The Ninth Circuit Court of Appeals, in Dible v. City of Chandler [1], found that a police department did not violate a former police officer’s First Amendment rights when it fired him for maintaining a pornographic website with videos and photographs of himself, his wife, and others. In addition to maintaining the website, Ronald Dible and his wife sold CDs and toured local bars to meet viewers and take sexually explicit photographs with them.
Dible told other officers of his website and eventually the Department learned of it. During an investigation, the press learned of the website and publicized it in the local media. After the investigation, the Department terminated Dible. Dible responded by filing suit claiming that the Department violated his First Amendment right of free speech.
The Court relied upon its decision in City of San Diego v. Roe [2], where a police officer was terminated because he sold a video of himself stripping off his police uniform and performing sexually explicit acts. Here, the Court looked at whether the acts were related or unrelated to the Officer’s employment. However, the Court found that in either situation Dible would not prevail because it is questionable “whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech entirely unrelated to that position in the eyes of the public and his superiors.”
If Dible’s activities were related to his employment, the Court found that the employee’s right to engage in speech must be balanced with the government employer’s right to protect his own legitimate interests in performing its mission. However, the Court also explained that to first use this balancing test, the speech must be a matter of public concern. Here, the Court overwhelmingly found that Dible’s actions were not a matter of public concern but “were simply vulgar and indecent.” Therefore, Dible could not prevail on this argument.
If Dible’s activities were unrelated to his public employment, the same balancing test would be applied; however, the U.S. Supreme Court has not expressed whether the matter must first be a matter of public concern. If Dible’s activities must first be a matter of public concern, Dible would not prevail similar to the argument if his activities were related to employment.
The Court then analyzed the balancing test. The Court gave little value to Dible’s activities in the context of a government employee. However, the Court believed the City had a great interest in maintaining an effective and efficient police department. “The public expects officers to behave with a high level of propriety, and, unsurprisingly, is outraged when they do not do so.”
The public sexual activities of officers, once known, reflect on a police force’s fitness and undermine public confidence. Dible’s activities undermined the degree of respect given to officers. The Department claimed that once the website became widely known, officers were taunted while on patrol and the Department feared that it would not be able to recruit new officers and in particular female officers.
[1] Dible v. City of Chandler, 2007 DJDAR 13692
[2] City of San Diego v. Roe, 543 U.S. 77 (2004).
