The Ninth Circuit Court of Appeals has just rejected, in a two to one decision, a first amendment argument by a police officer who was fired from his job after it became known that he and his wife operated a website that featured images of them naked, having sex with each other, and with others. The reasoning of the court is that, while the officer does have a constitutional right to run his website, he does not have a constitutional right to keep his job.
This is a similar line of reasoning to the Alabama dildo case. In that case the court found that while the right to privacy protected an Alabaman’s right to own a dildo, there was no constitutional right to sell a dildo. This failure-to-find-protection angle is a common gambit, used by courts as a facile end-around established rights, and is precisely what the framers who opposed the Bill of Rights feared. You won’t find the right to sell a dildo enumerated in the Constitution or Bill of Rights any more than you’ll find the right to sell blue shirts.
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A few years ago I was approached by a couple in their mid-forties. They had seen our first two films, and she especially was keen on making a film with us. She had a story she wanted to tell.
The were married, the second time for both of them. The circumstances of his first marriage were unremarkable, but I still recall her narrative vividly.
She had married for the first time in her early twenties, to a man she with whom she was deeply in love. Their life together was comfortable and affectionate, but as the years went by, she grew to feel there was something missing. Their relationship cooled and after ten years she and her first husband divorced.
A few years later she met the man who was to become her second husband. Their courtship was passionate and physical, but they did not have sex until they became engaged to marry. In bed with her second husband-to-be, she found at least part of what had been missing in her first marriage – she had her first orgasm.
Eight years later, she did not hold any ill-will towards her first husband. She had been no less ignorant then he, but the fact remained that she had experience only limited sexual fulfillment in her first marriage, and with the benefit of hindsight, she was able to see how the lack of fulfillment contributed to the demise of the marriage.
The reason she was so keen on making a film with us is that she want to give testimony to the importance of sexual pleasure. She especially wanted other women to hear her story, to hear about how finding sexual pleasure and contentedness nourished both herself and her relationship.
Her husband was no less interested. He took pleasure in having been his wife’s guide and facilitator in her journey to sexual fulfillment. He was unabashed in his affection for her, and proud of the lusty sex life the two of them enjoyed.
But there was a problem.
He was a police officer; a detective actually. He wasn’t concerned what some people might think, but he was concerned about his job security. They were not in a position financially to easily endure the loss of his job, even temporarily; and as they balanced that fact against their desire to tell their story, the need to make their house payment and have health insurance won out.
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Decisions in First Amendment cases often involve concern over the “chilling effect” that suppression of unpopular or offensive speech – speech that arguably contributes nothing to the public discourse – will have on unpopular or offensive speech that is necessary and vital to the intellectual discourse of a pluralistic society.
I can’t comment on what “socially redeeming value*” the Dibles’ website might have, but I can comment on the effect of knowing that a civil servant can be fired for expressing unpopular ideas, even ideas that have no bearing or relationship to the that person’s work. If the Chandler Police Department can fire Officer Dible for making and appearing in an unpopular website, what’s to stop them from firing an officer who appears in an unpopular play, or writes an unpopular book? A politicized civil service is as dangerous to a liberal democracy as a politicized military, but more insidious.
Perhaps the Dible’s website has no more value to the intellectual discourse of our nation than as a baroque expression of the freedoms upon which this nation was founded. In measuring these freedom’s against the concern over what harm this website might do to the Chandler Police Department, and the deciding that sniggering and sneering count for more than Officer Dible’s First Amendment rights, the Ninth court has made it harder for me to make my films. I feel chill in the air, a chill that has nothing to do with the changing of the season.
*I use this particular phrase because this was the standard for obscenity set in Roth v. The United States, later replaced in Miller v. California with a three-pronged test, aka The Miller Test. But it should be noted that nothing on Officer Dible’s website was alleged to even remotely rise to the threshold set for obscenity in Miller.
