The US Court of Appeals for the Ninth Circuit has ruled against former police office Ronald Dible, who was fired from his job with the Chandler, Arizona police department after his web site came to their attention. His web site was a showcase for pictures and video of his wife engaged in various solo and participatory sex acts, one of which apparently featured him – or, more correctly, his face. (I speculate that other pictures may have included less identifiable portions of his anatomy, but that’s neither here nor there).
In any event, when the web site came to light, his superiors asked him if he was involved with it, and he lied to them. Subsequent to the truth coming out, he was fired, and then sued to get his job back, claiming that the web site was protected expression under the First Amendment.
No, sez the federal court’s three judge panel. (Well, two of them, anyway – all three said he could be legitimately fired; one judge felt he was safe with the web site but could be fired for lying to his bosses; the other two joined in an opinion which emphasized the “sleazy,” “vulgar” and “indecent” aspects of the site as reason enough for the firing, since they could contribute to a lack of respect for the police department.
I agree with the result. Having not seen the site, I can’t know whether I agree it was “sleazy,” “vulgar” and “indecent” enough to bring disrepute on the police department of Chandler, AZ. But I believe that an employer – even a ploice department – should be free to fire someone if they want to, absent protected class implications. As the opinion points out, "“The Dibles did not intend to express any kind of message or engage in social or political commentary through the material they posted on their Web site…They participated in those activities to make money; it was as simple as that.” When the First Amendment interest is commercial, rather than artistic or political, I have zero heartburn in seeing it yield to the interests of an employer.
I imagine, however, that many if not most of the readers of this forum will disagree.
Well, I’d disagree with a fairly predictable “I don’t think he’s activities would effect him doing his duties as a police officer”.
However I’m neither a Police officer, nor a Porn Star so judge my uninformed opinion accordingly. I would take either job given the chance though
With an organisation such or the Army or Police I think the people who judge on matters that could “Bring them into disrepute” sway heavily on the side of caution for fear that a little freedom would open a floodgate of bad behavior.
So the question becomes: Do they have the right to control their members who are close to the line to protect against those who would cross the line?
The court thought so, and I think most employers would agree. I enforce a strict code of conduct on my staff while on the shop floor. It’s not that eating a sandwich in front of a customer is offensive, but I know if I let them do that it could lead to feet on the counter or posting on Internet message boards from work computers.
I’m not at all surprised with the decision, but I disagree with it. The justices don’t like public sexual expression, so they suppressed it. Most Americans feel that way. Of COURSE sex is like any other topic and speech about it should be protected. And sometimes, the act is the message. But the ignorant prejudices about sexual expression still reign in America to a certain extent – not like Saudi Arabia, but they’re here.
Legally, the police dept. may have a right to fire the guy, but that doesn’t make it morally or ethically right. I mean, here in Georgia you can legally be fired for any reason, or for no reason. They call it “right to work.” What a joke.
Sure, because whether or not any given person has the means to pay their rent and buy food and stuff SHOULD be left to the whim of whoever their employer might be. This is a very good thing. Very good. It makes some unlucky Americans suffer, while others benefit, therefore it is good.
Nah, the commercial interest vs. social or political commentary isn’t the heart of the matter. It’s all about the sex. If their website was all about selling insurance or promoting lawn and garden supplies nobody would give a flying … fuck.
Actually, I think most will side with your. In my experience Dopers tend to be quite conservative on employment matters. Tends to trump their other opinions quite handily.
Well, first of all, Evil Captor, your polemics should be set aside for some attempts at solid legal reasoning. For example, the typical rule that employers can fire you for any reason at all doesn’t apply to cities and counties, including fire departments and police forces, because of that silly Fourteenth Amendment to the United States Constitution (the one that talks about due process, you know?).
But getting back to the OP:
Here is the Ninth Circuit’s opinion. You will see that the court was applying a test set forth by the Supreme Court in City of San Diego v. Roe, 543 U.S. 77 (2004). That test almost certainly made the result of this case pre-ordained. It’s not quite a slam-dunk, as there are some slightly new twists legally, but it’s pretty close, and most likely the Supreme Court would agree.
Which I suppose gets us back to Evil Captor’s post, because the legal standard for this situation clearly involves a substantial unwillingness to protect sexually explicit “speech” when it conflicts with other demands of society. I find it troubling that the opinion of Judge Fernandez is so filled with vilifying terms for what the plaintiffs did (“sleazy,” “vulgar,” etc.). The conclusion is pre-ordained from the moment the first few paragraphs are read. This leads one to believe that the judge is predisposed to view the conduct in question as having no possible benefit, and, indeed, to be morally wrong. It was perfectly possible to reach the same conclusion that the judge reached, without treating pornography as something you hold out away from you at the end of a very long stick while holding your nose as you dispose of it.
But I will disagree with Rick in his assertion that “an employer – even a ploice[sic] department – should be free to fire someone if they want to, absent protected class implications.” If the Police Department is going to expect a higher standard of conduct from its employees than any old employer, because of its position as a public organ of justice, then it has a responsibility to be certain that the reason for termination is truly a potential detriment to the department. IF (a big if) the facts truly are as represented (substantial discontent in the department for the fact that they were being treated by the public of Chandler as if they were all tainted with pornography), then the Department was justified in its decision. But I would hate to think that a police department could become able to fire people with the same disregard for the First Amendment that an employer like Joe’s Mom & Pop Store could show.
