CITY OF SAN DIEGO et al. v. ROE

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Syllabus
CITY OF SAN DIEGO et al. v. ROE
on petition for writ of certiorari to the united
states court of appeals for the ninth circuit
No. 03–1669. Decided December 6, 2004
Respondent Roe brought suit alleging, inter alia, that his First and Four-
teenth Amendment rights to freedom of speech were violated when the
city of San Diego (City) terminated his employment as a police officer,
for selling police paraphernalia and videotapes of himself engaging
in sexually explicit acts. A Federal District Court granted the City’s
motion to dismiss, and the Ninth Circuit reversed, holding that Roe’s
conduct fell within the protected category of citizen commentary on
matters of public concern.
Held: The City was not barred from terminating Roe. While a govern-
ment employer may impose restraints on employee speech, the employ-
ees have the right to speak on matters of public concern, typically those
concerning government policies of interest to the public at large, see
Connick v. Myers, 461 U. S. 138; Pickering v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563. And when they speak
or write on their own time on a topic unrelated to their employment, the
speech can have First Amendment protection, absent a governmental
justification “far stronger than mere speculation” for regulating it.
United States v. Treasury Employees, 513 U. S. 454, 465, 475 (NTEU).
Roe’s case falls outside the protection afforded by NTEU. Although
his activities took place outside the workplace and purported to be about
subjects not related to his employment, the City’s police department
demonstrated that its legitimate and substantial interests were compro-
mised by his speech, and Roe took deliberate steps to link his videos
and other wares to his police work. Instead, the case is governed by
Pickering, which established a balancing test to reconcile an employee’s
right to engage in speech and the government employer’s right to pro-
tect its legitimate concerns, and Connick, which set out a threshold test
for determining when Pickering balancing is merited. Because Roe’s
expression does not qualify as a matter of public concern as this Court’s
cases have understood that term, he fails the threshold test and Picker-
ing’s balancing test does not come into play.
Certiorari granted; 356 F. 3d 1108, reversed.

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78 SAN DIEGO v. ROE
Per Curiam
Per Curiam.
The city of San Diego (City), a petitioner here, terminated
a police officer, respondent, for selling videotapes he made
and for related activity. The tapes showed respondent en-
gaging in sexually explicit acts. Respondent brought suit
alleging, among other things, that the termination violated
his First and Fourteenth Amendment rights to freedom of
speech. The United States District Court for the Southern
District of California granted the City’s motion to dismiss.
The Court of Appeals for the Ninth Circuit reversed.
The petition for a writ of certiorari is granted, and the
judgment of the Court of Appeals is reversed.
I
Respondent John Roe, a San Diego police officer, made a
video showing himself stripping off a police uniform and
masturbating. He sold the video on the adults-only section
of eBay, the popular online auction site. His username was
“Code3stud@aol.com,” a wordplay on a high priority police
radio call. 356 F. 3d 1108, 1110 (CA9 2004). The uniform
apparently was not the specific uniform worn by the San
Diego police, but it was clearly identifiable as a police uni-
form. Roe also sold custom videos, as well as police equip-
ment, including official uniforms of the San Diego Police
Department (SDPD), and various other items such as men’s
underwear. Roe’s eBay user profile identified him as em-
ployed in the field of law enforcement.
Roe’s supervisor, a police sergeant, discovered Roe’s activ-
ities when, while on eBay, he came across an official SDPD
police uniform for sale offered by an individual with the user-
name “Code3stud@aol.com.” He searched for other items
Code3stud offered and discovered listings for Roe’s videos
depicting the objectionable material. Recognizing Roe’s
picture, the sergeant printed images of certain of Roe’s offer-
ings and shared them with others in Roe’s chain of command,
including a police captain. The captain notified the SDPD’s

