[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-13177 MAY 26, 2006
_______________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-80462-CV-DTKH
RONALD THAETER,
Plaintiff-Appellant,
versus
PALM BEACH COUNTY SHERIFF'S OFFICE,
ED BIELUCH, former Sheriff,
in his individual capacity and RIC L. BRADSHAW,
in his official capacity as Sheriff of Palm
Beach County,*
Defendants-Appellees.
No. 03-13197
D.C. Docket No. 02-80463-CV-DTKH
TIMOTHY MORAN,
Plaintiff-Appellant,
versus
PALM BEACH COUNTY SHERIFF'S OFFICE,
ED BIELUCH, former Sheriff,
in his individual capacity and RIC L. BRADSHAW,
in his official capacity as Sheriff of Palm
Beach County,*
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 26, 2006)
Before BIRCH, KRAVITCH and CUDAHY,** Circuit Judges.
BIRCH, Circuit Judge:
This consolidated appeal presents the issue of whether photographs and
videotapes of deputy sheriffs engaging in sexually explicit, off-duty conduct
available for pay-per-view on the Internet is entitled to First Amendment
protection. The district court granted the motion to dismiss of the sheriff who
approved the terminations of the participating deputy sheriffs. We affirm.
_________________________
*Ric L. Bradshaw, the current Sheriff of Palm Beach County, has been substituted for Ed
Bieluch in his offical capacity pursuant to Federal Rule of Appellate Procedure 43(c)(2).
**Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
2
I. BACKGROUND
Plaintiffs-appellants Ronald Thaeter and Timothy Moran were deputy
sheriffs with the Palm Beach County Sheriff’s Office (“PBCSO”). Prior to the fall
of 2000, they agreed to participate in sexually explicit photographs and videotapes
for dissemination on pay-per-view websites operated by Elizabeth Maxwell, the
wife of a third deputy sheriff, Jack Maxwell, who also was a participant.1
Elizabeth Maxwell conducted a one-time photographing session in a hotel room
during which hundreds of photographs as well as videotapes were taken of group
sexual activity. The participants understood that the photographing and
videotaping were being created for distribution on her pay-per-view website.
Officers Thaeter, Moran, and Maxwell did request that their faces be obscured or
disguised because of their concern for the sensitivity of their jobs as police
officers, but the film editing was not successful in preventing them from being
identified.
Officer Thaeter appeared in still photographs showing acts of intercourse,
masturbation, and oral sex with multiple partners. These photographs together
with photographs that involved the use of a PBCSO marked police car were posted
on several pornographic websites on the Internet. Officer Thaeter additionally
1
Maxwell was not a party in the lawsuit because he voluntarily resigned his position after
the internal affairs investigation commenced.
3
participated in production of a “streaming video” or “real-time” movie, in which he
engaged in intercourse, masturbation, and oral sex with his wife, Sorphea Thaeter,
for broadcast on three pay-per-view websites. Officer Moran participated in
explicit group sexual activity shown in still photography disseminated over the
websites, but he was not featured in any streaming videos.
In October 2000, a private citizen made an anonymous complaint to the
PBCSO and reported the participation of the police officers in sexual activity
displayed on the websites. The citizen also stated that the graphic materials
portrayed included a nude female posing on marked patrol cars possibly owned by
the PBCSO. Consequently, PBCSO Captain Mills submitted employee
misconduct charges for the officers to the Office of Professional Regulation, which
ordered an investigation by the Bureau of Internal Affairs.
Investigator Paula Kronsperger conducted the investigation and interviewed
the three officers and Elizabeth Maxwell. She also contracted for thirty-day
memberships in the four websites involved to inspect visually the subject
photographs and videos. After reviewing hundreds of photographs, Investigator
Kronsperger located a few where the faces of Officers Thaeter, Moran and
Maxwell were identifiable, but she found no association with the PBCSO
discernible to anyone not personally acquainted with the officers. She further
4
noted that all the photographic materials appeared to involve consensual sexual
activity.
Investigator Kronsperger’s report focused on three areas of misconduct by
the officers: (1) use of a PBCSO patrol vehicle, (2) an ethical violation under the
Code of Ethics used by the PBCSO, and (3) other identifiable misconduct.
Because Investigator Kronsperger’s investigation revealed that the implicated
PBCSO vehicle involved only Officer Maxwell and his wife, who were not parties
in this case in district court and, consequently, not parties in this appeal, we need
not consider that issue.2 Investigator Kronsperger described her investigation into
2
On the website belonging to Elizabeth Maxwell, Investigator Kronsperger reported:
The primary visitor’s page . . . did show two photographs of a
female leaning against a marked Sheriff’s Office patrol vehicle.
The female, who was leaning against the side of the car, obscured
the county name on the side of the vehicle. In one of the
photographs, the female was handcuffed and nude. The second
photograph showed her partially clothed. While the viewer of the
photographs would certainly draw the inference that the vehicle
was associated with law enforcement, there were no clear
identifying marks to associate the vehicle with the Palm Beach
County Sheriff’s Office. Additionally, there was no agency name
visible anywhere on the vehicle.
Folder I, Exh. A at 4. In interviewing Officer Maxwell, Investigator Kronsperger reported that
he “said that the vehicle in the picture was, in fact, the marked Palm Beach County Sheriff’s
Office patrol vehicle that had been issued to him. D/S Maxwell said that he was not, however,
the person who took the photograph, nor was he present when the picture was taken.” Id. at 7.
