Florida Deputies Fired For Appearing In Sexually Explicit Photographs And Videos

A case from Florida illustrates the impact that the Supreme Court’s decision, City of San Diego v. Roe, 543 U.S. 77 (2004), is having in the law with respect to free speech. As shown by the Florida case, courts are applying the Roe decision in a manner that narrows the degree of protection given to off-duty speech.

The Florida case involved Ronald Thaeter and Timothy Moran, deputy sheriffs for the Palm Beach County Sheriff’s Office. Prior to the Fall of 2000, they agreed to participate in sexually explicit photographs and videotapes for dissemination on pay-per-view web sites operated by Elizabeth Maxwell, the wife of a third deputy sheriff, Jack Maxwell. Elizabeth Maxwell conducted a one-time photographing session in a hotel room during which hundreds of photographs as well as videotapes were taken of group sexual activities.

The participants understood that the photographing and videotaping were being created for distribution on Maxwell’s pay-per-view web site. Thaeter and Moran did request that their faces be obscured or disguised because of their concern for the sensitivity of their jobs as police officers, but the film editing was not successful in preventing them from being identified.

When a citizen complained, the Sheriff initiated an investigation. After a lengthy process, the Sheriff fired Thaeter and Moran for failure to obtain prior written approval before they undertook any off-duty employment. Thaeter and Moran filed a federal court lawsuit challenging their termination on free-speech grounds. The federal Eleventh Circuit Court of Appeals upheld the terminations. The Court found that after the Roe decision, “the threshold test for engaging in free speech balancing analysis is a determination of whether the government employee’s speech involved a matter of public concern.” The Court defined a matter of public concern as “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.”

The Court concluded that the participation of Thaeter and Moran in pornographic photographing and videotaping for Internet display “does not qualify as a matter of public concern under any view of the public concern test.

Additionally, despite their attempts to disguise themselves while engaging in sexually explicit conduct, the deputies’ expressive speech and the fact that they were recognized as deputy sheriffs with the Sheriff’s Office was detrimental to the mission and functions of the employer. It reflected on their fitness as deputies and undermined public confidence in the Sheriff’s Office. Therefore, the balancing test is not applicable to the sexually expressive conduct of Thaeter and Moran, because their participation in pornographic photographs and videos is within the context of restrictions by governmental entities on the speech of their employees.”

Thaeter v. Palm Beach County Sheriff’s Office, 2006 WL 1442848 (11th Cir. 2006).

This article appears in the July 2006 issue