1. In your opinion, does the Ninth Circuit’s conclusion that Roe’s activities were protected by the First Amendment have merit?

2. Where do you think the line would have been  drawn on Roe’s free speech rights by the Supreme Court had he not tied his activities to the police department? What if Roe did not wear a police uniform but still sold police-related paraphernalia? What if he wore a police uniform but did not sell police-related paraphernalia?

3. Is the “public concern” requirement from the Pickering case a fair balancing of the rights involved? How might it be improved?

Issue: Whether the First Amendment rights of a government employee—in this case, a police officer—were violated when he was fired for off-duties activities, or whether the government employer was exercising its right to protect its legitimate interests in its mission.

Facts: The City of San Diego terminated a police officer for selling homemade, sexually explicit videotapes and related activities. Using an adults-only section of eBay, the officer sold not only videotapes of himself in a police uniform but also official San Diego Police Department uniforms and other police equipment. The officer sued the city, alleging a violation of his First Amendment right to free speech. The trial court found for the city on the ground that the speech was not entitled to protection because it was not of “public concern.” The Ninth Circuit, however, reversed the trial court, finding that his conduct fell within the protected category of citizen commentary on matters of public concern because it took place off-duty, it was away from the employer’s premises, and it did not involve a workplace grievance.

Decision: The Supreme Court reversed the Ninth Circuit’s decision. Disagreeing with the Ninth Circuit, the Court determined that the police officer’s off-duty activities did not quality as expression regarding a matter of “public concern.” As the “speech in question was detrimental to the mission and function of the employer,” and did not fall into the protected category of citizen commentary, the police officer’s speech rights were not violated.