The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted summary judgment to the City. The Court of Appeals for the Ninth Circuit reversed.
The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.
[via unanimous per curiam without oral argument]
CITY OF SAN DIEGO, CALIFORNIA et al. v. JOHN ROE concerned a police officer who sold pornographic videos on Ebay involving himself in a generic police uniform. The lower court found this to be activity on his own time and unrelated to his employment because of the generic nature of the uniform and absence of the officer taking advantage of his employer, though the listings did refer to himself being "in the field of law enforcement."
The Supreme Court overruled this latter finding, holding that there was a close enough nexus (connection) to the police department to warrant special regulations specific to the employee. I therefore question the broad headline of this interesting discussion of the case. For instance, some time ago, a fireman lost his job for morals reasons after taking some roles in a few soft porn movies. I do not know if this ruling would apply. OTOH, a police officer involved in a police themed centerfold would likely be affected.
Since the porn videos were "related" to his employment, the government had to meet a less strict test. In spelling out such a relationship, the Court noted: "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."
This is interesting, since "debased parody" suggests some sort of commentary on his profession is involved, which would be a matter of public concern. A famous case made into a movie involved a parody somewhat comparable, this one involving drunken incest in a bath-house. We are not talking an extremely high standard here, are we?
Previous case law, as summarized by the Court, held that "the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment."
In cases involving speech related to public employment, today's ruling made clear that if the speech was not related to "matters of public concern," that was the end of the matter. If the speech is some way was "detrimental to the mission and functions of the employer," the speech could be barred, even if the effect was quite trivial. The current case quite arguably was not trivial, but the rule supplied surely covered less clear-cut cases than this.
Just what does "matters of public concern" cover? The Court here supplied some hints: "to inform the public about any aspect of the [employer's] functioning or operation," "an item of political news," and more generally "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 current case "clearly" does not meet such criteria. It is this defining of "matters of public concern" that the aforementioned discussion suggests makes this case not just an amusing case of the Supremes slamming down a beyond the pale ruling by the Ninth Circuit.
I think the case is limited somewhat by the clear justification for regulating the activity involved, and the Court emphasizes how it is "designed to exploit his employer's image." All the same, to the degree the Court established a new (or clearer) regulation on speech, a summary reversal seems somewhat beyond the pale. Likewise, as I noted above, something cannot really be both a parody of a public position and totally unrelated to matters of public concern.
This would include use of sexual conduct, which arguably is "a subject of general interest and value," though perhaps not as "the Court's cases have understood that term." Thus, though the officer here might not win in the end, not even giving him a hearing goes a bit too far.
Finally, how might this apply to a few cases pending in my area relating to police officers fired for their involvement in racially offensive parade floats? First off, racial parody appears to me a much closer case than masturbation per the "public concern" test. Though the case might be stretched to apply to such cases, I would not be surprised if they were, they are really of a different caliber.
Thus, the government would have to meet the next threshold, namely how closely regulations against such speech or conduct match legitimate government interests. A hard question, especially if the officers were on the floats as private citizens, and really of a different category than this specific case.
But, that's just IHMO.