Officer John Roe with the San Diego police officer had a part time job (loosely termed) selling sexually explicit sex tapes through the adult link on EBay. The videos were of him in a police uniform, stripping to nude, and then masturbated for the camera/audience. The uniform used was not that of the San Diego Police Department but, was clearly a police uniform.
In addition to the video he sold police equipment, official uniforms of the San Diego Police Department, other videos, and men’s underwear. He utilized the user name email@example.com; code 3 in San Diego was a high priority code. His user ID identified him as an employee of a police department.
Roe’s supervisor was on eBay and found Roe’s items for sale which included the sex tape and items for sale of the San Diego Police Department. The supervisor’s initial investigation revealed a photograph of Roe as the seller. The supervisor took the information to Roe’s chain of command. An internal investigation was authorized. As a result of the investigation an undercover officer purchased one of Roe’s videos. The purchased video showed Roe in a police uniform issuing a traffic ticket but, revoked it after stripping and the masturbating.
Roe was confronted with the evidence. He was in violation of San Diego Police Department policies to wit: conduct unbecoming an officer, outside employment, and immoral conduct. Roe was ordered to cease the distribution of any sexually explicit material any means of distribution. Roe did not adhere to the agreement fully. He did not change his profile on eBay as ordered, continued to sell the first two videos and custom videos. San Diego Police Department terminated Roe based on the continued violations of conditions of employment.
Roe filed a U.S.C. 1983 violation maintaining that his first amendment rights were violated. The district court deemed that Roe had proved that his right to the first amendment was applicable in the case. However, the Court of Appeals reversed deciding that his conduct did not violate the matter of citizen concern citing Connick v. Myers 461 US 138.
In Connick an assistant district attorney was ordered to transfer from prosecuting certain cases. Connick complained to other supervisors and the District Attorney. She then distributed a questionnaire to other employees about an internal office policy. The intent of the questionnaire was undermining her supervisor. She maintained that the order violated her right to free speech. The district court agreed with Connick and ordered her re-instated. The case was taken to the Supreme Court where it over turned the decision of the district court and upheld her termination utilizing the following:
“(1) when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior and here, except for one question regarding pressure upon employees to work in political campaigns, the questions posed were not matters of public concern,
(2) the District Court erred in imposing an unduly onerous burden on the state to justify the employee's discharge by requiring it to clearly demonstrate that the speech involved substantially interfered with the operation of the office, and
(3) The limited First Amendment interest involved here did not require the employer to tolerate action that he reasonably believed would disrupt the office, undermine his authority and destroy the close working relationships within the office.” (Connick v. Myers 461 US 138)