Because of her inability to obtain a statement from Elizabeth Maxwell, Investigator Kronsperger
found that the charge for “(IX) Improper Conduct, (29) Intentional Abuse of Sheriff’s Office
Equipment” was not sustained. Id. at 12. She noted, however, that “[w]hile the placement of
the vehicle on the web-site would rise to the level of a policy violation, Elizabeth Maxwell is not
subject to the rules and regulations of the Palm Beach County Sheriff’s Office.” Id.
5
an ethical violation by the officers as determining “whether or not the Deputies[']
appearance on the web-sites rises to the level of an ethics violation.” Folder I, Exh.
A at 12. The Code of Ethics utilized by the Palm Beach County Sheriff’s Office
makes only this statement pertaining to a deputy’s personal life: “I will keep my
private life unsullied as an example to all.” Id.
Investigator Kronsperger explained her reasoning for concluding that the
subject Code of Ethics (II) was not violated because of “policy failure” as follows:
The nature of the Deputies['] actions is not in question. The
application of the policy is where questions arise. The above
referenced policy statement is vague, in that, the intended
communication of the policy to the employee is completely non-
specific. Certainly, there are many non-criminal acts that would
“sully” or tarnish one’s private life. Which acts, and in this case off-
duty acts, are to be applied to the policy? I researched the Canons of
Ethics in order to locate any other guidelines that would govern the
off-duty conduct of D/S Maxwell, D/S Thaeter, and D/S Moran. That
search also met with negative results.
As an investigator, I am charged with the responsibility of identifying
specific facts and making recommendations, based solely on those
facts, as to whether or not a preponderance of evidence has been
established to prove or disprove the existence of a policy violation.
As there is no place for personal opinion in a fact-finding
investigation, I must therefore recommend this aspect of the Code of
Ethics be viewed as a policy failure. Due to it[]s general verbiage,
this particular policy statement would inevitably entail the rendering
of a subjective opinion and/or individual interpretation in order to
arrive at any finding, whether sustainable or not. I would be remiss in
my responsibilities as an Investigator if I did not raise this issue for
consideration.
6
Id. at 13, ¶¶ 2-3.
Investigator Kronsperger also identified other misconduct with respect to the
rules and regulations governing off-duty employment of PBCSO employees:
“Sheriff’s Office personnel shall obtain prior written approval from the Sheriff,
using the approved request form, before engaging in other employment,
occupation, profession or commercial enterprise.” Id. at 13 (IX (16) Off-Duty
Employment of the Sheriff’s Department Rules and Regulations) (emphasis
added). In analyzing this identified misconduct by the officers, Investigator
Kronsperger determined that “[t]he Deputies did not seek or obtain written
approval from the Sheriff in order to participate in their activities on the web-sites.
Certainly, their requests would have been denied.” Id. While the implicated
deputies contended that they were not engaging in outside employment because
they had no ownership in the websites, Investigator Kronsperger concluded that
there is a violation of policy as it relates to off-duty employment. D/S
Maxwell, D/S Thaeter and D/S Moran did “involve themselves, and
take part in,” Elizabeth Maxwell’s and Bob Hall’s pornographic
business enterprises. The participation included the following:
• Posing for photographs depicting multiple partner sexual
encounters.
• Knowledge that the sole purpose of their appearances in the
photos and attendance at the photo shoots was to acquire
enough photographic material to fill photo galleries for three
pornographic web-sites.
7
• Signing a release allowing Elizabeth Maxwell to have exclusive
rights to the use of the photographs.
• Receipt of financial gains, albeit indirectly through their
spouses, from earnings acquired from the web-sites.
Id. at 14 (second emphasis added).
Investigator Kronsperger additionally determined that
the Deputies['] participation in the web-sites, by design, was meant to
be secretive. This is supported by the following facts:
• The faces of the three men are obscured in all but a handful of
the photographs on the web-sites.
• Failure to request written permission to participate in
pornographic web-sites.
• The two web-sites that featured the wives of D/S Moran and
D/S Thaeter were immediately shut down when D/S Thaeter
and D/S Moran received notification of this investigation. The
remaining site featuring Elizabeth Maxwell was not shut down,
but at that point D/S Maxwell had already resigned his position
with the Palm Beach County Sheriff’s Office and was openly
appearing on her web-site with no effort to conceal his identity.
• The web-sites were registered only in the names of the women.
Any financial gains were, therefore, reportedly only paid to the
women. The acquisition of earnings from the web-sites being
paid only to the women is a technicality dwelled upon by
Deputies in order to create the appearance of separating
themselves from the business aspects of the web-sites. All
parties performed on the web-sites. Even if the financial gains
were paid only to the women, the Deputies certainly would
have had an expectation of financial gain through their own
participation.
8
Id. at 14-15 (emphasis added). Accordingly, Investigator Kronsperger
recommended that the officers’ violation of IX(16) Off-Duty Employment had
been sustained factually.
