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Tuesday, June 24, 2008
Does Shaq Have First Amendment Claim Against Phoenix Sheriff Who Took Away His Badge Over Kobe-Rap?

We've blogged before about Shaq's amusing part-time role as a volunteer reserve sheriff (see my post here and Mike's post here). After moving from Miami to Phoenix as part of the "worst trade ever", Deputy Diesel resumed his part-time law enforcement career with the Maricopa County Sheriff.

The Sheriff was not pleased, however, with Shaq's recent "freestyle" Kobe-dis, which aired yesterday on the web site TMZ (warning: mildly unsafe for work). In the profanity-laden performance, Shaq uses a racial epithet, accuses Kobe of ruining his marriage and opines that Kobe could not win a championship without him.

Sheriff Arpaio has now asked Shaq to turn in his badges. "[I]f any one of my deputies did something like this, they're fired," explained the Sheriff.

Could Shaq challenge his termination based on his First Amendment right to free speech? Interestingly, Arizona has recently produced some cases in which law enforcement officers challenged their terminations on free speech grounds. In Dible v. City of Chandler, the Ninth Circuit upheld the termination of a law enforcement officer who participated in his wife's pornographic photo business. The Court opined that his "speech" did not involve a matter of public concern, and therefore was not protected by the First Amendment.

While much of Shaq's rap clearly involved private matters, and his termination resulted more from the terms he used than the content of his expression, what about his assertion that Kobe couldn't win a championship without him? A matter of public concern or importance?


He said the word "ass". I wouldn't imagine that to be reason to fire someone. They just don't understand hip hop culture and don't want to understand it. White women can act like whores in sex in the city and talk about getting banged in the butt, but a brother says the word "ass" in a rap, and he's suddenly a menace to society. Greeeeaaaaatttt....

Anonymous Anonymous -- 6/25/2008 2:21 AM  

Nice catch, Geoffrey. I would say yes it is a matter of public import (what else would anyone expect me to say?). But the courts tend to have a narrow conception of public import with respect to public employees. Besides, even if it is a matter of public import, that only gets Shaq to a balancing test that is heavily weighted towards the employer. And a court is likely to say that the Sheriff is justified in concluding that Shaq's use of racial and sexual words interferes with his ability to perform his (entirely ceremonial) job. Now perhaps this is a misunderstanding of hip-hop culture, but the doctrine never has been culturally sensitive.

Blogger Howard Wasserman -- 6/25/2008 7:03 AM  

He wasn't canned for using any expletives, it was supposedly because of a zero tolerance policy on racial slurs. On his albums, Shaq raps about leaning on the Statue of Liberty when he's tired, what he says in a freestyle shouldn't be taken any more seriously than what he says in his movies as an actor. It's a free speech issue.

Anonymous LSU Football -- 6/29/2008 6:10 AM  

counter-claim by Kobe-- slander per se, calling into question Kobe's competence in his trade or profession by saying he couldn't win a championship without the big Diesel/Aristotle/genie?

Anonymous Anonymous -- 7/02/2008 9:33 PM  

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