The 11th Circuit Court of Appeals, based in Atlanta, upheld the discharge of Palm Beach County, Florida, deputy sheriffs who participated in a group sex party with their wives filmed for distribution on Internet sex sites. The May 26 ruling effectively reversed a decision by an administrative appeals board that had voted 3-2 to reinstate the deputies, who then filed a federal lawsuit when the sheriff refused to do so.
According to the court opinion by Circuit Judge Stanley Birch, Ronald Thaeter and Timothy Moran and a third officer, Jack Maxwell—who resigned before he could be discharged—agreed to participate “in sexually explicit photographs and videotapes for dissemination on pay-per-view Web sites operated by Elizabeth Maxwell,” Jack’s wife. The men and their wives got together for a hot session in a hotel room that yielded hundreds of photos and videotapes. The three police officers requested that their faces be obscured because they didn’t want to compromise their day jobs.
Just their luck! An anonymous complaint was made to the sheriff’s office about police officers in online sex videos, and an investigator the Office of Professional Regulation visited the Web site and figured out which officers had participated. The investigator, Paula Kronsperger, felt that the department’s ethics code pertaining to off-duty conduct—stating, “I will keep my private life unsullied as an example to all”—was too vague to be enforced. However, she did fault the officers for failing to get prior approval to take on other employment, even though they were not paid—their wives were, however.
The sheriff, who had no qualms about the ethics code being too vague to fire his porn star deputies, was twice blocked by internal appeals board from doing so. After the second review board ordered him to reinstate them and he declined to do so, the two deputies who refused to accept their firing filed suit claiming their First Amendment rights had been denied.
The First Amendment protects non-obscene sexually explicit photos and films, but those rights can be limited for public employees by the legitimate needs of their employers. The 11th Circuit panel unanimously agreed with the district judge, who had dismissed the case, finding no First Amendment protection for the officers’ conduct. The court relied on the 2004 Supreme Court decision which upheld San Diego’s firing of a police officer who sold his homemade pornographic films on eBay. The off-duty speech or activity of off-duty public employees is protected by the First Amendment when it involves a matter of “public concern,” but the Supreme Court was not ready to include pornography in that category.
Even though the officers attempted to disguise themselves on video, the court found that their actions were “‘detrimental to the mission and functions of the employer,” and reflected on their fitness as deputies and undermined public confidence” in the sheriff’s office.
The Court of Appeals of Virginia rejected a challenge to the state’s evergreen sodomy law on June 13, holding that a 16 or 17-year-old girl cannot effectively consent to having oral sex with a 45-year-old man.
The opinion for the court by Judge James W. Haley, Jr., found no dispute about the fact that William Scott McDonald had “sexual intercourse and oral sex” with L.F., then age 16, twice, in 2002 and 2003. McDonald also did not contest having engaged in similar conduct with A.J., then 17 years old, twice in 2004. Both liaisons were considered consensual by the parties and were carried out in private, and McDonald claimed as a result that the sodomy law under which he was prosecuted was unconstitutional as applied to him.
The Virginia law forbids all oral or anal sex, making it a felony, regardless of the age and gender of the participants, whether it takes place in public or private, and whether it is consensual or not. In light of the 2003 U.S. Supreme Court ruling in Lawrence v. Texas, striking down that state’s Homosexual Conduct Law, the Virginia statute clearly cannot be enforced against consenting adults who engage in private, non-commercial sex.
McDonald argument that the sodomy law is unconstitutional on its face is a losing argument in Virginia, where courts since Lawrence have ruled that only “as-applied” challenges will be entertained. McDonald’s fallback position was that the age of consent for sex in Virginia is 15 so he is in the clear as to both of his sexual partners.
The court disagreed, finding that the age of majority in Virginia is 18, finding a distinction between the age of consent, which in some circumstances is 15, and the age of majority. Lawrence, the court ruled, shelters only sex between adults, thus leaving it open to Virginia to penalize sodomy between adults and “minors,” those under age 18. McDonald had hoped for a creative legal reading finding that since teenagers who are married can engage in sex that would be prohibited to them if not married, the statutory definition of “adult” must be re-interpreted. The court firmly rejected his interpretation.
So far, Lawrence has served in Virginia to invalidate the prosecution of single people for having sex in violation of the fornication law, and has been cited to allow a woman to sue her former live-in boyfriend for giving her herpes, but the Virginia Legislature adamantly refuses to revise the sodomy law to comply with the Supreme Court decision, and the state courts refuse to strike it down.