Supreme Court Season is always a stressful time for me. Too many important
things happen too quickly.
For example, there's this case.
The one with the officer who was fired because he sold videos of himself
masturbating in police character in his spare time on eBay.
It's not that the Court shot him down that troubles me. They did not even
bother to use the balancing test, which is supposed to weigh the benefit to the
public of the government employee's off-duty speech against the interests of
the government. They didn't bother because "There is no basis for finding that
it was of concern to the community..." I take that to mean that his expression
had no possible political value to the community.
I wonder if his lawyers advanced this argument at all. He should have at
least qualified for the balancing test. His business could easily be spun as
political commentary. The fact that people get off on authority figures in
uniform, especially when authority figures besmirch those uniforms, strikes me
not only as commentary, but as potentially important commentary. It could
inspire us to question why some people seem to enjoy their positions of
authority so, so much. It could inspire us to examine why it is that people are
more willing to do what they are ordered to do when the person who orders them
to do it is wearing a recognizable uniform. It could inspire us to question why
countries are so willing to rally behind large collections of strapping young
men and women in uniform in support of violence. It could give us some insight
into what exactly was happening in those photos in that prison in Iraq.
I'm not arguing that sexual desire has anything to do with the answers to these
questions. But as I understand it, qualifying for the balancing test has to do
with the potential for political importance of the expression, and I see a
potential there, at least as much potential as any college class on Freud.
Was that what this guy was doing? Maybe not. Maybe he was just trying to make a
buck. And I don't know what his arguments actually were, because I haven't read
any of the earlier opinions, so I'm not saying the justices here made a bad
decision. But when you can spin something to be social commentary, that can
mean that it is indistinguishable in fact from true social commentary, and
therefore deserving of protection.
And the court did not in fact deny the balancing test. What they really did
was deny John Roe's end of the balance, and then play with words. The opinion
has plenty of references to the harm done to the employer and its
reputation. But they just decided on the spot, without hearing arguments, on a
9-0, that they "have little difficulty in concluding..." that there were no
benefits to be weighed.
Also, I would like to know why this pops up in the opinion and in most of the
stories about it: "Roe also sold...various other items such as men's
underwear." Is it a crime to sell men's underwear? Does it reflect poorly on
your employer if in fact you are a seller of men's underwear? I confess, I wear
men's underwear. It's a dirty truth.