On December 23, 2000, Administrative Manager Frank DeMarco of Internal
Affairs of the PBCSO reversed Investigator Kronsperger’s findings, which he
addressed to Assistant Director Arthur Owen of the Office of Professional
Regulation. DeMarco, who initially had been with the New York City Police
Department and had been with the PBCSO for twenty-two years, explained his
reasoning for recommending reversal of Investigator Kronsperger's factual findings
based upon the Code of Ethics of the Sheriff’s Department that officers are to keep
their private lives “unsullied as an example to all”:
What one does in the privacy of their home is something that is
sacred, should not be compromised, and is protected by the
constitution. However, I believe that once these individuals made a
conscious, adult decision to involve themselves and their wives in
pornography on the Net, they crossed the line and exposed themselves
to both criticism and scrutiny of this agency. The fact that what they
are doing may not be illegal does not have a bearing on whether or not
the conduct is offensive or embarrassing to the Palm Beach County
Sheriff’s Office. It is also true that whether or not this conduct is
immoral or offensive to the community should not have any impact on
this agency’s ability to denounce the individuals or to punish them.
There is another equally compelling reason for my reversal of
Investigator Kronsperger’s finding and that is officer credibility.
During my tenure with the Public Defender’s Office, it was common
9
practice for all trial attorneys to do Internal Affair backgrounds on law
enforcement officers prior to trial. The reasoning is obvious; attack
officer credibility. An allegation such as this, whether sustained or
not, would destroy any officer’s credibility and would not be limited
to moral or judg[]ment issues.
....
I have encountered deplorable behavior on the part of Law Enforcement
Officers during my tenure as a police officer, but I find what these
individuals have done is unconscionable and truly an embarrassment
to all members of this agency and to the Law Enforcement community
in general. In order for Law Enforcement to have the respect of the
community they serve, they must hold themselves to a higher standard
of behavior at all times—not just while on duty.
....
I would be remiss in my duty as Administrator of Internal Affairs to
stand by[,] remain silent, and allow these men to blemish the integrity,
honor and reputation of this fine agency and the men and women who
serve our community.
Id., Exh. B at unnumbered 2, unnumbered 3 (emphasis added).
Lieutenant Ann Burke, Executive Officer of the Internal Affairs Bureau
rejected Investigator Kronsperger’s recommendations, concluded that the deputies’
behavior violated the Code of Ethics (II) of the Sheriff’s Department, and
warranted referral for disciplinary action:
The investigation revealed that Deputy Jack Maxwell, Deputy Ron
Thaeter, and Deputy Tim Moran were involved in “sexually explicit
photographs depicting acts of intercourse, masturbation, and oral sex,
all which were with multiple partners.” These photographs were
posted on several different pornographic web sites on the Internet,
which also involved the use of a PBSO marked police car. Deputy
Thaeter and Deputy Maxwell were discovered to have appeared in
“streaming video,” better described as pornographic “real-time”
movies depicting live sex, masturbation, and oral sex. These
10
“movies” made no attempt to disguise either the face of Deputy
Maxwell or Deputy Thaeter.
Several of the pornographic photographs that appear on these web
sites did make an attempt to disguise the faces of Deputy Maxwell,
Deputy Thaeter and Deputy Moran. During their sworn statements to
Investigator Kronsperger, both Deputy Moran and Deputy Thaeter
admit that they demanded to have their faces disguised in the
photographs because they are “deputies” and their actions, during
their off-duty hours, would cause work-related scrutiny. However,
despite the fact that they are “deputies” and the inherent risk involved,
all three of these deputies agreed to participate in pornographic
images and movies that could be viewed anywhere, anytime, by
anyone in the world with Internet access and a credit card.
Furthermore, their involvement in this pornographic Internet sex show
was a business endeavor, from which all three deputies received
financial benefit.
The actions of Deputy Maxwell, Deputy Thaeter, and Deputy Moran
clearly demonstrate a violation of moral character and, certainly, their
commitment to keep their private lives unsullied as an example to all.
As Law Enforcement officers, we are held to a higher standard of
moral character. We must recognize that the badge of our office is a
symbol of public faith and public trust. The poor judg[]ment exercised
by Deputy Maxwell, Deputy Thaeter, and Deputy Moran with regard
to their off-duty conduct is exceptionally egregious. Their direct
involvement in publicly viewed pornography sullies not only their
personal life and professional reputation; it sullies the public
perception of the Palm Beach County Sheriff’s Office.
Id., Exh. C at 1-2 (Decision of Lieutenant Ann S. Burke, Office of Internal Affairs
(Jan. 25, 2001)) (emphasis added).
Following notification that the internal investigation tentatively had
substantiated allegations of violating regulation sections relating to off-duty
11
employment and the Code of Ethics for Public Officers and Employees, Deputies
Thaeter and Moran participated in the internal administrative process in response
to the allegations against them. Each deputy, represented by counsel, had a pre-
disciplinary determination meeting, conducted by Captain Michael E. Gauger. On
April 13, 2001, Captain Gauger issued a Discipline Notification to both deputies
and recommended that they be terminated from employment with the PBCSO.3 On
3
In pertinent part, Captain Gauger’s Discipline Notification explains his reasons for
recommending the deputies’ terminations:
The supervisor of the Office of Professional Regulation under Sheriff Robert
Neumann, Frank Demario and the supervisor of the Internal Affair’s Division,
Lieutenant Ann Burke both sustained two areas of violation. The first was the
Violation of Section IX (16) Off Duty Employment. The policy of the Palm
Beach County Sheriff’s Office requires deputies to obtain prior written approval
from the Sheriff, using the approved request form, before engaging in other
employment, occupation, profession or commercial enterprise. Your decision to
engage in the business of your wife, becoming an active participant in the display
of intimate, sexual behavior for remuneration, does violate Sheriff’s Office
policy.
