San Diego v. Roe, No. 03-1669.

• Decision Date: 06 December 2004
• Docket Number: No. 03-1669.
• Citation: 543 U.S. 77
• Parties: CITY OF SAN DIEGO ET AL. v. ROE
• Court: U.S. Supreme Court

543 U.S. 77

CITY OF SAN DIEGO ET AL. v. ROE

No. 03-1669.

Supreme Court of United States.

Decided December 6, 2004.

Respondent Roe brought suit alleging, inter alia, that his First and Fourteenth Amendment rights to freedom of speech were violated when the city of San Diego (City) terminated his employment as a police officer, for selling police paraphernalia and videotapes of himself engaging in sexually explicit acts. A Federal District Court granted the City's motion to dismiss, and the Ninth Circuit reversed, holding that Roe's conduct fell within the protected category of citizen commentary on matters of public concern.

Held: The City was not barred from terminating Roe. While a government employer may impose restraints on employee speech, the employees have the right to speak on matters of public concern, typically those concerning government policies of interest to the public at large, see Connick v. Myers, 461 U. S. 138; Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563. And when they speak or write on their own time on a topic unrelated to their employment, the speech can have First Amendment protection, absent a governmental justification "far stronger than mere speculation" for regulating it. United States v. Treasury Employees, 513 U. S. 454, 465, 475 (NTEU). Roe's case falls outside the protection afforded by NTEU. Although his activities took place outside the workplace and purported to be about subjects not related to his employment, the City's police department demonstrated that its legitimate and substantial interests were compromised by his speech, and Roe took deliberate steps to link his videos and other wares to his police work. Instead, the case is governed by Pickering, which established a balancing test to reconcile an employee's right to engage in speech and the government employer's right to protect its legitimate concerns, and Connick, which set out a threshold test for determining when Pickering balancing is merited. Because Roe's expression does not qualify as a matter of public concern as this Court's cases have understood that term, he fails the threshold test and Pickering's balancing test does not come into play.

Certiorari granted; 356 F.3d 1108, reversed.

ON PETITION FOR CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

PER CURIAM.

The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling videotapes he made and for related activity. The tapes showed the respondent engaging in sexually explicit acts. Respondent brought suit alleging, among other things, that the termination violated his First and Fourteenth Amendment rights to freedom of speech. The United States District Court for the Southern District of California granted the City's motion to dismiss. The Court of Appeals for the Ninth Circuit reversed.

The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.

I

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 popular online auction site. His user name was "Code3stud@aol.com," a word play on a high priority police radio call. 356 F.3d 1108, 1110 (CA9 2004). 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 (SDPD), 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 offered by an individual with the user-name "Code3stud@aol.com." He searched for other items Code3stud 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." Id., 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 U. S. C. § 1983, 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, 461 U. S. 138 (1983).

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.

II

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 U. S. 589, 605-606 (1967). On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. See Connick, supra; Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. United States v. Treasury Employees, 513 U. S. 454, 465, 475 (1995) (NTEU). We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases.

A

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, 513 U. S., 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. Id., at 1112, n. 4. In the context of the pleadings and arguments, the proper interpretation of the City's statement is simply to underscore the obvious proposition that Roe's speech was not a comment on the workings...