Why Can’t a Cop Photograph a Naked Sorceress?

From daguerreotypes to digital.
Aug. 24 2012 3:15 AM

Why Can’t a Cop Photograph a Naked Sorceress?

A San Francisco police officer fights for his off-duty fantasies.

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So what’s the likelihood that Hansen will be able to expand his online portfolio after hours, without additional repercussions? It depends, say legal experts pointing to a haze of overlapping precedents setting boundaries around public-sector employees’ First Amendment rights. The most important was Pickering v. Board of Education, a 1968 Supreme Court ruling in favor of a small-town teacher, who had been fired for criticizing the board. 

Since that decision, cops and other public employees' rights to free speech on and off duty has been protected by the First Amendment under two conditions: First, the content of the speech had to be a "matter of public concern"—meaning it must have some political or social relevance. And second, employees’ free speech interests had to outweigh the employers’ interests to efficiently operate.

Nudity—often in the form of pornographic content—has been muddying the waters ever since, begging for legal clarification to questions like: Are naked photos a matter of public concern? And when do public employer’s interests outweigh employees’ right to read, make, or sell something that could be considered offensive to others.

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Courtesy of some ballsy plaintiffs and hard-thinking jurists, we have some answers. For example, reading Playboy (in uniform and on-duty) at the firehouse is a constitutionally protected right since 1994. That was the year a federal judge ruled that Los Angeles County Fire Department’s anti-sexual harassment measure banning the magazine imposed “severe limitations” on the First Amendment rights of Captain Stephen Johnson. The fireman celebrated with the declaration that he’d bring a copy to work the next day.

Meanwhile, posing for Playboy in uniform and with your department’s gear even off-duty has been legitimate grounds to be fired ever since 1996. That was the year Carol Shaya Castro lost her suit, after she was terminated for appearing in a spread titled "N.Y.P.D. Nude: One of New York's Finest Steps Out of Uniform.” A New York appellate court found she brought disrepute to the NYPD and reasoned that the agency’s interests outweighed her own.

Gerard Hansen Photo
Hansen's models usually reveal more of their otherworldly-colored skin

Photograph by Gerard Hansen.

For similar reasons, selling eBay videos of yourself stripping out of a generic cop uniform resembling your real one, while masturbating (off duty, no less) is not protected speech to the consternation of a San Diego police officer identified only as John Roe. The Supreme Court determined in 2004 that Roe’s—ahem—products were not a matter of public concern and his attempts to identify himself as a law enforcement officer—even if generically—brought San Diego PD disrepute.

By comparison, Officer Hansen’s off duty artistic endeavors seem tame, say legal experts.

“The question becomes whether the public employer’s interests in a disruption-free, efficient workplace trump the public employee’s free-speech rights,” says David Hudson, a legal scholar at the First Amendment Center. “I don’t see how his photography causes a disruption or even creates a huge morality problem.”

For now, the San Francisco Police Department isn’t talking. A spokesman there declined to comment on its reasons for suspending Officer Hansen but did confirm that he is still employed there.

Martin Mayer, an attorney for the California Peace Officers Association, who represents law enforcement agencies in discipline cases against their own police officers, seems optimistic that Hansen’s work will get First Amendment protection.

“Publishing nude photos could be considered a matter of public concern,” says Mayer. “Because we like it.”

Related Magnum Slideshow: Nude as Muse

Max Taves is a San Francisco-based freelance journalist. He tweets at @maxtaves.

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