The second violation sustained against you describes Section IX (59) Code of
Ethics for Public Officers and Employees. This section mandates that public
officers strictly adhere to the Code of Ethics and Canon of Law Enforcement
Ethics. Again, your decision to engage in off-duty conduct that is construed by
society to be pornographic of[] nature and to be viewed only by adults, for
remuneration violates the Code of Ethics when the Code states, “I will keep my
private life unsullied as an example to all”. The attempt to disguise your identity
fosters the image that you realized the behavior was inappropriate and took steps
to conceal your involvement.
Your law enforcement work has been exceptional, but your decision to engage in
the web site activity is conduct that cannot be condoned by our Department. I am
recommending that your employment with the Palm Beach Sheriff’s Office be
terminated.
Folder 1, Exh. G at 1-2 (emphasis added).
12
the first page of the Discipline Notification, Sheriff Bieluch wrote “I concur” and
signed his name; the Under Sheriff wrote “Strongly concur!” Folder I, Exh. G.
Thereafter, Lieutenant Ann Burke notified each deputy that he was terminated
effective April 23, 2001.
Upon receiving their respective terminations, both deputies appealed their
terminations as disciplinary actions to the Hearing Review Board, conducted by
Captain Terrence Rowe. Commissioner James T. Moore of the Criminal Justice
Professionalism Program, by letter, notified Sheriff Bieluch that the Criminal
Justice Standards and Training Commission, an independent regulatory
commission, had no basis to pursue any action against either deputy, although that
decision did not reflect upon the “investigation, findings, conclusions, and/or
disciplinary action” of the PBCSO.4 Folder 1, Exh. L. Through counsel, the
deputies challenged the regulations under which they were terminated.
Specifically, they argued that the requirement that a deputy must lead an unsullied
4
In relevant part, Commissioner Moore explained:
This decision is based upon the finding that insufficient grounds
exist under the guidelines of Chapter 943.1395, Florida Statutes, to
pursue any disciplinary action by the Commission. The
misconduct is considered a violation of agency policy as evidence
is lacking to classify the misconduct as a violation of law or any
moral character violation as defined under Rule 11B-27.0011(4),
Florida Administrative Code.
Folder 1, Exh. L.
13
life was both void for vagueness and overbroad, impinging on constitutional rights
of freedom of speech and expression as well as privacy.
The Hearing Review Board determined “that the matter was not sustained
due to a policy failure as to the violation of the code of ethics” and that “there was
no violation in regards to outside employment.” Folder 1, Exh. N. Nonetheless,
Sheriff Bieluch wrote on the bottom of the decision: “I do not concur with the
board’s findings. The original charge and discipline stands.” Id. In an attached
memorandum, Sheriff Bieluch explained his reasons for disagreeing with the
Hearing Review Board and directed that his memorandum be provided to each
member of a Termination Review Board if the deputies pursued administrative
review of their terminations:
The former deputies, Timothy Moran, Ronald Thaeter, and Jack
Maxwell, III admitted to participating in the web site. This was done
for economic gain, thus it is a job or business venture, which requires
approval from each employee’s respective chain of command prior to
engaging in outside employment. Reversal of the finding regarding
that portion of the sustained Internal Affairs investigation simply
makes no sense. They needed the permission of the Sheriff’s Office
supervisors, and they did not have it. It is obvious that they violated
this rule. I reject the board’s 5 to 0 vote to overturn that sustained
finding.
The board cited Policy Failure as the reason for voting 4 to 1 in
reversing the sustained Code of Ethics violation, and my decision to
terminate the aforementioned employees. Had the board called
Lieutenant Ann Burke to answer why she overturned the initial
findings of Investigator Kronsperger, and had the members reviewed
14
SOP 222.03 IV [E,] they would have known that policy failure did not
occur, and did not apply. That SOP states: “Policy Failure-The policy
or procedure does not properly address the allegation. Confusion, or
conflict in policy led to the alleged conduct.”
The actions of pornographic activity would best be addressed by the
Code of Ethics. Certainly, the Code of Ethics is not so confusing that
it would lead the former deputies to engage in pornographic acts.
Those are the elements necessary to cite Policy Failure. Those
elements are not present. I reject the board’s 4 to 1 vote to
overturn that sustained finding.
In conclusion, the pornographic activity was not restricted to the
privacy of the former deputies’ homes. Instead, it was on the Internet,
which is accessible by the public. When an allegation of misconduct
is presented to the Sheriff’s Office, it is mandated by policy and
statute that an investigation be conducted. The public, if not already
aware, then becomes aware of the incident because of the Public
Records Law in Florida. It is my stated belief that pornographic
activity by deputies is something which would cause embarrassment
to other officers, to the Sheriff’s Office itself, which is the premiere
law enforcement agency in Palm Beach County, as well as to me
personally and professionally as the Sheriff.
Whether the Florida Department of Law Enforcement seeks to have a
Probable Cause Hearing is irrelevant. Internal Affairs investigations
are based on a preponderance of evidence, and I believe that the
preponderance requirement has been met.
The Hearing Review Board’s determinations are rejected in whole.
The terminations of former Deputies Moran, and Thaeter will stand.
