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Police Blotter: Ex-cops sue over Net-sex video

In this week's installment, former Palm Beach County deputy sheriffs say they were unjustly fired for sex videos on the Web.

"Police blotter" is a weekly CNET News.com report on the intersection of technology and the law.

What: Palm Beach County deputy sheriffs who participated in Internet porn videos showing group sex, oral sex and masturbation sued after being fired.

When: 11th Circuit Court of Appeals ruled May 26.

Outcome: Federal appeals court rejected deputies' claim that their pay-per-view sexcapades were entitled to First Amendment protection.

What happened, according to court documents:

Ronald Thaeter, Timothy Moran and Jack Maxwell were deputy sheriffs with Palm Beach County who agreed to be a part of group sex images and video distributed over the Internet.

The business model was simple: Maxwell's wife, Elizabeth (an on-camera participant), set up a Web site, charged for access and gave a cut of the proceeds to the wives of the other two men. (Moran appeared in still photographs but not streaming videos.) At least three Web sites were involved, and Moran's and Thaeter's wives were also featured.

Some of the materials featured a Palm Beach police car as a prop, with a nude woman posing on them.

In the words of an internal investigator: "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."

Nevertheless, the three men were busted when an anonymous tipster reported the misuse of a Palm Beach patrol car. The Office of Professional Regulation subsequently ordered an investigation by the Bureau of Internal Affairs.

At issue in the investigation is whether the deputies violated the Sheriff's Office's code of ethics, which says: "I will keep my private life unsullied as an example to all." Another requirement is that they seek prior approval before engaging in outside for-profit activity.

On Dec. 23, 2000, Administrative Manager Frank DeMarco recommended that the deputies be terminated, writing: "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."

Thaeter and Moran sued after being fired, saying their extracurricular on-camera sex was protected speech under the First Amendment.

The appeals court ruled, however, that the employment restrictions were constitutional and dismissed the case.

Excerpt from court's opinion (click here for PDF):

"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 Web sites operated by Elizabeth Maxwell, the wife of a third deputy sheriff, Jack Maxwell, who also was a participant. 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 Web site. 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 Web sites on the Internet. Officer Thaeter additionally 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 Web sites. Officer Moran participated in explicit group sexual activity shown in still photography disseminated over the Web sites, but he was not featured in any streaming videos...

"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 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."