Can't Be a Cop AND a Pornstar, Says Ninth

Great Debates
21

Eh, if he’s doing it for money, it’s moonlighting, & in a disreputable business, which would hurt his credibility with the public, & that could be used to smear the department. The issue here is not that putting online pictures of you & your spouse having sex is immoral; it’s that it’s disreputable, which is different, being about public opinion. So once his face was visible, they were justified in tossing him out.

Remember that Pete Morisi didn’t sign his real name to his cartoons when he was on the police force, lest he be publicly known to be moonlighting.

22

I love legal arguments. Being completely ignorant of the law, I’m free to ask all sorts of dumb questions without embarrassment.

I’m going to gently lay the part about Dible lying to departmental investigators by the side of the road, because it isn’t very interesting and because it’s really ancillary to the question of whether the activities about which he was being asked were wrong in the first place. But I have some concerns about the real reason he was fired, and the Ninth’s path to the firing’s justification.

That reason was Dible’s “…bringing discredit to the city service…” and the reason was based entirely (it seems) on two things.

The first was officer Amy Hedges’ testimony about a single incident in which she was verbally harassed while responding to an incident at a bar. I may be jaded, but her tale does not strike me as something that has never before happened to a law enforcement officer, male or female, responding to a call at a bar (it didn’t strike me as being particularly believeable, either, but that’s neither here nor there). The second was the assertion that five potential recruits asked (Wait a minute – the Chandler, Arizona PD has a traveling recruiter on the payroll?) about the website.

So, okay. To me, even accepting the above as Gospel, this website isn’t exactly undermining the foundations of Western Civilization. Moreover, the court admits Dible did his best to keep any hint of his association with his employer hidden. If the newspapers found out, it was most likely the result of the city’s own activities. Even if you hold Dible responsible for any adverse outcome of any legal off-duty activity he engages in for profit or pleasure, it still comes down to this: did anybody ever write down a rule that he broke? I mean broke without relying on some “this guy told me…” test.

'Cause there’s nothing written down about what the Ninth does next. Essentially, with no evidence, it assumes (or, rather, asserts) as a given that some types of speech, when completely unrelated to one’s employment, are impermissible because of their effect on one’s employment. I sort of get the idea, but if I could actually believe it, maybe then I could be a lawyer. The right to speak for profit is the right to speak for freedom, right, Republicans? And while we’re at it:

The Supreme Court may endorse the idea of a hierarchy of speech, but in the same breath the Ninth reminds us that it does not. So the decision is a little mysterious.

It doesn’t seem as though an officer being verbally harassed while making an arrest in a bar really constitutes a new and unique hazard brought about only recently because of a certain website.

It doesn’t seem proven that the Chandler Department’s recruitment has been in any way adversely impacted.

Social embarrassment on the part of law enforcement officers is not an identifiable complaint, and is not in any event synonymous with “bringing discredit to the city service.”

23

My disagreements are not so much matters of public policy as morality, and they hinge on two issues:

Is it all right for employers to fire employees for stuff they do on their own free time so long as they are not breaking the law or actively harming the company? (My answer is “no.”) and

Is porn speech? I would say yes, it is. It’s not text, but the essential communication is: This thing we are doing, we think it’s all right, and we think it’s all right that people generally should know we’re doing it, and that those who want to see us doing it can do so."

This is a message that is anathema to some, like the judge who wrote the decision using all the prejudicial terms, but I don’t know why Flanderses’ speech is more worthy of protection than non-Flanderses’ speech.

As far as I’m concerned, in any society which places any value on free speech as a good and worthy thing, the burden should always be on the part of the commercial/governmental/whatever interest that wishes to suppress speech to demonstrate why suppressing the speech at issue is more important that protecting free speech for all.

It’s not just bad policy, it’s DANGEROUS policy. Firing the cop for his sexy website is defacto censorship. (What is a website other than a communications medium anyway?) Censorship is poisonous to democracy. To make good decisions, the citizenry need information about what is going on in the world and society. Censorship seeks to suppress such information, most often in the interests of maintaining the status quo in the face of evidence/opinions that oppose it. Very Bad Thing unless you think maintaining the status quo is more important than democracy itself.

