Vol. 19 No. 16- Sex Tapes, Police Officers & The First Amendment

December 6, 2004

Sometimes, just sometimes, decisions by the courts make sense. In February of this year (see Client Alert Vol. 19, No. 1, Feb.6, 2004), we informed you that the Ninth Circuit U.S. Court of Appeal ruled that San Diego P.D. could not fire an officer “for conduct unbecoming,” even though, among other things, he sold videos to the public of himself masturbating.  He appeared in an unidentified police uniform, did not identify San Diego as his employer, advertised in northern California and sold the videos on e-Bay to the general public. The Ninth Circuit stated that his form of expression was a matter of “public concern,” rather than a personal, job related issue and, therefore, was protected free speech under the First Amendment. Today, the United States Supreme Court unanimously reversed the Ninth Circuit in the case of City of San Diego v. Roe, 2004 U.S. LEXIS 8165.

The Supreme Court noted that although “a government employee does not relinquish all

First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment . a governmental employer may impose certain restraints on the speech of its employees..”  In order to be protected under the First Amendment, however, “a public employee’s speech must touch on a matter of ‘public concern.'”  It must be “something that is a subject of legitimate news interest.and of value and concern to the public at the time of publication.”  The Court held that “Roe’s expression does not qualify as a matter of public concern under any view of the public concern test” and, furthermore, “(t)he speech in question was detrimental to the mission and functions of the employer..”

The Supreme Court noted that, “(a)lthough 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.. The use of the uniform (although not identified as a SDPD 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.,” brought the profession into serious disrepute. The Court went on to state that “(w)e have little difficulty in concluding that the City was not barred from terminating Roe..”


Free speech for public employees is an area of the law fraught with problems. Decision will be made, frequently, on a case by case basis.  It will be necessary to analyze what is being said and/or expressed by the employee to determine if it is protected under the First Amendment. That requires a two step process:  (1) is the speech or expression a matter of public concern and, if yes, (2) does the interest of the employer, in performing its mission through its employees, outweigh the employee’s right to engage in speech? We urge that you secure legal advice and guidance in answering those questions – they are legal in nature, not intellectual, nor emotional.