City of San Diego v. Roe, 543 U.S. 77 (2004)

The City of San Diego terminated a police officer for selling homemade, sexually explicit videotapes and related activities. Using an adults-only section of eBay, the officer sold not only videotapes of himself in a police uniform but also official San Diego Police Department uniforms and other police equipment. The officer sued the city, alleging a violation of his First Amendment right to free speech. The trial court found for the city on the ground that the speech was not entitled to protection because it was not of "public concern." The Ninth Circuit, however, reversed the trial court, finding that his conduct fell within the protected category of citizen commentary on matters of public concern because it took place off-duty, it was away from the employer's premises, and it did not involve a workplace grievance. The U.S. Supreme Court reversed. Per Curiam *** page 855 A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. 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. 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 (NTEU). We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases. 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. 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, and observed that none of the speech at issue "even arguably [had] any adverse impact" on the employer. 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 website, 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. The Court of Appeals noted the City conceded Roe's activities were "unrelated" to his employment. 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 or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the SDPD. On that score the City's consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present case falls outside the protection afforded in NTEU. The authorities that instead control, and which are considered below, are this Court's decisions in Pickering, Connick, and the decisions which follow them. 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 Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee's speech to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it. Pickering did not hold that any and all statements by a public employee are entitled to balancing. To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices. This concern prompted the Court in Connick to explain a threshold inquiry (implicit in Pickering itself) that in order to merit Pickering balancing, a public employee's speech must touch on a matter of "public concern." 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, page 856the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Finding thatwith the exception of the final questionthe questionnaire touched not on matters of public concern but on internal workplace grievances, the Court held no Pickering balancing was required. To conclude otherwise would ignore the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." Connick held that a public employee's speech is entitled to Pickering balancing only when the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." 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. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, and Time, Inc. v. Hill. These cases make clear that 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. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing. 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 Pickering balancing does not come into play. 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." No similar purpose could be attributed to the employee's speech in the present case. Roe's activities did nothing to inform the public about any aspect of the SDPD's functioning or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe's expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image. 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.

Questions

1. In your opinion, does the Ninth Circuit's conclusion that Roe's activities were protected by the First Amendment have merit?
2. Where do you think the line would have been drawn on Roe's free speech rights by the Supreme Court had he not tied his activities to the police department? What if Roe did not wear a police uniform but still sold police-related paraphernalia?
3. What if he wore a police uniform but did not sell police-related paraphernalia? Is the "public concern" requirement from the Pickering case a fair balancing of the rights involved? How might it be improved?