A police department had the right to fire an officer for operating a Web site that featured sexually explicit photos and videos of his wife, a federal appeals court ruled Wednesday.
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 objectionable.
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.