GUEST OPINION: Day may be when religion, or lack of, will not matter

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By DAVID L. Hudson Jr.
First Amendment Center
A San Francisco police officer contends in a federal lawsuit that his First Amendment rights were violated when his employer punished him for his off-duty hobby of nude “figure study” photography.

The San Francisco Police Department believes that officer Gared Hansen’s photography of nude women is not appropriate for his position.

In March 2010, Hansen was conducting a photo shoot with two women at a historical ruin in Byron, Calif. The Contra Costa County Sheriff’s Department cited him for trespassing. Hansen informed his superiors of the trespassing citation and submitted a written report of the incident.

The department notified Hansen in January 2011 that he would be subject to discipline for his trespassing citation and for his website, which displayed some of his photography.

Police Chief Gregory Suhr suspended Hansen for 10 days in January 2012.

The department said that “some of the deputies also felt that the site brought discredit on the Department.”

Hansen filed a federal lawsuit in August, contending that defendants retaliated against him for his protected artistic expression. Not only was he suspended, Hansen argues, but he was also denied promotions and advancement.

His complaint in Hansen v. City of San Francisco notes that “none of Plaintiff’s speech activities were taken pursuant to his official job duties, reflect his affiliation with Defendant City or the Department, or attempt to exploit the Department’s image.”

Because Hansen’s photography was not related to his official job duties, the city and the police department cannot rely on the Supreme Court’s ruling in Garcetti v. Ceballos (2006), which says public employees have no First Amendment rights when they engage in official, job-duty speech.

That Hansen’s creative work did not reflect his affiliation with the department distinguishes his case from that of the police officer in City of San Diego v. Roe (2004).

There, a defendant police officer made sexually explicit videotapes of himself in a police uniform.

David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.