Cop-video ruling may hurt future speech cases

Tuesday, December 7, 2004

WASHINGTON — On the issue of free-speech rights for public employees, the Supreme Court is usually closely divided — torn between employees’ rights as citizens and government’s rights as employers.

But yesterday the Court was unanimous in deciding in City of San Diego v. Roe that a police officer with the pseudonym of “John Roe” deserved no First Amendment protection for the free expression that got him fired.

In so doing, however, the Court may have subtly weakened protection for more common forms of expression, emphasizing a requirement that speech be of “legitimate news interest” and “of value and concern to the public” to win top-tier First Amendment status.

Roe made and sold on eBay videotapes showing him taking off a police uniform and masturbating. On the side he also sold police paraphernalia including official San Diego Police Department uniforms. Roe’s superiors ordered him to stop selling the videos. Roe did, but was fired after police officials learned his eBay profile still referred to the videos. Roe then sued the department, claiming it had violated his First Amendment rights.

Roe won support from the 9th U.S. Circuit Court of Appeals, which found that his tapes and conduct could be categorized as citizen commentary on matters of public concern. The 9th Circuit relied on the 1995 Supreme Court decision United States v. National Treasury Employees Union, which struck down a government limitation on employees’ outside income from speaking and writing.

But yesterday the Supreme Court said the appeals court’s reliance on that ruling was “seriously misplaced.” The Court decided Roe’s case on a fast-track or summary basis, without extensive briefing or oral argument. And the decision it issued was “per curiam,” meaning it was unsigned and spoke for the Court as a whole. There were no dissents.

“Although Roe's activities took place outside the workplace and purported to be about subjects not related to his employment,” the Court wrote, “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 Court went on to apply its other public-employee speech decisions to Roe’s case. It invoked the 1968 Pickering v. Board of Education decision, which requires a balancing of the employees’ right to comment on matters of “public concern” with the government’s interest in promoting the efficiency of its services to the public. But the Court noted that not all employee expressions were entitled at the outset to be evaluated under the balancing test. The “threshold inquiry,” the Court said, was whether the expression touched on a matter of public concern.

Invoking decisions from its privacy jurisprudence, the Court said “public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.”

Under that test, the Court agreed, “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 Pickering balancing does not come into play.”

The ruling concluded by stating, “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.”

Experts in employment law say yesterday’s decision did not markedly change the landscape. “It was not revolutionary. It was a restatement by the Court” of existing precedent, said Zack Hummel of Bryan Cave in St. Louis. The Court, said Hummel, found that officer Roe’s expression “didn’t get anywhere near” the definition of public concern that would trigger any balancing of interests under the Court’s precedents.

But Hummel did say that “an interesting law review article” could be written about the Court’s invocation of precedents involving invasion of privacy in the employee-speech context.

The Court’s requirement of “legitimate” news interest also drew the attention of astute bloggers on Supreme Court matters. On the SCOTUS blog, former Justice Department lawyer Marty Lederman, said, “This embrace of ‘newsworthiness,’ and matters of public, as opposed to private, interest, as criteria on which First Amendment protection should turn, is fast becoming a more prominent theme in several threads of the Court's free speech jurisprudence… What makes this latest case even more interesting, and potentially quite significant, is that the Court is now suggesting that actual public concern, or actual public interest, is not sufficient to endow speech with full constitutional protection — the speech must also be, in the Court's view, of ‘legitimate’ news interest, and must, in the Court's view, have ‘value’ to the public.”

Applying those subjective terms to Officer Roe’s videotapes may have been an easy task. But they could prove perilous in future cases involving, for example, supermarket tabloids or gossipy Web sites. That may define the long-range impact of this case.

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