Police Officer May Be Fired for Operating Porn Site Showing Him Having Sex with Wife
SJC Justice Oliver Wendell Holmes (later a U.S. Supreme Court Justice) once famously quipped in an 1892 case by a terminated New Bedford police officer against the Mayor: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” The decision symbolized a callous view about the free speech rights of public employees, who like most employees were considered servants of their master. The U.S. Court of Appeals for the Ninth Circuit has updated Justice Holmes’ famous line: “[the Plaintiff] may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time.”
In the case Dible v. City of Chandler, Arizona, the federal appeals court on the West Coast has ruled that the First Amendment does not prohibit a municipal police officer from being terminated for running a pornographic web site involving his wife. The case involves another sharp reminder about the limitations of off-duty conduct placed upon police officers.
The Arizona municipal police officer in question operated a web site that featured naked pictures of his wife, including footage of the wife having sex with the officer. The couple also organized meet-and-greets for fans of the site at area establishments. When the Department learned of the site, it investigated the officer, who lied during the investigation. The City fired the officer, who subsequently filed suit in federal court.
The Ninth Circuit wasted little time in rejecting the First Amendment claims of the officer. Claims under the First Amendment balance the expressive activity of the employee versus the public concern for efficient public services. The federal court placed enormous emphasis on the disruptive consequences of the officer’s activities police officers: intense and unflattering media coverage, reduced morale, and diminished recruitment, especially among women. In other words, less popular speech is afforded less coverage. (The officer argued that the Court’s ruling gave a “heckler’s veto” power to public employers). The Court also noted the unique moral expectations placed upon police officers.
The situation here is compounded by a) the public nature of the officer’s off-duty activity; b) the economic profit motive of his activity; c) the lack of express political dimension associated with the officer’s activity; and d) the false or misleading statements told by the officer during an internal investigation. A concurring opinion advocated an analytical approach more considerate of the rights of public employees. The concurring judge suggested that the termination should have been upheld due to the officer’s admitted lies, not for the content of his off-duty activity.
The Court’s decision does not mean that the same result applies to a Massachusetts municipal officer involved in the same or similar conduct. The Ninth Circuit has no authority over Massachusetts, which belongs to the First Circuit. Moreover, state free speech laws and collective bargaining agreements may be interpreted to provide greater protections to police officers.