Folder 1, Exh. O at 1-2 (first, second, fifth, seventh, and eighth emphases added).
Pursuant to standard operating procedure, Deputies Thaeter and Moran
requested that the Hearing Review Board convene a Termination Review Board to
15
review the Sheriff’s overruling the decision of the Hearing Review Board
regarding their terminations. In a letter to the chairman of the Termination Review
Board, counsel for Deputies Thaeter and Moran pursued her arguments that the
Police Officer Code of Ethics requirement that an officer must keep his or her
“private life unsullied as an example to all” was vague and that a police officer
“cannot be disciplined for off-duty involvement in activity protected by the First
Amendment.” Folder 1, Exh. R at 1, 2. In a 3-2 decision, the Termination Review
Board determined that Deputies Thaeter and Moran should be returned to work.
Based on that decision, counsel for Deputies Thaeter and Moran then wrote Sheriff
Bieluch to reinstate the deputies.5
When Sheriff Bieluch did not reinstate Deputies Thaeter and Moran, they
subsequently filed individual complaints for preliminary and permanent injunctive
relief and monetary damages in federal court against the PBCSO and Sheriff
Bieluch, defendants-appellees. In seeking to be reinstated as deputies in good
standing at the PBCSO, they raised various causes of action, including an action
under 42 U.S.C. § 1983 that their rights of free speech and association protected
under the United States and Florida Constitutions had been violated. The district
5
In the letter to Sheriff Bieluch, counsel noted that Deputy Thaeter did not “ha[ve] the
opportunity to present his evidence to a review board, since after the board ruled that there was a
policy failure, they did not convene his hearing.” Folder 1, Exh. S at 2.
16
judge dismissed with prejudice the deputies’ complaints for failure to state a claim
for which relief could be granted. He specifically noted: “The plaintiffs in any
event by their complaint[s] do not deny their participation in the sexually explicit
photographs and video tapes in question, which are described in narrative form in
Kronsberger's final investigative report (as derived from taped interviews with the
three officers in question), but rather, challenge the authority of the Sheriff to
terminate their employment, consistent with First Amendment precepts, based
upon that activity.” R1-36 at 2 n.1 (Thaeter case); R1-34 at 2 n.1 (Moran case).
This appeal followed in which the deputies argue that the district judge erred in
dismissing their complaints under Federal Rule of Civil Procedure 12(b)(6) by
concluding that the non-verbal, off-duty sexual conduct of the deputies did not
constitute protected expressive conduct under the First Amendment.6
II. DISCUSSION
A. Standard of Review
Our review of a district court’s dismissal for failure to state a claim under
6
Concerning the PBCSO regulation and ethical code section that are involved in this
case, the deputies also have raised on appeal constitutional vagueness and overbreadth
challenges that they had presented to the district court. We address these contentions within our
First Amendment analysis. Since the deputies' expressive sexual conduct involved the Internet,
they raise on appeal the issue of violation of the Commerce Clause, which was not addressed by
the district judge. Because we have “'repeatedly held that “an issue not raised in the district
court and raised for the first time in an appeal will not be considered by this court,”'” we do not
analyze this issue. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir.
2004) (collecting cases) (citations omitted).
17
Rule 12(b)(6) is de novo. Behrens v. Regier, 422 F.3d 1255, 1259 (11 th Cir.
2005). “When considering a motion to dismiss, all facts set forth in the plaintiff's
complaint 'are to be accepted as true and the court limits its consideration to the
pleadings and exhibits attached thereto.'”7 Grossman v. Nationsbank, N.A., 225
F.3d 1228, 1231 (11 th Cir. 2000) (per curiam) (citation omitted). A complaint
may not be dismissed for failure to state a claim under Rule 12(b)(6) “‘unless it
appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’” Magluta v. Samples, 256 F.3d 1282,
1283-84 (11 th Cir. 2001) (per curiam) (quoting Conley v. Gibson, 355 U.S. 41, 45-
46, 78 S.Ct. 99, 102 (1957)).
B. Off-Duty Employment
Deputies Thaeter and Moran contend that their off-duty participation in
explicitly sexual or pornographic pictures and videos offered for pay over the
Internet for which they were compensated was protected speech under the First
and Fourteenth Amendments that could not constitute the basis for their
7
Like the district court, “the facts recited are drawn from the allegations of the plaintiffs'
complaints and attached exhibits, including the final investigative report of Investigator
Kronsperger which the Complaint incorporates by reference.” R1-36 at 2 n.1 (Thaeter case); R1-
34 at 2 n.1 (Moran case); see Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is
an exhibit to a pleading is a part thereof for all purposes,” which necessarily includes Rule
12(b)(6) motions.) .