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internal affairs department, which began an investigation.
In response to a request by an undercover officer, Roe
produced a custom video. It showed Roe, again in police
uniform, issuing a traffic citation but revoking it after undo-
ing the uniform and masturbating.
The investigation revealed that Roe’s conduct violated spe-
cific SDPD policies, including conduct unbecoming of an
officer, outside employment, and immoral conduct. When
confronted, Roe admitted to selling the videos and police
paraphernalia. The SDPD ordered Roe to “cease display-
ing, manufacturing, distributing or selling any sexually ex-
plicit materials or engaging in any similar behaviors, via the
internet, U. S. Mail, commercial vendors or distributors, or
any other medium available to the public.” Id., at 1111 (in-
ternal quotation marks omitted). Although Roe removed
some of the items he had offered for sale, he did not change
his seller’s profile, which described the first two videos he
had produced and listed their prices as well as the prices for
custom videos. After discovering Roe’s failure to follow its
orders, the SDPD—citing Roe for the added violation of dis-
obedience of lawful orders—began termination proceedings.
The proceedings resulted in Roe’s dismissal from the police
force.
Roe brought suit in the District Court pursuant to Rev.
Stat. § 1979, 42 U. S. C. § 1983, alleging that the employment
termination violated his First Amendment right to free
speech. In granting the City’s motion to dismiss, the Dis-
trict Court decided that Roe had not demonstrated that sell-
ing official police uniforms and producing, marketing, and
selling sexually explicit videos for profit qualified as expres-
sion relating to a matter of “public concern” under this
Court’s decision in Connick v. Myers, 461 U. S. 138 (1983).
In reversing, the Court of Appeals held Roe’s conduct fell
within the protected category of citizen commentary on mat-
ters of public concern. Central to the Court of Appeals’ con-
clusion was that Roe’s expression was not an internal work-

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place grievance, took place while he was off duty and away
from his employer’s premises, and was unrelated to his em-
ployment. 356 F. 3d, at 1110, 1113–1114.
II
A government employee does not relinquish all First
Amendment rights otherwise enjoyed by citizens just by
reason of his or her employment. See, e. g., Keyishian v.
Board of Regents of Univ. of State of N. Y., 385 U. S. 589,
605–606 (1967). On the other hand, a governmental em-
ployer may impose certain restraints on the speech of its
employees, restraints that would be unconstitutional if ap-
plied to the general public. The Court has recognized the
right of employees to speak on matters of public concern,
typically matters concerning government policies that are of
interest to the public at large, a subject on which public em-
ployees are uniquely qualified to comment. See Connick,
supra; Pickering v. Board of Ed. of Township High School
Dist. 205, Will Cty., 391 U. S. 563 (1968). Outside of this
category, the Court has held that when government employ-
ees speak or write on their own time on topics unrelated
to their employment, the speech can have First Amendment
protection, absent some governmental justification “far
stronger than mere speculation” in regulating it. United
States v. Treasury Employees, 513 U. S. 454, 465, 475 (1995)
(NTEU). We have little difficulty in concluding that the
City was not barred from terminating Roe under either line
of cases.
A
In concluding that Roe’s activities qualified as a matter of
public concern, the Court of Appeals relied heavily on the
Court’s decision in NTEU. 356 F. 3d, at 1117. In NTEU it
was established that the speech was unrelated to the employ-
ment and had no effect on the mission and purpose of the
employer. The question was whether the Federal Govern-
ment could impose certain monetary limitations on outside

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earnings from speaking or writing on a class of federal em-
ployees. The Court held that, within the particular clas-
sification of employment, the Government had shown no
justification for the outside salary limitations. The First
Amendment right of the employees sufficed to invalidate the
restrictions on the outside earnings for such activities. The
Court noted that throughout history public employees who
undertook to write or to speak in their spare time had made
substantial contributions to literature and art, 513 U. S., at
465, and observed that none of the speech at issue “even
arguably [had] any adverse impact” on the employer, ibid.
The Court of Appeals’ reliance on NTEU was seriously
misplaced. Although Roe’s activities took place outside the
workplace and purported to be about subjects not related
to his employment, the SDPD demonstrated legitimate and
substantial interests of its own that were compromised by
his speech. Far from confining his activities to speech unre-
lated to his employment, Roe took deliberate steps to link
his videos and other wares to his police work, all in a way
injurious to his employer. The use of the uniform, the law
enforcement reference in the Web site, the listing of the
speaker as “in the field of law enforcement,” and the debased
parody of an officer performing indecent acts while in the
course of official duties brought the mission of the employer
and the professionalism of its officers into serious disrepute.
356 F. 3d, at 1111 (internal quotation marks omitted).
The Court of Appeals noted the City conceded Roe’s activ-
ities were “unrelated” to his employment. Id., at 1112, n. 4.
In the context of the pleadings and arguments, the proper
interpretation of the City’s statement is simply to underscore
the obvious proposition that Roe’s speech was not a comment
on the workings or functioning of the SDPD. It is quite a
different question whether the speech was detrimental to
the SDPD. On that score the City’s consistent position has
been that the speech is contrary to its regulations and harm-
ful to the proper functioning of the police force. The pres-

