SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
03–1669. Decided December 6, 2004
petition for a writ of certiorari is granted, and the judgment of the Court of
Appeals is reversed.
John Roe, a
Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across an official SDPD police uniform for sale offered by an individual with the username "Codestud3@aol.com." He searched for other items Codestud3 offered and discovered listings for Roe's videos depicting the objectionable material. Recognizing Roe's picture, the sergeant printed images of certain of Roe's offerings and shared them with others in Roe's chain of command, including a police captain. 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." 356 F. 3d, at 1111 (internal quotation marks omitted). Although Roe removed some of the items he had offered for sale, he did not change his seller's profile, which described the first two videos he had produced and listed their prices as well as the prices for custom videos. 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
pursuant to Rev. Stat. §1979, 42
In reversing, the Court of Appeals held Roe's conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals' 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. 356 F. 3d, at 1110, 1113–1114.
A government employee does not
relinquish all First Amendment rights otherwise enjoyed by citizens just by
reason of his or her employment. See, e.g., Keyishian v. Board of Regents of
Univ. of State of N. Y., 385
In concluding that Roe's activities qualified as a matter of public concern, the Court of Appeals relied heavily on the Court's decision in NTEU. 356 F. 3d, at 1117. In NTEU it was established that the speech was unrelated to the employment and had no effect on the mission and purpose of the employer. The question was whether the Federal Government could impose certain monetary limitations on outside earnings from speaking or writing on a class of federal employees. The Court held that, within the particular classification of employment, the Government had shown no justification for the outside salary limitations. The First Amendment right of the employees sufficed to invalidate the restrictions on the outside earnings for such activities. The Court noted that throughout history public employees who undertook to write or to speak in their spare time had made substantial contributions to literature and art, NTEU, supra, at 465, and observed that none of the speech at issue "even arguably [had] any adverse impact" on the employer. Ibid.
The Court of Appeals' reliance on NTEU was seriously misplaced. Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, 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. 356 F. 3d, at 1111 (internal quotation marks omitted).
The Court of Appeals noted the City
conceded Roe's activities were "unrelated" to his employment.
To reconcile the employee's right to
engage in speech and the government employer's right to protect its own
legitimate interests in performing its mission, the
In Connick, an assistant district attorney, unhappy with her supervisor's decision to transfer her to another division, circulated an intraoffice questionnaire. The document solicited her co-workers' views on, inter alia, office transfer policy, office morale, the need for grievance committees, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. See id., at 141.
Finding that—with the exception of the
final question— the questionnaire touched not on matters of public concern but
on internal workplace grievances, the Court held no Pickering balancing was
Although the boundaries of the public
concern test are not well-defined, Connick provides some guidance. It directs
courts to examine the "content, form, and context of a given statement, as
revealed by the whole record" in assessing whether an employee's speech
addresses a matter of public concern.
Applying these principles to the instant
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.
He fails the threshold test and
Connick is controlling precedent, but to
show why this is not a close case it is instructive to note that even under the
view expressed by the dissent in Connick from four Members of the Court, the
speech here would not come within the definition of a matter of public concern.
The dissent in Connick would have held that the entirety of the questionnaire
circulated by the employee "discussed subjects that could reasonably be
expected to be of interest to persons seeking to develop informed opinions about
the manner in which . . . an elected official charged with managing a vital
governmental agency, discharges his responsibilities." 461
The speech in question was detrimental to the mission and functions of the employer. There is no basis for finding that it was of concern to the community as the Court's cases have understood that term in the context of restrictions by governmental entities on the speech of their employees.
The judgment of the Court of Appeals is
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