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Public servants and the First Amendment

The cases of the porn-selling officer, and the Ten-Commandments judge

By Marci Hamilton
FindLawexternal link Columnist
Special to CNN.com


(FindLaw) -- On December 6, the Supreme Court decided San Diego v. John Roe. The case posed the question of how far the First Amendment's free speech protection reaches to protect a police officer in a uniform. The lawsuit was brought by a police officer who was fired for making pornographic videos of himself in apparently official garb, and distributing them for sale on the web (along with other items).

In a per curiam opinion (in other words, no single Justice took credit for writing the decision) with no dissents, the Justices held that the police officer had no First Amendment claim.

Meanwhile, the police officer wasn't the only public servant to recently try to claim constitutional protection for acts relating to his office. On December 14, Alabama Judge Ashley McKathan appeared to conduct a trial in a judicial robe embroidered with an easily readable version of the Ten Commandments.

The judge justified his act by saying, "you can't divorce the law from the truth ... [And t]he Ten Commandments can help a judge know the difference between right and wrong." Presumably, he -- like the police officer -- views his actions as being protected by the First Amendment, either through its Speech Clause or through its Free Exercise Clause.

Like the police officer, however, Judge McKathan is entirely wrong. When a public servant exploits his position of authority to serve his personal views and lifestyle, he has crossed the line. As I will explain below, neither of these men deserves any constitutional protection for his conduct.

The case of the porn-selling police officer

Let's start with the San Diego police officer, known to us only by the pseudonym John Roe. He sold his videos on the adults-only section of eBay, and included in the description of himself that he was a law enforcement officer. Eventually, his supervisors discovered and investigated his after-hours activity.

They concluded Roe had violated several police department policies, including those forbidding obtaining outside employment, engaging in conduct unbecoming an officer, and immoral conduct. Roe's supervisors instructed him to cease dealing in "sexually explicit materials." In response, he removed some of the items he had up for sale, but retained the descriptions of his raunchy videos, along with their prices. He was then terminated.

Truth be told, the Court's jurisprudence involving government employee speech is a bit muddy. Even so, the answer should have been obvious: Roe could not use the First Amendment as a shield to engage in conduct that was fundamentally at odds with the department's public mission. (The U.S. Court of Appeals for the Ninth Circuit had wrongly held otherwise, but the Supreme Court set it straight on the law.)

The Supreme Court made clear that government employees do retain First Amendment rights but that they are limited. Government employee speech is protected if it involves "matters concerning government politics that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment." In addition, when "government employees 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."

But Roe's speech did not fit the bill. By appearing in, and selling, his pornographic videos in a uniform, he spoke -- in effect -- on topics related to his employment, but he certainly did not speak on any topic on which he was "uniquely qualified to comment" by virtue of his job as a police officer. Moreover, his actions undermined the dignity of his office, and undermined, too, the trust the public needs to place in its police.

The Ten-Commandments-wearing judge

Very similar effects arise from Judge McKathan's antics. He undermined the dignity of his robes by making them a billboard for his personal religious beliefs. And he undermined public trust in his office - the judiciary, of course, is supposed to apply secular law, and apply it neutrally and evenhandedly, regardless of the parties' religious beliefs.

Even worse, he suggested that the law he was applying might not be the law the People and their representatives had created, but rather the law of his own religion. Instead of wearing a black robe of sober dispassion, he came dressed to preach. And by so doing, he took direct aim at the system that is the signal achievement of the United States' pluralist democracy.

Are the judge's constitutional rights violated by the requirement that he wear an unadorned robe? Of course not. He can express his message - and worship as he chooses - on his own time, wearing his off-duty clothing. Neither his Free Exercise rights, nor his Free Speech rights are infringed by that distinction. All that is asked is that he refrain from using his public position to foster his personal views. As in the case of the porn-selling police officer, the point is that public office and personal speech and religion should not mix.

Indeed, when it comes to religion, an independent Constitutional mandate makes that crystal clear. The Establishment Clause is violated if the government' action has the purpose or effect of furthering or hindering religion, or if the government has endorsed a particular religious (or anti-religious) viewpoint. Here, there is no question that Judge McKathan has the purpose of furthering the Christian tradition. Nor is there any question that he is personally endorsing a particular religious doctrine. On both counts then, he flagrantly violated the Establishment Clause.

Imagine a defendant who appears before Judge McKathan and who is accused of stealing, or who has a history of adultery. Would he be unreasonable to believe he will be judged by the Ten Commandments, not secular law? Of course not. Moreover, where does the Judge's resort to the Bible rather than the code to determine the law end? The punishments in the Old Testament are a far cry from those required by law in this country. Nor would he be unreasonable to believe that he will receive harsher justice than a defendant whom the judge views as a "good Christian." Any non-Christian is going to feel disenfranchised, and rightly so.

In short, this judge is advocating a theocracy. If he does not agree to remove the robe, he should be removed from the bench -- as soon as possible. His viewpoint is fundamentally at odds with the still emerging, rich pluralism that is the product of the balance struck by both of our Religion Clauses: The Free Exercise Clause, which protects diverse religious belief and expression, and the Establishment Clause, which establishes a balance of power between government and religion.

Personal beliefs and public office

The rules are simple: When the judge is acting in his personal capacity -- say, at church, or in the public square -- he has every right to proclaim his devotion to his faith, including its traditions. More power to him. But when he presides over a trial, he may not use his position to broadcast his religious views.

The same goes for the terminated police officer. When on the force, he could be forced to divorce his private activities from his official duties and identity. But once he is off the force, he may do as he likes.

In the end, common sense is at the base of constitutional law, and especially, at the foundation of the First Amendment. Judges must be -- and appear to be -- neutral, despite the culture wars. And police officers must act in ways that are not unbecoming to their office, regardless of their sexual inclinations.

The bottom line is this: The First Amendment is a source of ordered liberty, not a blessing for public officials' narcissism and self-promotion.

tz.hamilton.marci.jpg

Marci Hamilton is FindLaw columnist and a Visiting Scholar at the Princeton Theological Seminary during fall 2004. She is the Paul R. Verkuil Chairwoman in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state and other constitutional issues can be found on this site. Her email is hamilton02@aol.com.


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