18
terminations.8 These deputy sheriffs, however, were subject to rules and
8
“The First Amendment affords protection to expressive conduct as well as to actual
speech.” Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 1547 (2003). The speech
involved in this case is expressive conduct, the alleged First Amendment right of Deputies
Thaeter and Moran to participate off-duty in pornographic pictures and videos available for
viewing on the Internet for a fee. The Supreme Court has upheld the distribution of sexually
explicit films consistent with the First Amendment. See, e.g., Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 101 S.Ct. 2176 (1981); Erznoznik v. City of Jacksonville, 422 U.S. 205,
95 S.Ct. 2268 (1975); Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391 (1961).
The Court, however, also has upheld government or police-power statutes that regulate erotic
performers in their expressive conduct. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111
S.Ct. 2456, 2460 (1991) (recognizing that, while nude dancing “is expressive conduct within the
outer perimeters of the First Amendment,” albeit “only marginally so,” the Court held that state
public indecency statute that required dancers in a lounge and adult bookstore to wear pasties
and G-strings did not violate the First Amendment). “Conduct or depictions of conduct that the
state police power can prohibit on a public street do not become automatically protected by the
Constitution merely because conduct is moved to a bar or a 'live' theater stage, any more than a
'live' performance of a man and woman locked in a sexual embrace at high noon in Times Square
is protected by the Constitution because they simultaneously engage in a valid political
dialogue.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2640 (1973); see also
Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S.Ct. 3172, 3176 (1986) (upholding the
closing of an adult bookstore that had become a site for solicitation of prostitution, public acts of
masturbation, fondling, and fellatio by patrons, the Court recognized that “First Amendment
values may not be invoked by merely linking the works 'sex' and 'books'”). Rather than the
seemingly all-encompassing First Amendment protection that the deputies claim to cover
photographs and videotapes of their off-duty sexually expressive conduct, the Court has clarified
“that the First Amendment does not guarantee the right to [engage in protected expression] at all
times and places and in any manner that may be desired.” Heffron v. International Soc'y for
Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2564 (1981). Consequently,
the case law in this area instructs that we must be careful not to equate the public display of all
non-obscene nudity with protected expression.
To the extent that the deputies allege violations of their constitutional associational and
privacy rights, the First Amendment is not a panacea. “It is possible to find some kernel of
expression in almost every activity a person undertakes . . . but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment.” City of Dallas v. Stanglin, 490
U.S. 19, 25, 109 S.Ct. 1591, 1595 (1989). The Fifth Circuit has distinguished between nude
dancing and intentional touching between a nude dancer and a bar patron: “That the physical
contact occurs while in the course of protected activity does not bring it within the scope of the
First Amendment.” Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir. 1995). In
upholding a local ordinance that prohibited nude sunbathing, we recognized “that '[n]udity is
protected speech only when combined with some mode of expression which itself is entitled to
first amendment protection.'” South Florida Free Beaches, Inc. v. City of Miami, Fla., 734 F.2d
608, 610 (11th Cir. 1984) (citation omitted) (alteration in original). “Stripped of constitutional
19
regulations of their government employer, the PBCSO. Notably, a specific
protection, nude sunbathing is subject to legitimate governmental proscriptions,” and we
concluded that the plaintiffs did not “possess a constitutional right of associating in the nude.”
Id.
The Fourth Circuit determined that First Amendment privacy protection was lost when a
husband and wife brought others into their home to view or to participate with them in erotic
sexual experiences, which were photographed, in violation of state sodomy laws. Lovisi v.
Slayton, 539 F.2d 349 (4th Cir. 1976). Concluding that the husband and wife had relinquished
their federal constitutional right to privacy by engaging in intimate sexual conduct with or in the
presence of others, that court explained:
What the federal constitution protects is the right of privacy in
circumstances in which it may reasonably be expected. Once a married couple
admits strangers as onlookers, federal protection of privacy dissolves. It matters
not whether the audience is composed of one, fifty, or one hundred, or whether
the onlookers pay for their titillation. If the couple performs sexual acts for the
excitation or gratification of welcome onlookers, they cannot selectively claim
that the state is an intruder. They possess the freedom to follow their own
inclinations in privacy, but once they accept onlookers, whether they are close
friends, chance acquaintances, observed “peeping Toms” or paying customers,
they may not exclude the state as a constitutionally forbidden intruder.
The answer to the question when the right of privacy is lost cannot turn
upon numbers, preserved, if there is one onlooker or two, but not if there are
three, or preserved if there are ten, but not if there are eleven. Nor should it turn
upon the fact that the onlookers, however many, are not only passive observers
but are participants themselves in sexual activity, some of it with one or more of
the partners to the marriage. In either such event, the married couple has
welcomed a stranger to the marital bedchamber, and what they do is no longer in
the privacy of their marriage.
Id. (emphasis added). This reasoning would be applicable to the sexual conduct of the deputies
with their spouses and others that occurred in this case. While the intimate sexual conduct
between the deputies and their spouses would have been entitled to First Amendment protection
if it had occurred in the privacy of their homes, that shield of constitutional privacy protection
was lost when these intimate marital relations included the participation of others in a hotel
room, where it was photographed, videotaped, and moved to the Internet for public viewing for
pay, and the deputies were compensated for their sexual performances.
Despite the deputies apparent argument that the protection for First Amendment
expressive conduct is unlimited, this protection is not without limitations. Nonetheless, the
constitutional protection afforded pornographic films or videos and expressive conduct is not
what is at issue in this case. Rather, we must analyze the off-duty participation of Deputies
Thaeter and Moran in pornographic pictures and videos available on the Internet for pay and for
which they were compensated in the specialized context of their government employment and
the rules and regulations that governed that employment, even when they were off-duty.
20
regulation of the PBCSO required them to “obtain prior written approval from the
Sheriff using the approved request form, before engaging in other employment,
occupation, profession or commercial enterprise.” Folder I, Exh. A at 13 (IX(16)
Off-Duty Employment, Rules and Regulations of the PBCSO) (emphasis added).
