Dible v. City of Chandler
2008 U.S. App. LEXIS 2257, 27 I.E.R. Cas. (BNA) 479, 515 F.3d 918 (2008)
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Rule of Law:
A government employer may terminate an employee for engaging in off-duty, sexually explicit expressive activity that is not a matter of public concern and brings discredit to the employer's mission and functionality, particularly for sensitive positions like police officers, without violating the employee's First Amendment rights, especially when the employee also engaged in dishonesty during the investigation.
Facts:
- Ronald Dible was a police officer for the City of Chandler, Arizona.
- Starting in September 2000, Ronald and Megan Dible operated a sexually explicit website, featuring photos and videos of Megan Dible, often with Ronald Dible or other women, solely for financial gain.
- Ronald Dible was aware his involvement risked violating police department rules against bringing discredit to the city service and required prior approval for outside employment, which he did not seek. He concealed his identity on the site and from department officials, but did tell a fellow officer and encouraged him to start his own site.
- The Dibles also promoted their website at public 'bar-meets' where they posed in sexually suggestive ways, with photos from these events sold online.
- In late 2001, rumors about the website circulated within the department, and by January 2002, the police chief learned of Dible's involvement and initiated an internal investigation.
- During the subsequent internal investigation, Ronald Dible gave misleading answers, denying his connection to the site, his appearance in videos, and telling a co-worker to lie.
- News of the website and Ronald Dible's police employment became public through the press, leading to officers being ridiculed by the public (e.g., during arrests and bar fights), significant drops in police morale, and concerns about recruitment.
- Ronald Dible's supervisor recommended dismissal for violating department rules against discrediting the city service and for providing false information during the investigation, a decision approved by Chief Harris and later affirmed by the City's Merit Board.
Procedural Posture:
- Ronald and Megan Dible initiated an action in state court against the City of Chandler, the Chandler Police Department, and Police Chief Bobby Joe Harris.
- The case was subsequently removed to federal district court.
- The district court granted summary judgment in favor of the City on all of the Dibles' claims, finding Ronald Dible's website involvement was not protected by the First Amendment.
- The Dibles' counsel filed a motion for a new trial and a supplement, which the district court denied.
- Ronald and Megan Dible appealed the district court's decision to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a police department violate a police officer's First Amendment rights to free speech, privacy, or association by terminating him for participating in a sexually explicit website, operated for profit and not expressing social or political commentary, when the activities are discovered and cause public discredit to the department, even if the officer attempted to conceal his identity?
Opinions:
Majority - Fernandez, Circuit Judge
No, a police department does not violate a police officer's First Amendment rights by terminating him for participating in a sexually explicit website under these circumstances. The court affirmed the district court's summary judgment, applying the framework from City of San Diego v. Roe. If Dible's activities were considered related to his employment, they did not qualify as speech on a 'matter of public concern' because they were 'simply vulgar and indecent' and lacked any informational value about department operations. Thus, the Pickering balancing test would not protect him. Even if the activities were unrelated to employment, the court still applied a balancing test, weighing Dible's First Amendment right against the government's strong interest in maintaining an effective and efficient police department. The court recognized that protection for 'vulgar' or 'indecent' activities, especially when engaged in solely for profit, is often weaker. The City presented evidence of 'reasonable predictions of disruption,' including officers suffering denigration, questions from potential recruits, and concerns about recruiting female officers, demonstrating a real impact on the department's mission. The court rejected the 'heckler's veto' argument, stating that public perception of a police agency's mission is a legitimate government concern. Furthermore, the court found no violation of privacy or association rights, as the City did not release information, and the activities were publicly displayed. Police Chief Harris was entitled to qualified immunity because no constitutional right was violated, and even if there were, the law was not 'clearly established' in this context-intensive area. State law claims also failed.
Concurring - Canby, Circuit Judge
No, the judgment affirming Dible's discharge should stand, but the termination based on website activity would violate the First Amendment. Judge Canby disagreed with the majority's First Amendment speech analysis. He argued that Dible's website activity was not employment-related, as Dible was careful not to identify himself or the site with the police department, distinguishing it from Roe. He contended that off-duty speech unrelated to employment should not be subject to a 'public concern' requirement for First Amendment protection, citing Flanagan v. Munger and Berger v. Battaglia. He criticized the majority's dismissal of Dible's speech as 'vulgar,' asserting that protected speech, if not obscenity, should not have its protection diminished by its content or profit motive. He found the evidence of harm to the department 'insubstantial' and 'conjectural,' failing to meet the 'real, not merely conjectural' standard, and argued that the majority's rationale allowed for an unconstitutional 'heckler's veto,' where an employee is punished for others' negative reactions to his speech. However, Judge Canby concurred in the judgment because Dible would have been discharged anyway for making false statements to police department investigators during the internal investigation. He noted that Dible's denials were a clear violation of personnel rules (Class 7) with a mandatory dismissal sanction. He reasoned that the investigation itself was legitimate, as the department could inquire into outside employment and rule violations, and Dible's misconduct (lying) during this legitimate process provided an independent, non-arbitrary ground for dismissal.
Analysis:
This case clarifies the application of the Pickering/Connick framework and City of San Diego v. Roe to public employee speech that is sexually explicit and conducted off-duty. It reinforces the significant governmental interest in maintaining public trust and the efficient operation of its services, especially for law enforcement, even when the employee attempts to conceal their identity. The case suggests that the 'relatedness' of speech to employment can be established by its practical effect on the employer's mission, rather than just explicit identification with the employer. It also highlights the independent and often dispositive grounds for termination based on employee dishonesty during an internal investigation, which can uphold dismissal regardless of the protected status of the underlying activity, a point emphasized by the concurring opinion.
