Jottings By An Employer's Lawyer

Monday, December 06, 2004

Why the Supreme Court is Over the 9th Circuit - Police Masturbation Video Not OK

Sometimes (often?) you wonder about the collective wisdom of the 9th Circuit. Fortunately, the Supreme Court doesn't have much reluctance in bringing them back to earth when needed. Today is just such a case. City of San Diego v. Roe (U.S. 12/6/04) [pdf]. Perhaps marking the first intersection of e-bay, employment and the highest court, the Court today held that the City of San Diego had not violated the free speech rights of a former police officer who had the temerity to:
make a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His user name was ',' a word play on a high priority police radio call. 356 F. 3d 1108, 1110 (CA9 2004).
Following a fellow officer finding a reference to a SD police uniform for sale on e-bay and searching for other references by 'codestud3', an internal affairs investigation was begun. During the investigation:
in response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating.
What happened to a good old fashioned bribe?

Besides being amazed about the commercial viability of a market for his product, I am surprised (but less amazed) that the 9th Circuit found, "Roe's conduct fell within the protected category of citizen commentary on matters of public concern." Apparently, "central to the Court of Appeals' conclusion was that Roe's expression was not an internal workplace grievance, took place while he was off-duty and away from his employer's premises, and was unrelated to his employment."

In its per curiam opinion, without awaiting the need for oral argument the Supreme Court put this one squarely where it belonged:

Although the boundaries of the public concern test are not well-defined, Connick provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. ... In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. Id., at 143, n. 5. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and Time, Inc. v. Hill, 385 U. S. 374, 387?388 (1967). These cases make clear that public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. ...

Applying these principles to the instant case, there is 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. He fails the threshold test and Pickering balancing does not come into play.

Connick is controlling precedent, but to show why this is not a close case it is instructive to note that even under the view expressed by the dissent in Connick from four Members of the Court, the speech here would not come within the definition of a matter of public concern. The dissent in Connick would have held that the entirety of the questionnaire circulated by the employee "discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which . . . an elected official charged with managing a vital governmental agency, discharges his responsibilities."461 U. S., at 163 (opinion of Brennan, J.). No similar purpose could be attributed to the employee’s speech in the present case. Roe’s activities did nothing to inform the public about any aspect of the SDPD’s function-ing or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker 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.

SCOTUS has its usual quick and incisive look at the decision, here. And they raise a concern that in the second part of the opinion, from which I quote above, the Court may arguably have gone too far. While I certainly appreciate the concerns about narrowing the breadth of discussions, you have to admit in a very non-scholarly fashion - police, masturbating --- PLEASE!

UPDATE: For more information, including a 'picture' of Officer Roe, check out the news article in the Gay City News shortly after the 9th Circuit decision.

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