CITY OF SAN DIEGO v. ROE

Legal Principle at Issue

Did the city of San Diego violate the First Amendment right to free speech by firing a police officer after he made and sold online a video showing him engaging in sexually explicit acts?

Action

Reversed. Petitioning party received a favorable disposition.

Facts/Syllabus

Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay. The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including official uniforms of the San Diego Police Department, and various other items such as men's underwear. Roe's eBay user profile identified him as employed in the field of law enforcement. Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across an official SDPD police uniform for sale. He searched for other items the same seller offered and discovered listings for videos depicting the objectionable material. The captain notified the SDPD's internal affairs department, which began an investigation. In response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating.

The investigation revealed that Roe's conduct violated specific SDPD policies, including conduct unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to "cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U. S. Mail, commercial vendors or distributors, or any other medium available to the public." After discovering Roe's failure to follow its orders, the SDPD—citing Roe for the added violation of disobedience of lawful orders—began termination proceedings. The proceedings resulted in Roe's dismissal from the police force.

Roe brought suit in the District Court alleging that the employment termination violated his First Amendment right to free speech. In granting the City's motion to dismiss, the District Court decided that Roe had not demonstrated that selling official police uniforms and producing, marketing, and selling sexually explicit videos for profit qualified as expression relating to a matter of "public concern" under this Court's decision in Connick v. Myers (1983).

In reversing, the U.S. Court of Appeals for the Ninth Circuit held Roe's conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Ninth Circuit's conclusion was that Roe's expression was not an internal workplace grievance, took place while he was off duty and away from his employer's premises, and was unrelated to his employment.