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ent case falls outside the protection afforded in NTEU. The
authorities that instead control, and which are considered
below, are this Court’s decisions in Pickering, supra, Con-
nick, 461 U. S. 138, and the decisions which follow them.
B
To reconcile the employee’s right to engage in speech and
the government employer’s right to protect its own legiti-
mate interests in performing its mission, the Pickering
Court adopted a balancing test. It requires a court evaluat-
ing restraints on a public employee’s speech to balance “the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.” 391 U. S., at 568; see
also Connick, supra, at 142.
Underlying the decision in Pickering is the recognition
that public employees are often the members of the commu-
nity who are likely to have informed opinions as to the opera-
tions of their public employers, operations which are of sub-
stantial concern to the public. Were they not able to speak
on these matters, the community would be deprived of in-
formed opinions on important public issues. See 391 U. S.,
at 572. The interest at stake is as much the public’s interest
in receiving informed opinion as it is the employee’s own
right to disseminate it.
Pickering did not hold that any and all statements by a
public employee are entitled to balancing. To require Pick-
ering balancing in every case where speech by a public em-
ployee is at issue, no matter the content of the speech, could
compromise the proper functioning of government offices.
See Connick, supra, at 143. This concern prompted the
Court in Connick to explain a threshold inquiry (implicit in
Pickering itself) that in order to merit Pickering balancing,
a public employee’s speech must touch on a matter of “pub-

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lic concern.” 461 U. S., at 143 (internal quotation marks
omitted).
In Connick, an assistant district attorney, unhappy with
her supervisor’s decision to transfer her to another division,
circulated an intraoffice questionnaire. The document so-
licited her co-workers’ views on, inter alia, office transfer
policy, office morale, the need for grievance committees,
the level of confidence in supervisors, and whether employ-
ees felt pressured to work in political campaigns. See id.,
at 141.
Finding that—with the exception of the final question—
the questionnaire touched not on matters of public concern
but on internal workplace grievances, the Court held no
Pickering balancing was required. 461 U. S., at 141. To
conclude otherwise would ignore the “common-sense realiza-
tion that government offices could not function if every em-
ployment decision became a constitutional matter.” Id., at
143. Connick held that a public employee’s speech is enti-
tled to Pickering balancing only when the employee speaks
“as a citizen upon matters of public concern” rather than “as
an employee upon matters only of personal interest.” 461
U. S., at 147.
Although the boundaries of the public concern test are not
well defined, Connick provides some guidance. It directs
courts to examine the “content, form, and context of a given
statement, as revealed by the whole record” in assessing
whether an employee’s speech addresses a matter of public
concern. Id., at 146–147. In addition, it notes that the
standard for determining whether expression is of public
concern is the same standard used to determine whether a
common-law action for invasion of privacy is present. Id.,
at 143, n. 5. That standard is established by our decisions
in Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975), and
Time, Inc. v. Hill, 385 U. S. 374, 387–388 (1967). These
cases make clear that public concern is something that is a

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subject of legitimate news interest; that is, a subject of gen-
eral interest and of value and concern to the public at the
time of publication. The Court has also recognized that cer-
tain private remarks, such as negative comments about the
President of the United States, touch on matters of public
concern and should thus be subject to Pickering balancing.
See Rankin v. McPherson, 483 U. S. 378 (1987).
Applying these principles to the instant case, there is no
difficulty in concluding that Roe’s expression does not qualify
as a matter of public concern under any view of the public
concern test. He fails the threshold test and Pickering bal-
ancing does not come into play.
Connick is controlling precedent, but to show why this is
not a close case it is instructive to note that even under the
view expressed by the dissent in Connick from four Mem-
bers of the Court, the speech here would not come within
the definition of a matter of public concern. The dissent in
Connick would have held that the entirety of the question-
naire circulated by the employee “discussed subjects that
could reasonably be expected to be of interest to persons
seeking to develop informed opinions about the manner in
which . . . an elected official charged with managing a vital
governmental agency, discharges his responsibilities.” 461
U. S., at 163 (opinion of Brennan, J.). No similar purpose
could be attributed to the employee’s speech in the present
case. Roe’s activities did nothing to inform the public about
any aspect of the SDPD’s functioning or operation. Nor
were Roe’s activities anything like the private remarks at
issue in Rankin, where one co-worker commented to another
co-worker on an item of political news. Roe’s expression
was widely broadcast, linked to his official status as a police
officer, and designed to exploit his employer’s image.
The speech in question was detrimental to the mission and
functions of the employer. There is no basis for finding that
it was of concern to the community as the Court’s cases have

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understood that term in the context of restrictions by gov-
ernmental entities on the speech of their employees.
The judgment of the Court of Appeals is
Reversed.