The naked truth, the Supreme Court says, is that the Constitution’s free speech guarantee doesn’t protect a police officer who used the Internet to sell videotapes of himself stripping off his uniform and pretending to write tickets.
The court traditionally has been very protective of speech rights. But justices had no sympathy Monday for a former San Diego officer who uses the Internet name “Code3stud,” a play on words incorporating the term for an emergency police call.
The policeman, identified in court papers only as “John Roe,” contended his free speech rights were violated when his bosses learned of his outside activities, gave him a warning, then fired him.
"A constitutional no-brainer'
The Supreme Court ruled against him without even hearing arguments. The justices issued an unsigned opinion that found his speech “was detrimental to the mission and functions of the employer.”
“It’s unanimous, a signal that the court thought it was a constitutional no-brainer,” said free speech expert Keith Werhan of Tulane University in New Orleans. “This has an important meaning, but I don’t think the court is retreating on First Amendment protection in a serious way.”
The decision could make it harder for some government employees to win free speech cases, he said, because it seems to set a higher threshold for claims.
At issue was the scope of the First Amendment, which protects government workers if their speech involves a “public concern” rather than personal, job-related issues such as salary or promotions. More than 20 million Americans work for state, local and federal governments.
Lower court ruled in Roe's favor
In overturning a lower court ruling in Roe’s favor, justices said the officer’s “expression does not qualify as a matter of public concern under any view.”
Roe was fired in 2001 after his supervisor discovered the sex videos were being sold on eBay, the Internet auction site. The videos showed Roe, a seven-year veteran, removing his police uniform and then masturbating. In one video, he pretends to issue a traffic citation. Roe also sold men’s underwear and police uniforms online.
The high court seemed particularly disturbed by his use of a uniform, although it was not his official San Diego outfit, and said “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.”
Roe claimed in his lawsuit that his activity was a “public concern” because the sex videos were made while he was off-duty and away from the workplace, were marketed to a public audience and did not identify him as a San Diego officer.
Police officials argued in their appeal that only issues of political or social importance should be constitutionally protected.
Roe won at the 9th U.S. Circuit Court of Appeals in San Francisco, widely considered the country’s most liberal appeals court, which reasoned the First Amendment was designed to protect the expression of ideas that the “overwhelming majority of people might find distasteful or discomforting.”
Employee speech hazy area
The Supreme Court has ruled previously in free-speech cases for flag-burners, child pornographers, white supremacist groups and sexually explicit magazines.
Those cases, however, did not involve employee speech, which has not been given clear-cut protection. Usually, courts balance a worker’s speech rights against the government’s interests. In the Roe case, justices said workers are not always entitled to have such an analysis.
In a separate free speech case Monday, the court rejected an appeal from an offshoot of the Ku Klux Klan that challenged a New York state ban on protesters wearing masks at public gatherings. Members of the Church of the American Knights of the Ku Klux Klan argued they had a right to hold rallies wearing white robes, hoods and masks.
The police case is City of San Diego et al. v. Roe, 03-1669.