24

It’s censorship that a court thought seeing the chief of police’s wang on the Internet might bring disrepute to the force? That’s your argument?

Ignoring the question of whether or not porn is protected free speech or not, the real question is does this website bring embarassment to the chief and his unit? And the answer is a definite yes.

I would lose all respect for a police officer who thought it was OK to post pictures of himself on the Internet engaging in sex acts (even if said sex acts are with his wife). I’m also pretty well sure that my opinion is shared by plenty of other people. This guy is a laughingstock and any police officer that doesn’t have the respect of his community puts himself and his fellow officers at risk from nuts who have no problem fighting the police.

25

Got fired in Arizona for showing off his hairy zone, eh?

26

This?

I think those kinds of concerns would be cured by public pressure; the police department is ultimately managed and funded by elected officials and the public is thus able to impose the standards they believe are appropriate. This may not be the best action, but it’s more legitimate than the judicial branch stepping in and writing their own standards for employee retention and discipline.

27

So you think there should be NO legal standards? That the employment relationship should be entirely at will? The PD can fire a person for being black? For being a woman about whom rumors of infidelity are swirling?

Once you admit that rules can exist governing the extent to which the state can act, then you admit that the judiciary will be called upon to interpret and apply the rules. At the heart, then, of your assertion must be a conclusion that you don’t view commercial speech as protected under the Constitution. But again, this gets tricky. While I am willing to concede that the “speech” in this situation is unlikely to be viewed as the sort of speech the founding fathers were considering as imperative to protect from governmental supression, what if the same sort of activity was involved, but with a political agenda attached (such as making fun of the President, through a pornographic skit)?

And isn’t the tyrrany of public pressure exactly what our Constitution’s enshrined freedoms are intended to avoid? :wink:

28

I find this (ewww! yuck! profit!) to be a surprisingly socialistic point of view, coming from you.

29

Well, no. Please consider my comment about protected classes, above, incorporated by reference.

This commentary puts the cart before the horse: we have yet to agree that this activity falls within our Constitution’s enshrined freedoms, and you cannot use that conclusion to argue your premise that public pressure is inappropriate here.

Of course the judiciary must be called upon to interpret whatever rules exist. But by forming those rules clearly and discouraging the use of analytical models that depend strongly on extrapolation from the text, as opposed to simply using the text, we avoid much of the pitfalls associated with judges crafting their own unique standards. At the very least, we ensure that one set of judges crafts an overarching set of standards which then apply uniformly. That has happened here, and I’m largely in agreement that commercial speech is much less entitled to protction than political speech. And mixed bags such as the one you posit are going to be fact-based determinations for an individual trier of fact.

30

sigh

No one understands me.

It’s not socialistic at all.

31

Perhaps not, but for one who is such a devoted textualist, you’ve got to realize that the decisions regarding distinguishing personal, political, and commercial speech were derived from a few penumbras, not the text, and when you agree that according commercial speech fewer rights is OK with you, it can certainly (even if inaccurately) be deemed the sort of action that a socialist would impose on commercial (corporate capitalist) speech. :smiley:

32

What if it was just his wife posting pictures/movies of herself on the site and she ran the business? Would that still bring shame upon the police force?

33

Correct. But the idea that there is a due process right to continued employment by the government whihc may be infringed if the government, as an employer, acts in derogation of First Amendment rights is ALSO extra-textual.

I’m against the extra-textual reasoning in one case and find myself supporting the result (if not the method) of extra-textual reasoning in another area to minimize the effects of the FIRST extra-textual reasoning.

34

The idea that speech can be deemed “commercial,” and therefore less worthy of protection, really bugs the shit out of me. What, exactly, is to prevent a court from applying this standard to anything that’s sold for a profit? 99.99% of the films playing at the local multiplex near you were created solely for commercial gain. If the courts hold that censorship of Scary Movie XXIIV is okay, because the film, “did not intend to express any kind of message or engage in social or political commentary,” is that now acceptable? And by what standard does the court decided wether or not something is expressing a social or political commentary? Hell, considering the extent to which sexuality has been politicized in contemporary American culture, I think one could make a strong argument that porn is by nature a political statement. It’s certainly taking a position on wether or not pornography should be protected by the first ammendment, which is pretty clearly a social and political question. Although, “Isn’t my wife hot?” and “Boy, I really like having sex!” both strike me as statements that, shallow as they may be, should be protected under the first ammendment.

