Police Department Violated Officer’s Free Speech Rights By Firing Him For Making And Selling Sexually Explicit Videos

Issue

In Roe v. City of San Diego, (2004 Daily Journal, D.A.R. 1066 9th Cir. (Cal) January 29, 2004), the Ninth Circuit Court of Appeals addressed the issue of whether a police department violated an officer’s right to free speech when it discharged him for making and selling sexually explicit videotapes of himself.

Facts

John Roe, a police officer with the City of San Diego Police Department, sold videotapes on Ebay depicting himself “with his face partially masked taking off a generic police uniform and masturbating.” He also contracted with an undercover officer to produce a custom-made videotape depicting similar acts. Officer Roe did not make the tapes while on duty, on Police Department premises, or with any City or Police Department resources; nor did Officer Roe identify himself as a member of Police Department. After discovering Officer Roe’s activities, Police Department fired him for violating department policies. Officer Roe sued, claiming Police Department violated his constitutional right to freedom of speech. The federal district court dismissed his lawsuit early in the proceedings, and Officer Roe appealed to the Ninth Circuit Court of Appeals.

Appellate Court Decision

A public employee’s speech is protected if the employee speaks “as a citizen upon matters of public concern.” Therefore, the Court of Appeals had to determine whether the videos, which were made and sold outside the workplace and said nothing about the employer or any government agency, are “matters of public concern.”

The Court concluded they are because Officer Roe directed his activities – “as crude as they may appear” – to a segment of the general public and his activities had nothing to do with his employment. In reaching this conclusion, the Court established the following rule: “[W]hen the employee’s speech is not about his government employer or employment, is directed to a segment of the general public, and occurs outside the workplace, that speech satisfies the public concern test because such speech is not related to the employee’s status in the workplace.”
The Court therefore concluded that the district court erred in dismissing Officer Roe’s lawsuit. However, when the case goes back to the district court, Police Department may defend its firing of Officer Roe by showing that its interest in providing efficient public services outweighs Officer Roe’s expressive activity, or by showing that it would have fired Officer Roe regardless of his expressive conduct.

Legal Alert Email Disclaimer

Legal Alerts are published by Kronick Moskovitz Tiedemann & Girard as a timely reporting service to alert clients and other friends of recent changes in case law, opinions or codes. This alert does not represent the legal opinion of the firm or any member of the firm on the issues described, and the information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney with whom you normally consult.