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.