Employment in the law enforcement context is unique. It is widely accepted that law enforcement officers are held to higher standards of conduct,1 and the industry is imbued with strong notions of good versus evil, right versus wrong. These notions have traditionally played important roles in management decision-making regarding the imposition of discipline for off-duty conduct. Thus, a collective gasp was heard when the Ninth Circuit Court of Appeals held last year, in Roe v. City of San Diego,2 that discharging a police officer for selling home-made masturbation videos of himself on the Internet potentially violated the First Amendment. The Ninth Circuit’s holding was particularly troubling to law enforcement clients, who are more apt than other public employers to regulate the off-duty activities of employees. 

In Roe, the Ninth Circuit applied the Pickering balancing test to determine whether the plaintiff’s discharge violated the First Amendment.3 The test asks whether the speech relates to a matter of public concern; if so, the court must decide whether the employer’s legitimate administrative interests outweigh the employee’s First Amendment interests.4 The Ninth Circuit concerned itself with whether the officer’s speech (videotaped masturbation) related to a matter of public concern, and held that "when the employee’s speech is not about his government employer or employment, is directed to a segment of the general public, and occurs outside the workplace, that speech satisfies the public concern test because such speech is not related to the employee’s status in the workplace."5

The case came as a shock to many within the law enforcement community, given that other cases have ostensibly been decided completely differently.6 It also apparently shocked the United States Supreme Court, which recently reversed the Ninth Circuit in a per curiam opinion.7 The Court’s opinion, which was very critical of the Ninth Circuit, concluded that the officer’s speech was not protected by the First Amendment, finding that there was a nexus between the officer’s speech and his employment, and that the speech at issue did not involve a matter of public concern.8

Roe was ordered "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."9 Roe removed all items he had listed for sale on eBay, but did not change his seller’s profile, which described the videos he had produced and listed their prices. Roe was terminated. He filed suit under 42 U.S.C. § 1983, alleging that he was discharged in violation of his First Amendment free speech rights. The defendants moved to dismiss Roe’s complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Applying the Pickering v. Board of Education balancing test,10 the district court dismissed the case because it determined that Roe’s speech did not touch on a matter of public concern. Roe appealed, and the trial court’s decision was reversed.

In Pickering v. Board of Education,11 the plaintiff teacher was discharged for writing a letter to a newspaper, criticizing the Board of Education’s handling of bond issues and its allocation of financial resources. The Illinois Supreme Court rejected the claim that his discharge violated the First Amendment. On appeal, the United States Supreme Court held:

to the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court.12

In Connick v. Meyers,15 the plaintiff was an assistant district attorney who disagreed with her proposed transfer to a different section of the criminal court. In a meeting, her supervisor told the plaintiff that her concerns were not shared by others in the office. The plaintiff responded that she would do some research and later prepared a questionnaire soliciting the views of her co-workers concerning the office transfer policy, morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. She distributed the questionnaire to 15 assistant district attorneys. Her supervisor phoned the district attorney to tell him that the plaintiff was creating a "mini-insurrection" in the office. The district attorney fired the plaintiff for her refusal to accept the transfer and her distribution of the questionnaire.

The plaintiff alleged that her employment was wrongfully terminated because she had exercised her constitutionally-protected right of free speech. The Supreme Court held that the plaintiff’s discharge was not unconstitutional. The "questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy."16 Moreover, the  district attorney had reasonably concluded that the plaintiff’s speech would "disrupt the office, undermine his authority, and destroy close working relationships."17 In reaching its conclusion, the Court relied heavily upon its earlier decision in Pickering and provided some historical perspective on its First Amendment jurisprudence in the public employment context. Most significantly, it noted:

in all of these cases, the precedents in which Pickering is rooted, the invalidated statutes and actions sought to suppress the rights of public employees to participate in public affairs. The issue was whether government employees could be prevented or ‘chilled’ by fear of discharge from joining political parties and other associations that certain public officials might find ‘subversive.’ The explanation for the Constitution’s special concern with threats to the right of citizens to participate in political affairs is no mystery. The First Amendment was ‘fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’18

The next in the series of Pickering progeny, Rankin v. McPherson,19 arose after a non-sworn member of a county constable’s office commented to a co-worker in a private conversation at work that, if someone made a second attempt to assassinate President Reagan, she hoped "they get him."20 Despite the fact that the statement occurred in the context of a private conversation, unrelated to the plaintiff’s employment, the Supreme Court still gave serious consideration to the issue of whether the speech pertained to a matter of public concern, ultimately deciding that the plaintiff’s statement "plainly dealt with a matter of public concern."21 The Court then held that "given the function of the agency, [plaintiff’s] position in the office, and the nature of her statement," it was not persuaded that the employer’s "interest in discharging her outweighed her rights under the First Amendment."22

In Waters v. Churchill,23 the plaintiff nurse was discharged as a result of statements she allegedly made that disparaged a supervisor in a conversation with a co-worker. What was said was in dispute: the plaintiff claimed she had defended the supervisor and had criticized a hospital policy that she felt threatened patient care. Concluding that the hospital had conducted a reasonable investigation, the Supreme Court held that if management believed that the employee had made the disruptive remarks and fired her for them, the hospital "must win."24 The government’s role as employer gave it a freer hand in regulating the speech of its employees than it had in regulating the speech of the public at large:

the extra power the government has in this area comes from the nature of the government’s mission as employer. Government agencies are charged by law with doing particular tasks as effectively and efficiently as possible. When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.25

What followed was more interesting—or more distressing—depending upon one’s perspective. The Ninth Circuit announced that "the purpose of the public concern test [was] to preempt a narrow category of claims involving speech related to a public employee’s status in the workplace."29 In other words, according to the Ninth Circuit, the limited purpose of the Pickering balancing test was to weed out First Amendment claims based on trivial employee grievances, i.e., "to prevent the constitutionalization of ‘employee complaints over internal office affairs.’"30 Since Roe’s speech did not occur at, or concern, work, the court of appeals concluded that it was not the sort of speech that was intended to be combed out by the Pickering test. Indeed, because the speech was not work-related, the court appeared to conclude that the speech necessarily satisfied the public concern requirement.31

The Supreme Court’s Decision
The Supreme Court ruled against Roe without even hearing arguments. In a brief, unsigned opinion issued in early December, the Court began by noting that it had "little difficulty in concluding that the City was not barred from terminating Roe," reiterating, in its decision, that "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."33 The Court was specifically critical of the Ninth Circuit’s determination that Roe’s speech was not work-related:

Far from confirming 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.34

Turning to the Pickering test, the Court noted that "public concern" was a matter of "general interest;" something that was "a subject of legitimate news interest" that could, in some cases, encompass certain private remarks.39 Roe’s speech, the Court found, was "detrimental to the mission and function 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 government restrictions on employee speech.40

The Court’s ruling confirms that a public agency’s power to restrict the speech of its employees is significantly greater than its power to restrict speech by members of the public. It also highlights the critical importance of identifying the nexus between an officer’s speech and the officer’s employment, either by establishing that the speech relates to the employment or otherwise has an effect "on the mission and purpose of the employer."41 In the absence of such a nexus, an agency’s ability to regulate speech is strictly limited. Accordingly, officers should not be disciplined for non-work-related, off-duty speech based solely on the employer’s strong, but vague, notions that the speech is unacceptable or inappropriate for a police officer. However, the Supreme Court’s opinion also suggests that, if an employer demonstrates that off-duty speech which is otherwise unrelated to the employer nevertheless has a detrimental impact on the employer, the Pickering balancing test applies, and the employer retains the broad power to regulate the speech.42