Although Ronald Dible's conduct may have been unrelated to his job as a police
officer in Chandler, Ariz., his actions hurt the department in the eyes of the
public and were not protected by freedom of speech, said the Ninth U.S. Circuit
Court of Appeals in San Francisco.
"His activities were simply vulgar and indecent," said Judge Ferdinand
Fernandez. "They did not contribute speech on a matter of public concern."
But one member of the three-judge panel said the court's rationale might apply
equally to an off-duty officer who angered some members of the public by
marching in a gay pride parade.
Dible and his wife, Megan, started the Web site in September 2000 and charged
users a fee for watching nude videos. The department did not learn about the
site until January 2002 and questioned Ronald Dible, who initially denied he
had anything to do with the site, the court said.
After the media reported on the site, several officers testified at Dible's
disciplinary hearing that people had made fun of them. A police officer said
that when she went to a bar to break up a fight, a patron told her to take off
her clothes. Another officer said potential recruits had raised the subject
with her, and an assistant chief said he believed the department's ability to
recruit female police officers would be hurt for years.
Dible was fired in April 2002. His suit, filed in 2003, claimed that the
department had violated his right of free speech.
Upholding a lower-court ruling in the city's favor, the appeals court cited a
U.S. Supreme Court ruling in 2004 that allowed San Diego to fire a police
officer who had made and sold sexually explicit videos of himself, stripping
out of a police uniform. The court said the officer's activities had harmed the
police department and were not constitutionally protected.
Unlike that officer, Dible did not tell his porn customers that he was a police
officer. But the court said the harm caused by his conduct, once disclosed, far
outweighed any legal protection it deserved.
"The public expects officers to behave with a high level of propriety, and,
unsurprisingly, is outraged when they do not do so," said Fernandez, joined by
Chief Judge Mary Schroeder. "The law and their own safety demands that they be
given a degree of respect, and the sleazy activities of Ronald and Megan Dible
could not help but undermine that respect."
Judge William Canby, in a separate opinion, said Dible's lies to police
investigators were the only valid grounds for his dismissal. He said police
officers, like other public employees, have a right to free expression outside
the workplace that is unrelated to their job, even if some find it
Canby pointed out that "a measurable segment of the population ... is
vigorously antagonistic to homosexual activity and expression," and said the
court's reasoning might allow a police department to fire an officer who
marched in a gay pride parade.
Even if the officer was off duty and did not identify himself, Canby said, the
department could argue that he had diminished public respect for the police.