The decision will bring an end to a flurry of recent activity by Supreme Court justices in the case, including having it scheduled for discussion four times within the last three months and requesting the full court records from both the Ninth Circuit Court of Appeals and the Southern District of California.
Known only by the alias John Roe, the officer was fired in June 2001, after his superiors discovered an older version of a San Diego police uniform for sale on eBay by a user named "Code3stud@aol.com," and subsequently traced it to auctions of several videos featuring a man stripping out of a non-descript officer’s uniform and masturbating.
After an undercover investigation was conducted in which police officers purchased a pair of used men’s briefs and then requested Roe to make a video featuring him issuing a citation to another man and then masturbating, Roe was confronted by his superiors.
The department said he was fired for unbecoming conduct, immoral conduct, outside employment and disobeying lawful orders.
Roe contends that his outside employment neither identified him as a San Diego police officer nor used any type of department material in the videos. He alleges that he was terminated solely for the content of the videos in violation of his First Amendment rights.
The Ninth Circuit ruled that the case revolved almost entirely on the issue of whether Roe’s speech was spoken “as a citizen upon matters of public concern.”
The court found that the department’s argument that matters of public concern should be definated as speech that enlightens the public on issues of political or social importance was unsound.
“Even the expression of ‘ideas that the overwhelming majority of people might find distasteful or discomforting’ is protected by the First Amendment,” the court ruled. “Roe’s videos are indeed crude and sexually explicit, but they are not obscene under Supreme Court precedents and thus would be entitled to some protection under the First Amendment.”
Previous cases heard before Supreme Court indicate that, if the court agrees to hear Roe’s case, chances are good it may rule in favor of him.
In United States vs. Treasury Employees Union, the Supreme Court ruled that the activities of government employees were protected if they were addressed to a public audience, made outside the workplace, and involved content largely unrelated to their employment.
The case is City of San Diego, California, et al. vs. John Roe, Case No. 03-1669.