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Police officer appeals dismissal for alleged anti-gay statements

By David Hudson
First Amendment Center

A police officer from Sioux Falls, S.D., who was fired for allegedly making anti-gay statements at a bar while off duty, has challenged his dismissal in a circuit court.

Mike Green was fired following a June 5 incident at Touche'z, a bar frequented by gays. Green was accused of breaking a pool cue and making anti-gay statements.

Last month, a civil service board upheld Green's firing for conduct unbecoming a police officer. Specifically, the board determined that Green had made two statements showing strong bias against homosexuals.

Under the state's administrative appeals process, a dismissed public employee can appeal to a circuit court. Last Thursday, Green filed a notice of appeal.

Tom Wilka, Green's attorney, says his client denies making the statements, but that even if he did, his speech should be protected by the First Amendment.

"Officers need to be held to a high form of conduct, but there's a different standard when you're off duty and when you are on duty," Wilka said.

Wilka said: "Even though the alleged speech is offensive, because it was made off duty Mr. Green has free-speech rights and can speak as he pleases. His speech did not incite imminent lawless conduct and his speech did not constitute unprotected fighting words."

City attorney Janet Brekke said the civil service board reached the correct result. "We're really confident in the board's decision," she said. "We'll continue to support [its] decision."

The First Amendment provides public employees with a certain level of free-speech protection. The U.S. Supreme Court has established a two-part test for determining whether government employee speech receives First Amendment protection.

First, the speech must touch on a matter of public concern. Secondly, the employee's interest in self-expression must not be outweighed by any injury the speech may cause the employer's interest in promoting an efficient workplace.

The Supreme Court of New Jersey earlier this year in Karins v. City of Atlantic City ruled that city officials could suspend a firefighter for an off-duty racial epithet directed at another public employee. According to the New Jersey court, the city had every right to discipline the firefighter, in part because the employee's conduct "has the tendency to destroy public respect for City employees."

The New Jersey court also determined that the firefighter's speech was not entitled to First Amendment protection because "the racial slur was not remotely related to any matter of public concern."

Free-speech expert Eugene Volokh, a UCLA law professor, said that "it is an open question whether entirely off-duty statements made by a public employee on a matter of private concern are categorically unprotected by the First Amendment."

Vanderbilt law professor Tom McCoy, who teaches a class on First Amendment law, said: "The question becomes whether the public employee's speech, even if off duty, significantly interferes with his or her ability to perform the job.

"There is a good argument that when a police officer expresses homophobic sentiments, it raises serious questions about his ability to function as a police officer," McCoy said. "As a police officer the public must have confidence in your open-mindedness and your neutrality. When you take a government job, you are contracting away as much of your free-speech rights as is necessary for you to perform the job effectively."

— The Associated Press contributed to this report.

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