In most cases, “Right to Work” indicates anti-union laws that give an individual the “right to work” without being “forced” to join a union. Most Southern states are, indeed, “right to work” states.
However, the practice to which you refer is more often called “at will.” The employee serves the employer at the will of the employer who may terminate the employment “at will” for any or no reason (that does not violate a legally protected status).
Would you object to a police department firing an officer for attending KKK rallies and giving racist speeches on Sundays? There are certainly government agencies that restrict political free speech as a condition of employment (CIA officers, for example, cannot join many political organizations–though one suspects for the sake of those organizations, not the CIA). Why not allow the police to have such restrictions?
I presume that the test in San Diego would prevent, for example, the Justice Department from firing employees for attending an anti-war rally.
I can’t say what the exact rules are for this particular police department but most departments have regulations which limit outside employment. For any outside employment you must get prior permission from the department and they have they can refuse to let you do it. If you don’t reveal your outside employment it could be grounds for termination. It’s no secret so if you don’t want to live under those restrictions then don’t work there.
Nope. The KKK has a history of violating civil rights; a cop who attended KKK rallies would be under legitimate suspicion that she would not protect the civil rights of certain citizens.
This would be more akin to firing an officer for playing in a heavy metal band, I’d think. It seems a poor decision to me; I’m not so sure about its constitutionality.
Well - how about a cop who makes videos attacking the menace of blacks, Jews and Hispanics and posts them on her website (from which they find their way to YouTube)?
There’s a Columbus, Ohio police officer who did this along with her sister (they style themselves as the “Patriot Dames”). The cop (Susan Purtee) has been taken off the street and put on a desk job while Internal Affairs investigates her for possible department rules violations. Unfortunately YouTube has removed the videos (the one I saw about Jews was grotesque and unintentionally hilarious, with handmade signs held upside down and various misspellings.) The cop’s several-fries-short-of-a-Happy-Meal sister was interviewed on CNN. According to this editorial:
"Columbus police officers are prohibited from engaging in conduct on and off the job that “brings the division into disrepute.” Written directives say such conduct includes “derogatory comments, gestures or insinuations.”
Now that’s a rather broad area to interpret. In this case, the officer apparently has a decent record without any civil rights complaints. On the other hand she’s certainly embarassed the police department (among other things, she and her sister are now the darlings of various racist forums online) and minority citizens are questioning whether she would handle cases involving them fairly.
It’s a messy situation, and not just in legal terms. If I had to draw the line somewhere, I’d lean strongly towards allowing expression of personal opinion by police officers, (even “sleazy” opinion) but not to allow membership in, say, the Aryan Brotherhood.
I would not have a problem with an officer running a porno site. In the absence of any work place rules that say either no pron sites, or no out side employment, or no outside employment that reflects poorly on our department I don’t think he should have been fired. To fire him in the absence of any rules against what he did is to move the goal posts in the middle of the game. Not fair at all.
With that said however I would fire the guy in a heart beat for lying to his superiors. If a police officer will lie to his boss about his outside (legal) activities I would have serious doubts about his truthfulness in other matters. Plus if this got out, (that he lied to his boss and did not get fired) his creditability as a witness in a court case would be zero. Every defense attorney in town would tear him to pieces every time he got on the stand.
So to sum up, the police department should have whacked him for lying, not porn. If they had, there would not have been a big court case.
Rick, what part of the prohibition against “bringing the department into disrepute” did you miss? It isn’t like the bar was moved; the plaintiff knew that rule existed and attempted to avoid its application by keeping the operation quiet so that his superiors wouldn’t find out. His reaction when they started questioning him makes it clear that he knew that his activities were likely a violation of the rule.
It is the same Ninth that is the frequent target of some more conservative groups for being too activist. I don’t know about any Confederacy; even the Confederate Air Force is now the Commemorative Air Force.
Ehh, no. While I’ve no problem with “solid legal reasoning” what the OP SAID was:
So Bricker is taking the position that an employer SHOULD be free to fire someone if they want to, absent protected class implications. He did not ask if it was legal or not, he asked in a way that seems to invite discussion as to the rationality or morality of the decision as well as its legality.
Now, if Bricker says he only wants to address the legal aspects of the decision that is fine by me and I will butt out. But it seems to me that he has invited a wider scope of discussion.
But do you not see the wider implications of this? We now have solid photographic evidence that police officers have sex with their wives! It’s insupportable! What next? Cats and dogs living together? Anarchy?
Yes, I had intended to applaud both the legal reasoning, which is solid, and suggest that I found the result a wise public policy. So it’s certainly fair game to opine that the result is poor public policy… although I disagree.
Sorry, I think you misunderstood my abbreviated comment. What I meant by “polemics” was that I thought you should avoid simply venting spleen about your views on certain matters without at least making sure that you were correct about them (and gave the example of your incorrect statement about employment “at will”, which you erroneously named “right to work”).
As noted, I did return to your underlying social theme later in the post. Bricker, what about my commentary on your legal theme?
