Plaintiffs Ronald Thaeter and Timothy Moran, both deputy sheriffs with the Palm Beach Country Sheriff’s Office, performed as content for a paysite on multiple occasions in 2000, which was operated by another deputy sheriff, Jack Maxwell, and his wife Elizabeth Maxwell. The officers participated in scenes involving group sex, masturbation, oral sex with multiple partners, and in some cases used police cars belonging to the Palm Beach Country Sheriff’s Office as props.
Thaeter also was featured in a streaming video involving sex with his wife, Sorphea Thaeter, for broadcast on three different pay-per-view websites.
The officers originally had asked the Maxwells to obscure or disguise their faces, to protect their professional standing with the sheriff’s office. But the site operators were unable to successfully do so, and later that year a private citizen identified one of the officers on the Maxwell’s site and filed a complaint.
Thaeter and Moran were investigated for professional misconduct and fired. However, both deputies appealed their termination, arguing that the Police Officer Code of Ethics, which requires a police officer to “maintain a life unsullied as an example to all” in their off-duty lives, was “vague,” and that a police officer cannot be disciplined for off-duty involvement in an activity that is protected by the 1st Amendment.
After their reinstatement of employment was denied, the two officers filed a complaint in federal court for permanent injunctive relief and monetary damages against the Palm Beach Country Sheriff’s Office. Included in the complaint were allegations that their free speech rights had been violated. The judge dismissed the case claiming that the off-duty sexual activities of the two officers did not constitute protected expressive conduct under the 1st Amendment.
The two officers appealed the case in the 11th U.S. Circuit Court of Appeals, which determined that they were in fact legally terminated and there was no basis for the case to proceed.
“Although a government employee does not relinquish all 1st Amendment rights otherwise enjoyed by citizens just by reason of his or her employment,” the district judge wrote, “a governmental employer may impose certain restraints on the free speech of its employees, restraints that would be unconstitutional if applied to the general public.”
The judge’s decision was based on an earlier ruling in the case City of San Diego vs. John Roe, which involved the termination of a police officer who acted in adult films during his off-duty hours and then was caught selling them on eBay. Roe claimed that his termination from the police force violated his 1st and 14th Amendment rights, but the 9th Circuit disagreed, ruling that courts should balance the speech of a government employee with the "proper functioning of government offices," which cannot be compromised.