Additionally, the PBCSO required its employees to adhere to its adopted Code of
Ethics, which mandated that employees must keep their private lives “unsullied as
an example to all.” Folder I, Exh. A at 12. The obvious purpose of the prior-
approval regulation was to prevent damage to public confidence in the PBCSO by
employees’ off-duty employment, and the ethical rule similarly required
employees to conduct their private or off-duty lives so as not to place the PBCSO
in disregard.
There is no dispute that Deputies Thaeter and Moran did not seek or obtain
prior written approval from Sheriff Bieluch before their off-duty participation in
the pornographic pictures and videos for compensation. Although “[a]
government employee does not relinquish all First Amendment rights otherwise
enjoyed by citizens just by reason of his or her employment,” nonetheless “a
governmental employer may impose certain restraints on the speech of its
employees, restraints that would be unconstitutional if applied to the general
21
public.”9 City of San Diego v. Roe, 543 U.S. 77, 80, 125 S.Ct. 521, 523 (2004)
(per curiam); see Brown v. Glines, 444 U.S. 348, 356 n.13, 100 S.Ct. 594, 600
n.13 (1980) (“Even when not confronted with the special requirements of the
military, we have held that a government employer may subject its employees to
such special restrictions on free expression as are reasonably necessary to promote
effective government.” (collecting cases)); Kelley v. Johnson, 425 U.S. 238, 247-
48, 96 S.Ct. 1440, 1445-46 (1976) (upholding hair-length regulation of police
9
Regulations and ethical codes, such as those we review in this case, are not uncommon
among local law enforcement offices. For example, the Tenth Circuit reviewed similar
regulations and ethical rules for the Colorado Springs Police Department and determined them
not to be facially vague:
C 1300. STANDARDS OF CONDUCT—GENERAL RULES:
Members of a Police Department are highly visible representatives of government
and are entrusted with the responsibility of ensuring the safety and well-being of
the community as well as the delivery of police services. Since the functions of a
Police Department have a major impact upon the community, standards of
conduct for police personnel are higher than standards applied to the general
public. In this regard Department Members will conduct themselves in a manner
which does not bring discredit upon individuals, the Department, the City of
Colorado Springs or the community.
C 1301.25. CONDUCT UNBECOMING A POLICE OFFICER:
Members of the Colorado Springs Police Department shall conduct themselves at
all times, both on and off duty, in such a manner as to reflect most favorably on
the Department. Conduct unbecoming a police officer shall include that which
brings the Department into disrepute or reflects discredit upon the officer as a
Member of the Department, or that which impairs the operation or efficiency of
the Department or Member.
Flanagan v. Munger, 890 F.2d 1557, 1569 nn. 12 & 13 (10th Cir. 1989) (emphasis added).
22
department against a First and Fourteenth Amendment challenge).10 When an
employee violates a specific rule or regulation to which he or she is subject, the
government employer’s position is strengthened. Connick v. Myers, 461 U.S.
138, 153 n.14, 103 S.Ct. 1684, 1693 n.14 (1983) (citing Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284, 97 S.Ct. 568, 574 (1977)).
Significantly, the rule requiring prior written approval before engaging in
off-duty employment is not obtuse or ambiguous. See Colten v. Kentucky, 407
U.S. 104, 110, 92 S.Ct. 1953, 1957 (1972) (explaining that a rule should comport
with a “rough idea of fairness . . . . and [be] sufficiently specific to provide fair
warning that certain kinds of conduct are prohibited”). “The rule is easily
understood by persons of ordinary intelligence.” Zook v. Brown, 865 F.2d 887,
892 (7 th Cir. 1989) (concerning failure of deputy sheriff to obtain prepublication
review from the sheriff before submitting a letter for publication in a local
newspaper); see Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126,
127 (1926) (determining that a regulation is facially vague when it “either forbids
or requires the doing of an act in terms so vague that men of common intelligence
10
Commenting on the effect of Kelley as supporting the special need for law enforcement
to regulate the conduct of its employees, the Ninth Circuit recognized: “In the wake of that
decision, other courts have noted that the state’s interest in regulating the conduct of its
employees is perhaps at its greatest where paramilitary organizations, such as a police force, are
involved.” Thorne v. City of El Segundo, 726 F.2d 459, 470 n.10 (9th Cir. 1983) (emphasis
added).
23
must necessarily guess at its meaning and differ as to its application”). Therefore,
failure to comply with the rule requiring prior written approval from Sheriff
Bieluch before engaging in any off-duty employment evidences deliberate
disregard for this rule governing the employment of Deputies Thaeter and Moran.
Their knowledge of this rule is further shown by the deputies’ attempts to conceal
their identities in the pornographic videos in which they participated,
demonstrating their realization that this off-duty conduct was done in
contravention of the rules governing their PBCSO employment and the
termination of the two websites that featured the wives of Deputies Thaeter and
Moran, when the deputies received notice of the internal investigation.
In the particularized context of government employees exercising their First
Amendment rights, the Supreme Court confirmed in Roe that the appropriate
analysis is the balancing test established in Pickering v. Board of Education of
Township High School District 205, 391 U.S. 563, 88 S.Ct. 1731 (1968), and
clarified by Connick.11 543 U.S. at 82, 125 S.Ct. at 524-25. This test requires
balancing the speech by the government employee with the “proper functioning of
government offices,” which cannot be compromised.12 Roe, 543 U.S. at 82, 125
11
We note that the Supreme Court confirmed and clarified Pickering and Connick rather
than creating new law in Roe.
