High Court Upholds Firing of San Diego Police Officer

Times Staff Writer

The 1st Amendment’s free speech protection does not shield public employees whose personal expressions and off-duty actions offend their employes, the Supreme Court said Monday in upholding the firing of a San Diego police officer who sold sexually explicit videos of himself over the Internet.

In a 9-0 decision, the justices overturned the U.S. 9th Circuit Court of Appeals, which had said a public employee’s “off-duty, non-work-related speech” usually could not be the basis for punishing him.

The government “may impose certain restraints on the speech of its employees ... that would be unconstitutional if applied to the general public,” the high court said.


“Needless to say, we’re pleased” with the decision, said Penny Lea Castleman, a San Diego city attorney. A police officer selling sexually oriented videos “is just not the image we want to portray.”

Separately, the justices turned away a free speech claim by members of the Ku Klux Klan who maintained that they had a right to rally in public with hoods over their faces.

A long-standing New York City anti-loitering law makes it illegal for people to “congregate in a public place ... being masked or in any manner disguised by unusual or unnatural attire.” The ordinance exempts a “masquerade party or like entertainment.”

Lawyers for the American Civil Liberties Union challenged the law on behalf of the Klan, but the U.S. 2nd Circuit Court of Appeals upheld it. Its judges said the Klan members could identify themselves by wearing their white robes and hoods, but they were not free to cover their faces with masks.

“While the 1st Amendment protects the rights of citizens to express their viewpoints, however unpopular ... the individual’s rights to speech must always be balanced against the state’s interest in safety and its right to regulate conduct that it legitimately considers potentially dangerous,” the New York-based appeals court said.

The ACLU, in its appeal on the Klan’s behalf, said: “Even the most reviled members of our society are entitled to the fair and evenhanded application of the law.”

But in a one-line order, the high court turned away the case of Church of the American Knights of the Ku Klux Klan vs. Kelly.

The eight-page summary opinion in the San Diego case quickly disposed of a dispute that the justices, during oral arguments, apparently had no wish to hear about at length. It concerned, as the court said, a San Diego officer who made “a video showing himself stripping off his police uniform and masturbating.”

The officer, identified only as John Roe, advertised the tape on the adults-only section of EBay. His supervisor, Sgt. Robert Dare, learned of the videos when he discovered that a San Diego police uniform was for sale on EBay. Following up, Dare discovered the videos and found that the performer was one of his officers.

Roe’s supervisors said his actions violated police department policies and was conduct unbecoming an officer. He was warned he must cease “displaying ... or selling any sexually explicit materials.”

Although he removed the police uniforms from his list of items for sale, Roe continued to make available his videos. The department fired him in June 2001.

He sued in federal court. A judge, finding that the sexually explicit videos were not a form of speech protected by the 1st Amendment, ruled for the city.

The 9th Circuit disagreed in a 2-1 ruling and revived Roe’s free speech claim. Judge Raymond C. Fisher reasoned that because the officer’s videos were made on his own time and had nothing to do with his police work, they should be protected as free expression. Judge Dorothy W. Nelson agreed.

In dissent, Judge Kim M. Wardlaw said she could not go along with “an astonishing new rule” that “produces such an absurd result.”

The Supreme Court has taken a narrow view of the free speech rights of public employees.

In the past, the court has said government workers have no general free speech right that protects them in regard to personal expressions or off-duty activities.

“There is no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern,” the justices said in City of San Diego vs. Roe. “The debased parody of an officer performing indecent acts ... was detrimental to the mission and functions of the employer.”

“We have little difficulty in concluding that the city was not barred from terminating Roe,” the court concluded.