared:
“Although Roe’s activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as in the field of law enforcement,’ and the debased parody of an officer performing
indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute.”
The justices said they had “no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern under any view of the public concern test,” adding:
“He fails the threshold test and Pickering v. Board of Education, [391 U. S. 563 (1968)] balancing does not come into play.”
The court went on to say:
“Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin v. McPherson, [483 U. S. 378 (1987)], where one coworker commented to another co-worker on an item of political news. 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.”
The case is City of San Diego v. Roe, 03-1669.
Copyright 2004, Metropolitan News Company