12
In his memorandum to the Chairman of the Hearing Review Board, Sheriff Bieluch
explained his reasons for overruling the decision of the Hearing Review Board and upholding the
24
S.Ct. at 525. Roe concerned a police officer who off-duty made a sexually
explicit video of himself masturbating, which he sold over the Internet on the
adults-only section of eBay. Following an investigation, the police officer was
terminated for violating specific police department policies, “including conduct
unbecoming of an officer, outside employment, and immoral conduct.” 13 Id. at 79,
125 S.Ct. at 523; see Pena v. Deprisco, 432 F.3d 98, 111 (2d Cir. 2005) (“[T]he
fact that an officer is off-duty does not prevent him or her from giving assurances
terminations of Deputies Thaeter and Moran: “It is my stated belief that pornographic activity by
deputies is something that would cause embarrassment to other officers, to the Sheriff’s Office
itself, which is the premiere law enforcement agency in Palm Beach County, as well as to me
personally and professionally as the Sheriff.” Folder I, Exh. O at 2.
13
In concluding that such ethical standards as “conduct unbecoming an officer” are not
vague, the Tenth Circuit explained:
“While it is true that this rule is not precise in delineating proscribed
conduct or in positing a standard by which a police officer can evaluate the
propriety of proposed conduct, broad rules such as ones condemning ‘conduct
unbecoming an officer’ or, as here, conduct impairing the operation or efficiency
of the department or bringing the department into disrepute, have been generally
upheld against challenges of facial vagueness . . . .
Capacious phrases such as the one included in the Colorado Springs
Manual are unavoidable. They nevertheless provide adequate notice to police
officers that their conduct, both on and off duty, must meet a high standard of
comportment . . . .
As Judge Leventhal of the District of Columbia Circuit noted in Meehan v. Macy,
392 F.2d 822, 835 (D.C. Cir. 1968), modified, 425 F.2d 469, aff’d, 425 F.2d 472
(1969):
‘[I]t is not feasible or necessary for the Government to spell out in detail all that
conduct which will result in retaliation. The most conscientious of codes that
define prohibited conduct of employees includes ‘catchall’ clauses prohibiting
employee ‘misconduct,’ ‘immorality,’ or ‘conduct unbecoming.’”
Flanagan, 890 F.2d at 1569-70 (quoting Puzick v. City of Colorado Springs, 680 P.2d 1283,
1286 (Colo. App. 1983)) (emphasis added).
25
about what he or she or other police officers will or will not do when acting as
police officers.”). In upholding the terminations of Deputies Thaeter and Moran
against the contrary decision of the Hearing Review Board, Sheriff Bieluch stated:
“Certainly, the Code of Ethics is not so confusing that it would lead the former
deputies to engage in pornographic acts.” Folder I, Exh. O at 2. The Roe Court
clarified that Connick augmented Pickering by making “the threshold test” for
engaging in the Pickering balancing analysis a determination of whether the
government employee’s speech involved a matter of “public concern,” defined as
“a subject of legitimate news interest; that is, a subject of general interest and of
value and concern to the public at the time of publication.” 543 U.S. at 83-84, 125
S.Ct. at 525-526.
Similar to the pornographic conduct of the police officer in Roe, the paid
participation of Deputies Thaeter and Moran in pornographic photographing and
videotaping for Internet display for a fee “does not qualify as a matter of public
concern under any view of the public concern test.” Id. at 84, 125 S.Ct. at 526.
Additionally, despite their attempts to disguise themselves while engaging in
sexually explicit conduct, the deputies’ expressive speech and the fact that they
were recognized as deputy sheriffs with the PBCSO by paying Internet voyeurs
“was detrimental to the mission and functions of the employer”; it reflected on
26
their fitness as deputies and undermined public confidence in the PBCSO. Id.
Therefore, the Pickering balancing test is not applicable to the subject sexually
expressive conduct of Deputies Thaeter and Moran, because their participation in
pornographic photographs and videos for pay is within “the context of restrictions
by governmental entities on the speech of their employees.” Id. at 85, 125 S.Ct. at
526. The district judge properly dismissed the respective cases of the deputies.14
III. CONCLUSION
In this consolidated appeal from the granting of PBCSO and Sheriff
Bieluch’s motion to dismiss, Deputies Thaeter and Moran maintain that their First
Amendment rights were violated when they were terminated for participating for
compensation in sexually explicit photographs and videos available for paid
viewing on the Internet. As we have explained, the deputies not only violated the
regulation requiring prior approval from Sheriff Bieluch before engaging in off-
duty employment, but also their expressive conduct does not qualify for the
Pickering balancing test because it does not involve a matter of public concern
and could affect the efficiency and reputation of the Sheriff’s Office regarding the
14
Since we have concluded that Deputies Thaeter and Moran do not have a legal basis for
their allegations of violation of their First and Fourteenth Amendment rights by the PBCSO
because of the necessary constraints government employment places on the First Amendment
rights of employees, we need not address other related issues that the deputies have raised on
appeal.
27
public. On the facts of this case, there is no legal basis for this case to proceed.
Accordingly, the district judge’s granting defendants-appellees’s motion to
dismiss is AFFIRMED.
28