The Ninth Circuit has handed down a very interesting decision in a case of a police officer fired because he and his wife ran a private porn site in his free time. In January of 2002, the Chandler Police Department
discovered that Officer Ronald Dible was running the site, featuring his wife , Megan Dible, who performed various sex acts with various partners and objects. It was too much for the town and he was fired. It is a case that raises some difficult constitutional questions and the decision could cut deeply into first amendment rights.
From the outset, two things were clear in the case. The Dible’s are pretty kinky, but that Ronald Dible kept that side of himself separate from his police work.
The Court described what the police department found on their site:
[They ran] a website featuring sexually explicit photographs and videos of
his wife. After initially placing Ronald Dible on administra-
tive leave and conducting an internal investigation into his
involvement with the website, the City terminated his
employment as a police officer.Ronald Dible and his wife Megan Dible began running the
website in September of 2000, after Megan Dible signed a
contract with CDM Networks, which operated the website.
The Dibles then posted pictures of Megan Dible on the web-
site, under the pseudonym “Katelynn.” Those photographs
portrayed Megan Dible in various sexual poses and activities
with Ronald Dible, another woman, and inanimate objects.
The Dibles also posted, among other things, a videotape of
Megan Dible masturbating that had been filmed by Ronald
Dible. The Dibles did not intend to express any kind of mes-
sage or engage in social or political commentary through the
material they posted on their website. They participated in
those activities to make money; it was as simple as that.
The website operated as follows: Any computer user with
internet capability could access the website’s home page with-
out charge. The home page featured partially nude pictures of
Megan Dible in order to entice customers. If the user wanted
to view more pictures of Megan Dible, a fee was required, but
before the pictures could be reviewed, the user had to enter
into a purported contract with CDM Networks. Once the user
accepted the terms of the contract and paid the fee, he was
free to view the website’s sexually explicit photographs and
videos.
The Dibles also offered a CD-ROM for sale on the website.
Like the website itself, the CD-ROM featured photographs of
Megan Dible having sex with Ronald Dible, other women,
and inanimate objects. Although the photographs on the web-
site and the CD-ROM generally did not show Ronald Dible’s
face, one of the photographs did.
The Court proceeded to reject speech and associational claims raises by Dible.
Even though many believe that we live in anomic times, we
have not yet abandoned our social codes to the point that a
city can be sanctioned for violating a police officer’s First
Amendment rights when he causes disrespect of the police
department and its members by performing in and purveying
pictures of his and his wife’s sexually explicit activities over
the internet. The City could properly take notice of the fact
that officers and the department were vilipended. It could
react to the effects that Ronald Dible’s activities could be
expected to and did have upon the police department’s mis-
sion and functions. To paraphrase Justice Holmes:9 Ronald
Dible may have the constitutional right to run his sex oriented
business, but he has no constitutional right to be a policeman
for the City at the same time. Therefore, the Dibles’ claims
must fail.
It is a decision that seems to discard the countervailing constitutional concerns too easily. It is not clear why Dible cannot live his life in a fashion that is obnoxious to many in his community. He has a protected right to engage in such lifestyle choices so long as he is able to perform his duties as an officer. The court is saying that part of those public duties is to not bring scorn upon himself or his department. That is a sweeping standard that would deny public employees the right to express themselves or to live their lives in controversial ways. Moreover, it may be a good thing to have people on the force who do not fit the standard moral model of a department. Officers are supposed to be tolerant of the pluralism and diversity of lifestyles in society. That tolerance is reinforced with such diversity is present in their own ranks. No one has suggested that what the Dible’s are doing is a crime. It is weird and creepy to be sure. But, there remains a question of how far cities can go after this decision.
The Ninth Circuit opinion seems to be an invitation for departments to police the lifestyles of their officers. While it is certainly true that the Dible’s were very public in their activities, Ronald was only photographed once and did not tie his private activities to his public duties. Other officials may wish to have public sites showing other unpopular lifestyles or expressions. It is not that a public officer has no accountability for his private conduct. However, this opinion is disturbing in how far it appears to intrude into non-official affairs and activities.
For the Ninth Circuit opinion, click here