Public Employees May Be Fired For Selling Porn On E-Bay

Marty Lederman

Professor Balkin has graciously invited me to blog on Balkinization from time to time. Ideally, this might be the beginning of an effort to consolidate -- here and perhaps elsewhere -- some blogging of various folks associated with the American Constitution Society and the Yale Conference on the Constitution in the Year 2020. I plan to continue blogging on SCOTUSblog; but both Professor Balkin and the folks over at Goldstein & Howe thought it might be useful to cross-post on the two sites whenever developments at the Court might be of special interest to Balkinization readers. So here goes -- a post I made today about another in a series of per curiam reversals of the U.S. Court of Appeals for the Ninth Circuit, this time on an important First Amendment question.

Today the Court unanimously reversed the Ninth Circuit's denial of summary judgment to the public employer in No. 03-1669, City of San Diego v. Roe. There are two substantive parts of the per curiam opinion. The first is fairly unremarkable. The second is potentially quite groundbreaking, and might mean significantly less free speech protection for public employees with respect to speech concerning "private" matters outside the workplace that the Court deems to be not of "legitimate news interest."

Penalties imposed upon public employees on the basis of their speech are generally governed by the Pickering/Connick test, pursuant to which a court balances the interests of the employee, as a citizen, in commenting upon matters of public concern, against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. As the terms of this test suggest, a threshold inquiry is whether the public employee's speech touches on a matter of "public concern." If it does not, the speech is not protected at all against public-employer sanction.

Previous Court cases had fleshed out the "public concern" test on the sorts of speech that typically trigger disciplinary action: Internal workplace grievances generally are not protected (Connick), while speech concerning the employer's public policies generally is protected (Perry, Mt. Healthy) -- that is, subject to Pickering balancing -- even if is privately conveyed to the employer (Givhan). Expressions of hostility to political figures -- even when such speech occurs in the workplace -- is speech protected by the Pickering test (Rankin), as is speech concerning government policies unrelated to the employee's own responsibilities (NTEU). (As NTEU explains, when what is at issue is an ex ante, across-the-board employer restriction on a certain category of employee speech -- rather than an ex post, individualized case of discipline in reaction to a particular employee's speech -- the Pickering balancing test is insufficiently protective, and the government employer is put to an even higher burden of justification.) And political-party affiliation is protected even more strongly, at least as to non-policymaking employees (Elrod, Branti, Rutan).

What the Court had not previously discussed, however, is another important category of employee speech: speech that does not involve personal or internal workplace grievances, but that also does not involve political or other "newsworthy" matters -- that is to say, speech on matters of "private" concern outside the workplace. The issue has arisen principally in cases where law-enforcement officers are discovered to have engaged in racist or other offensive conduct outside the workplace, such as performing in blackface in a skit, or participating in the "Good Ol' Boys" events that garnered some notoriety a few years ago.

John Roe was a police officer. In his case, the speech for which he was fired was a video that he made of himself masturbating in a police uniform -- a video that he offered for sale on E-bay, without identifying himself as a government employee, and without in any way identifying the San Diego Police Department, in particular. The Ninth Circuit held that this video was speech on a matter of public concern because it was offered to a (presumably interested) public and was not speech concerning internal workplace grievances. In section A of today's opinion, the Court suggests that perhaps the video should be treated as a matter of public concern because it speaks to "the mission of the employer and the professionalism of its officers," but that the government easily prevails under the Pickering/Connick balancing test: "Far from confining his activities to speech unrelated to his employment," the per curiam Court wrote, "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."

In section B of the opinion, however, the Court goes much further, and holds that the speech was not a matter of public concern and thus is not subject to Pickering balancing at all. The Court fully embraces its earlier suggestion in Connick 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. . . . [P]ublic 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." This embrace of "newsworthiness," and matters of public, as opposed to private, interest, as criteria on which First Amendment protection should turn, is consistent with a recent, prominent impulse in several threads of the Court's free speech jurisprudence, such as in Dun & Bradstreet and in Bartnicki v. Vopper (particularly in the Breyer/O'Connor concurrence). For especially valuable treatments of this trend -- written long before the Court's recent reinvigoration of the "newsworthiness" doctrine -- see, e.g., Robert Post, THE CONSTITUTIONAL CONCEPT OF PUBLIC DISCOURSE: OUTRAGEOUS OPINION, DEMOCRATIC DELIBERATION, AND HUSTLER MAGAZINE v. FALWELL, 103 Harv. L. Rev. 601 (1990); and Cynthia Estlund, SPEECH ON MATTERS OF PUBLIC CONCERN: THE PERILS OF AN EMERGING FIRST AMENDMENT CATEGORY, 59 G.W.L. Rev. 1 (1990). 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.

Posted 12:32 PM by Marty Lederman [link]