“The speech in question was detrimental to the mission and functions of the employer,” the Court wrote in its unanimous opinion. “The use of the uniform, the law enforcement reference in the website, the listing of the speaker as ‘in the field of law enforcement,’ and 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.”
Identified in court papers as “John Roe,” the officer was fired in June 2001, after superiors discovered an older version of a San Diego police uniform for sale on eBay by a user named "Code3stud@aol.com", and traced the name to auctions of videos that featured a man stripping out of a non-descript officer’s uniform and masturbating.
One of the superiors recognized Roe and the department began conducting an undercover investigation during which police officers purchased a pair of used men’s briefs and requested Roe make a video showing him issuing a citation and masturbating.
The department said he was fired for conduct unbecoming of an officer, outside employment, immoral conduct and disobeying lawful orders.
Roe contended that he never identified himself as a member of the San Diego police force in any of the videos and alleged that he was terminated solely for their content.
Initially brought in U.S. District Court, summary judgment was granted to the city after the judge decided that selling sexually explicit videos did not qualify as a matter of public concern. The Ninth Circuit Court of Appeals reversed the lower court’s opinion.
The Supreme Court reversed the judgment of the Court of Appeals without even hearing oral arguments in the case.
“There is no difficulty in concluding that Roe’s expression does not qualify as a matter of public concern under any view of the public concern test,” ruled the court.
Weighing Roe’s situation against Connick vs. Myers, a 1983 Supreme Court case in which an assistant district attorney had circulated an intraoffice questionnaire on office policy, the court decided that Roe’s films came up wanting.
“No similar purpose could be attributed to the employee’s speech in the present case,” ruled the court. “Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin, where one coworker commented to another coworker on an item of political news. Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image.”
