To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
ROE V. CITY OF SAN DIEGO POLICE DEPARTMENT ET AL.
February 6, 2004
Ninth Circuit Holds that Police Officer’s Right to Publicly Sell Video Tapes of Himself Masturbating is Deserving of some First Amendment Protections.
Roe, a San Diego Police Officer, was discovered selling pornographic video tapes over E-bay in which videotaped himself stripping off a generic police uniform while masturbating. After investigation by the Department, Roe was terminated on the grounds of Conduct Unbecoming, Immoral Conduct, and Improper Outside Employment. Roe challenged the Department’s actions on First Amendment grounds claiming that his expressive activity related to matters of public concern and was protected by the United States Constitution. The District Court dismissed Roe’s claim finding that Roe’s speech did not touch on a matter of “public concern” and, therefore, was not protected under First Amendment.
The Ninth Circuit, however, in a 2-1 ruling, disagreed and reversed the lower court. The
Ninth Circuit held that Roe’s expressive conduct fell within a protected category of speech rather than, as the City of San Diego argued, merely employee comments on matters related to his personal status in the workplace, which are unprotected under the First Amendment.
Generally, in order to state a claim against a government employer, for violation of the free speech clause of the First Amendment, the employee must establish that he or she engaged in “protected speech,” that, as a result of that speech, the employee suffered an “adverse employment action,” and that the speech was a “substantial or motivating factor” for the adverse employment action. If the employee is able to establish these elements, the burden shifts to the public employer to prove that the “the free speech interests in Roe’s expressive activity are outweighed by the Department’s interest in promoting the efficiency of the public services it performs through its employees”(otherwise referred to as the “Pickering Balancing Test”),(2) or that the employer would have reached the same decision even in the absence of the employee’s protected speech.”(3)
In finding that Roe’s expressive conduct fell within a protected category under the First Amendment, the Ninth Circuit focused on the content, form and context of the expressive activity. The Court determined that Roe’s expressive conduct was “not about private personnel matters, was directed to a segment of the general public, occurred outside the workplace and was not motivated by an employment-related grievance.”
With respect to the graphic nature of the videos, the Ninth Circuit commented, “Roe’s videos are indeed crude and sexually explicit, but they are not obscene under the Supreme Court precedents and thus would be entitled to some protection under the First Amendment.” Indeed, said the Ninth Circuit, “if Roe were simply a member of the general public rather than a public employee, there is no doubt that his sexually explicit but not obscene videos would be entitled to some measure of First Amendment protection against government censure.”
The Court held that Roe’s choice of “medium and audience” (a public and widely used internet auction site) further indicated that he was speaking as a member of the general public rather than as an employee, thus distinguishing his speech from other unprotected forms. The Court further placed emphasis on the fact that Roe used an alias, a false address in Northern California, and did nothing to identify himself as a San Diego police officer, in making its determination that Roe’s speech did not “have any relevance to [his] employment.”
Based upon the lower court’s failure to properly identify Roe’s speech as falling within the protected category of speech relating to matters of public concern, the Ninth Circuit held that the lower court abused its discretion in failing to apply the “Pickering Balancing Test” to facts presented in Roe’s case.
HOW THIS AFFECTS YOUR AGENCY?
This case may have profound significance for California law enforcement management and its ability to discipline officers for “off-the-job, non-work related” expressive activities and/or speech. As such we will monitor it as it returns to the lower court and keep you informed of its disposition and final legal implications for your department.
1. 2004 U.S. App. LEXIS 1330
2. Pickering v. Bd. of Educ., (1968) 391 U.S. 563, 568.
3. See Generally, Coszalter v. City of Salem (9th Cir. 2003) 320 F.3d 968, 973; and Mt. Healthy City Sch. Dist. Bd. of Educ. V. Doyle, (1996) 518 U.S. 668, 675-66.