No Right of Offensive Self-expression (when it appears to endorseevil)

Thu Nov 6 19:38:09 PST 2008

    I agree that the officers' speech might be restrictable, but I think
the crime-in-process hypothetical doesn't quite work -- imagine the
officer seeing a crime in process and trying to stop it while dressed as
a clown, or Spongebob Squarepants.

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Paul Finkelman
	Sent: Thursday, November 06, 2008 5:48 PM
	To: CONLAWPROF Prof list; Robert Sheridan
	Subject: Re: No Right of Offensive Self-expression (when it
appears to endorseevil)

Police Offiers are almost always *on duty.*  Many are expected to carry
weapons at all time; thus putting on KKK robes while carrying a badge
and gun might not be protected speech.  Imagine the officer seeing a
crime in process and trying to stop it while in KKK regalia?

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pfink at albanylaw.edu

www.paulfinkelman.com

--- On Thu, 11/6/08, Robert Sheridan <rs at robertsheridan.com> wrote:

	From: Robert Sheridan <rs at robertsheridan.com>
	Subject: No Right of Offensive Self-expression (when it appears
to endorse evil)
	To: "CONLAWPROF Prof list" <CONLAWPROF at lists.ucla.edu>
	Date: Thursday, November 6, 2008, 7:22 PM

	On the subject of arguably sanctionable displays, here's a
report of a  
	probationary police officer in Richmond, CA who, at a Halloween

	costume party posed with a friend who wore KKK regalia while
both gave  
	Nazi-like salutes.  The 27-year-old rookie cop posted photos of
this  
	on his Myspace page where someone who knew him reported this to
his  
	department, which investigated.  The officer wound up resigning,

	voluntarily, he says, link and article below.  His attorney says
that  
	were the officer not on probation he would have defended on FA
grounds  
	of speech and association.

	The chief's comment:   "I believe any member of a Police
Department  
	engaged in the type of behavior depicted in these photographs
would be  
	showing deplorable judgment, a lack of maturity, and serious
racial  
	insensitivity. This kind of behavior does not reflect either the

	attitudes or judgment of other members of the Richmond PD, who
take  
	pride in serving a multi-racial and multi-ethnic community."

	***

	The problem raised by costume-wearing without getting paid for
it, it  
	seems, is not that one is seen as posing as what one fears or
mocks,  
	but rather as endorsing an ogre.  The professional actor, Sir
Anthony  
	Hopkins, who did get paid for dressing up and acting as Hannibal

	Lecter in "Silence of the Lambs," for example, was knighted,
with no 

	real endorsement of cannibalism suspected.  The difference seems
to be  
	that what you do voluntarily, you endorse, even on Halloween,  
	especially when you are a public servant because people, members
of  
	the public, lose confidence in you, rightfully, I expect.  Fatal

	apparent endorsement also enters the field of telling ethnic
jokes;  
	there was the cabinet officer who resigned over telling such.
The  
	theory must be that you appear to endorse what you (voluntarily)
ask  
	people to laugh at when you offer a supposedly shared bias.

	Had the officer not been on probation, would he have been
subject to  
	discipline or termination on this theory?

	Had he appeared as the personification of evil in a community  
	playhouse production, salaried or not, he'd be in the clear, as
no  
	apparent endorsement, right?

	rs
	sfls

	http://tinyurl.com/59v7fx

	The article:

	SFGate
	Officer resigns after Halloween pictures surface

	Henry K. Lee, Chronicle Staff Writer

	Thursday, November 6, 2008

	(11-06) 15:11 PST -- A rookie Richmond police officer has
resigned  
	after photos surfaced of him posing at a Halloween costume party
with  
	a friend dressed as a Ku Klux Klan member as the men give
Nazi-like  
	salutes, officials said today.

	Ben Murdoch, 27, quit the force Wednesday after he was
interviewed by  
	internal-affairs investigators about the photos, which were
taken at a  
	party at his San Jose apartment on Saturday night, said his
attorney,  
	Michael Rains.

	Murdoch, clad in a wig and headband and holding a guitar like a
rock  
	star, is pictured with a friend dressed like member of the KKK,
with a  
	white sheet and a conical hat, Rains said. Both men have their
arms  
	raised in an apparent mock-Nazi salute, the attorney said.

	In an interview today, Murdoch said a friend of his took the
photos,  
	which he then put on his Myspace page. Someone from within his
circle  
	of friends - who was not at the party - then made them public,
he said.

	The photos were forwarded to the Richmond Police Department,
which  
	placed Murdoch on leave on Tuesday. The former personal trainer
said  
	he decided to resign of his own accord. Murdoch said he wasn't
blaming  
	anyone for the situation and stressed that neither he nor his
friend,  
	a Latino man who wore the KKK costume, is racist. The partygoers
were  
	simply drinking and having fun, he said.

	People came as prisoners, correctional officers and gangsters
with  
	Uzis, Murdoch said. "Since I am a cop, should I have not let
them in?  
	Satan showed up. Since I am Christian, should I have not let him
in?"  
	he asked.

	"If people want to call it poor judgment or a bad joke, then
they can  
	call it that," Murdoch said. "That's as far as it could ever
	go."

	Murdoch, who said he has wanted to be a police officer since he
was  
	little, lamented that he had "a good chance of not becoming a
cop  
	again."

	Rains said of his client, "Obviously, he understands the
perception  
	that one would have of him and the other fellow in the photos as
well,  
	because people don't know him."

	"The public doesn't know who he is and what he stands for, and
for  
	that reason he feels terrible," he said. "He knows that he'll
	never be  
	able to correct the perception that one may formulate from
simply  
	looking at photos of people who are strangers."

	About 35 to 50 people were at Murdoch's party, including
off-duty  
	police officers from several agencies, Rains said. The attorney
said  
	he doubted those officers would face any discipline simply by
being  
	present at the party that Murdoch and his three roommates
hosted.

	The man dressed as a KKK member, who is not a police officer,
has a  
	bachelor's degree in international relations and deplores
racism,  
	Rains said.

	"He's a very well-educated, very smart guy," he said.

	Murdoch, a graduate of the Napa Valley College Police Academy,
was  
	sworn in as a Richmond police officer in January. He had
completed  
	field training and was working as a patrol officer.

	Because he was considered a probationary employee for a year,
Chief  
	Chris Magnus could have terminated him for any reason. Rains
said had  
	Murdoch not been on probation, he would have recommended that he
fight  
	any discipline on the grounds of free speech and free
association.

	But Magnus said today, "I believe any member of a Police
Department  
	engaged in the type of behavior depicted in these photographs
would be  
	showing deplorable judgment, a lack of maturity, and serious
racial  
	insensitivity. This kind of behavior does not reflect either the

	attitudes or judgment of other members of the Richmond PD, who
take  
	pride in serving a multi-racial and multi-ethnic community."

	E-mail Henry K. Lee at hlee at sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/06/BASK13VGU6.DTL
	(c) 2008 Hearst Communications Inc. | Privacy Policy | Feedback
| RSS  
	Feeds | FAQ | Site Index | Contact

	_______________________________________________
	To post, send message to Conlawprof at lists.ucla.edu
	To subscribe, unsubscribe, change options, or get password, see
	http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

	Please note that messages sent to this large list cannot be
viewed as private. 
	Anyone can subscribe to the list and read messages that are
posted; people can
	read the Web archives; and list members can (rightly or wrongly)
forward the
	messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20081106/92d08e29/attachment.htm 