Wether that first ammendment protection extends to preventing a police force from firing employees who star in porn, I don’t know. But it is interesting to see Bricker finally decide that the outcome of a legal decision is more important than the means by which it is arrived at. I hope I remember this thread the next time he argues against finding a legal protection for gays in the Constitution as currently written. Sure, the legal reasoning behind such a decision would be bogus, but we all agree that it would be a beneficial outcome, and that’s what’s important, right?

35

Are you seriously asserting that pornography isn’t protected at SOME level by the Constitution? I’d be interested in hearing your analysis that supports that conclusion. :dubious:

I am all in favor of avoiding balancing tests, trust me. I hate Sandra Day O’Connor and her proclivity for introducing them, and Justice Kennedy hasn’t been much better in that regard. BUT, when you say “simply using the text”, I assert that the text of the Amendment that says, “or abridging the freedom of speech” does not say anywhere in it “commercial speech is different from non-commercial speech.” So simply using the text, as opposed to “unique standards” such as a differentiation between commercial and political speech would imply that all speech should be given the same freedom, in which case our officer cannot be fired.

36

Well, yes, the story originates with a First Amendment defense, you see. And what is the web if not a communications medium? Surely you are not maintaining that the thing that the officer did that was “disreputable” (very much YOUR term) was having sex with his wife. Surely what was “disreputable” was his communicating about it via images on the Web.

When I come across issues of sexuality and public policy, I ask myself “What would a grownup do?” You know, someone who’s not freaked out by sex. I’m not sayng you are such a person, just that that’s the standard I look to.

I do think losing all respect for a person because you know details of their sex lives have been posted on the Internet by them is, well, freaked-out kinda thinking. Almost ALL married persons have sex, why is it such a big deal that some people publicly express their sexuality? I just don’t frikkin’ understand this kind of thinking at all.

Now, I think what a grownup would do in this instance is ask, what does this guy’s after hours web sexcapades have to do with his police work? Presumably, he writes tickets, he responds to emergency calls, he arrests miscreants as necessary, he directs traffic, etc. etc. Is there anything about the fact that this person’s image exists on the web doing all sorts of naked sex things that prevent him from doing his duties, or makes doing them even marginally more difficult?

I’d say the reasonable person’s answer to that question must be “No.” Most people would not recognize him offhand, and among those that do, some might snigger and make crude comments, but so what? Cops are a fairly thick-skinned bunch, I hear.

I’m not at all persuaded by the argument that keeping the cop on the force might throw the police into disrepute, but that’s because I don’t believe that sex is by nature disreputable, or that public presentations of sex are necessarily disreputable – depends on the presentation.

I would say, as most reasonable persons would, that it’s up to those who make such statements about the disreputableness of sex to back them up with some kind of evidence. If you wish to suppress this cop’s right to free expression on his own time, please give us something more than “everybody knows” as a rationale for doing so.

37

Gee, I thought the First Amendment said simply, “Congress shall make no laws abridging the freedom of speech.” I don’t recall any text there about commercial vs. noncommercial speech. It sounds like the Constitution is all about free speech to my poor unlegalized ears.

38

No, no, no!!

“Concur with the result,” does not mean that I believe the outcome is more important than the process. Not at all.

I would reach this same result the correct way: finding that there is no substantive due process right to employment by the government that can be breached by derogation of First Amendment rights.

THAT is the correct process, and, as always, that is critically important.

39

It does.

Congress has made no laws abridging the freedom of speech. Now tell me why Chandler, Arizona, cannot fire this guy.

40

Hokay. I’m still trying to figure out where the distinction between “commercial” and “noncommercial” speech that somebody once pulled out of his… er, penumbral emanation… enters into it.