9th Circuit panel rules against police officer who ran sex site

Tuesday, February 5, 2008

A former Chandler, Ariz., police officer’s First Amendment rights were not violated when he was fired for running a sexually explicit Web site with his wife, a federal appeals court panel ruled in Dible v. City of Chandler in an amended opinion.

“It would not seem to require an astute moral philosopher or a brilliant social scientist to discern that … [such] activities, when known to the public, would be ‘detrimental to the mission and functions of the employer,’” the 9th U.S. Circuit Court of appeals wrote.

Ronald and Megan Dible began operating the Web site in September 2000. It featured teaser pictures of Megan Dible and offered more-explicit photographs and other material once customers paid money. The police chief had learned of the site by January 2002 and the story made the local press. Dible’s supervisor recommended his dismissal, contending that Dible allegedly provided false or misleading answers to investigators looking into the situation.

Ultimately, Dible was dismissed and a state board upheld the firing in April 2002. Dible and his wife then filed a lawsuit in state court, alleging a violation of their First Amendment rights. The action was later removed to federal court. U.S. District Judge James A. Teilborg granted summary judgment to the city and its police chief.

Dible and his wife appealed to the 9th Circuit, which originally affirmed Teilborg’s ruling in September 2007 and then issued its amended opinion on Feb. 1, 2008. (The amended opinion “revoked” two paragraphs and substituted new ones.)

Judge Ferdinand F. Fernandez reasoned that the analysis was controlled largely by the U.S. Supreme Court’s 2004 decision in City of San Diego v. Roe. In Roe, the Court rejected the free-speech claim of a police officer who sold videos of himself stripping off a police uniform and masturbating.

Dible had contended that Roe was different from his case because — unlike Roe — Dible had taken great pains not to identify himself as a police officer. The 9th Circuit was not persuaded, writing: “In any event, Ronald Dible’s attempts to conceal his activity came to nought and do not distinguish the underlying situation in Roe. Many a rule breaker does so clandestinely in the hope that his violations will not come to light and have untoward consequences.”

Fernandez applied the Court’s Pickering-Connick test for evaluating public employee free-speech claims, drawn from the Court’s decisions in Pickering v. Board of Education (1968) and Connick v. Myers (1983). That test first requires a public employee to establish that he or she was speaking on a matter of public concern or importance. If the employee meets this threshold prong, then courts balance the employee’s free-speech rights against the employer’s rights to a disruption-free workplace.

Fernandez reasoned that Dible could not satisfy the public-concern test: “His activities were simply vulgar and indecent. They did not contribute speech on a matter of public concern.”

Dible argued that the city and police officials violated his First Amendment rights because they punished him for off-duty, private expression that is controlled by United States v. National Treasury Employees Union (1995), rather than Pickering-Connick. In NTEU, the Supreme Court invalidated an honoraria ban on federal employees for their speeches and writings. “Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas,” the Court wrote.

Judge Fernandez acknowledged that it was not clear from the Supreme Court whether there is a public-concern requirement for analysis under NTEU for non-employment-related speech by public employees. However, Fernandez said resolving this issue was unnecessary, because the police department’s interests outweighed the Dibles’ free-speech rights.

“The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not,” he wrote. “The law and their own safety demand that they be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect.”

Fernandez noted that other members of the police department suffered “denigration” by the public after the Dibles’ Web site became known. The department also said the site would hurt recruitment of female officers. He concluded that “whether Ronald Dible’s activities were related to his employment rights or not, the City could discipline him for those activities without violating his First Amendment rights.”

Judge William C. Canby Jr. wrote separately, disagreeing with the majority’s analysis but ultimately concurring with the judgment. Canby reasoned that “it makes little sense to impose the public concern requirement for the protection of unrelated speech.”

He also questioned the alleged disruption, which he characterized as “minimal,” caused by the Dibles’ Web site. He said the majority’s analysis amounted to a rule that “empowers the heckler to veto the speech, and is inconsistent with the First Amendment.” Canby reasoned that police officers’ private expression should not be prohibited simply because some members of the public vigorously disapprove of it. “It is far better to adopt a rule that protects off-duty speech unrelated to employment when the speech itself causes no internal problems,” he wrote.

However, Canby still concurred in the judgment because he believed that Dible could be fired for making false statements to police investigators.