Do police officers have a First Amendment right to moonlight as porn stars? The Supreme Court may announce as soon as today whether it will take up a case from California that could answer that question as well as others about the government’s ability to control the conduct of its employees outside the workplace.

The 9th Circuit Court of Appeals ruled in January that a lower court was wrong to dismiss a lawsuit brought by a San Diego police officer who was fired for making and selling X-rated videos in his off-hours. In a 2-to-1 decision, the appeals court found that the officer engaged in a filmmaking hobby that “falls within the protected category of citizen comment on matters of public concern.”

In June, the city asked the Supreme Court to take up the case. The court appears to be struggling with the matter. On four occasions in recent months, the case has been on a list for the justices to discuss. In October, the Supreme Court asked for the full record of the case. The outcome of the court’s most recent conference could be announced this morning.

“Somebody’s interested in it,” the officer’s attorney, Michael Baranic, said in an interview.

To some, the ruling from the 9th Circuit in favor of the porn-producing officer is just the latest in a series of outlandish decisions from the appeals court, which is widely considered to be the nation’s most liberal. The court’s most famous recent ruling, in 2002, declared unconstitutional the recitation of the pledge of allegiance in public schools because it contains the phrase “under God.” The Supreme Court reversed that decision on technical grounds earlier this year.

Several legal scholars interviewed for this story said the 9th Circuit’s ruling in Roe v. San Diego pushes the envelope, but is not a huge deviation from prior Supreme Court rulings on the subject.

“Their First Amendment jurisprudence is so messed up,” said a law professor at Chapman University in Orange, Calif., John Eastman. He said he strongly disagrees with the decision but blames the Supreme Court for encouraging it: “Cases like this just demonstrate the folly of going down the road they have gone down.”

Mr. Eastman said the videos in question, which show the officer masturbating in a generic police uniform, don’t deserve any protection under the First Amendment and certainly don’t promote debate on any issue of public interest. “Properly understood, this isn’t speech. And, properly understood, this clearly isn’t a matter of public concern.”

A law professor at the University of California at Los Angeles, Eugene Volokh, was less critical of the ruling.

“I don’t think it’s that zany,” Mr. Volokh said. “It is the 9th Circuit going a little out of its way to find speech to be protected.”

Mr. olokh said the “public concern” test, which was enunciated by the Supreme Court in 1968, is intended to “screen out of all of these cases where really what’s happening is some kind of on-the-job conflict.” Some courts now interpret nearly all expression outside the workplace to involve a “public concern,” while others have given the phrase a more restrictive meaning.

In legal filings, the officer is referred to only by a pseudonym, John Roe. The dispute over Officer Roe’s videos dates to 2000, when a police sergeant noticed a San Diego police uniform for sale on an auction Web site, eBay. The out-of-date uniform was offered by someone with the username”Code3stud@aol.com.”Further investigation revealed that “Code3stud” also had videos and other items for sale in an adults-only section of eBay. From photos on the site, some on the police force recognized “Code3stud” as Officer Roe, though he used a fictitious name and claimed to be from northern California, not San Diego.

An undercover internal-affairs officer bought a pair of underwear from “Code3stud,” as well as a video that showed Officer Roe masturbating. The undercover officer also commissioned and purchased a new videotape that showed Officer Roe writing a citation and then masturbating.

According to court filings, Officer Roe was confronted with the evidence and freely admitted that he was “Code3stud.” He was ordered by his superiors to stop making and selling the tapes. He apparently did so, but left posted on eBay a profile that described some of the explicit items he had sold.

In June 2001, Officer Roe was fired for violating department policies against “immoral conduct” and for disobeying an order.

The officer filed a lawsuit in federal court, claiming his First Amendment rights were violated. A district court judge, Judith Keep, rejected that assertion and tossed out the lawsuit. She said the videos implicated no matter of public concern and that the department was therefore free to fire the officer.

Officer Roe appealed, and two judges on the 9th Circuit ruled that Keep was wrong to dismiss the case. “Roe’s videos are indeed crude and sexually explicit, but they are not obscene under Supreme Court precedents and thus would be entitled to some protection under the First Amendment,” Judge Raymond Fisher wrote. Judge Dorothy Nelson joined in Judge Fisher’s opinion, but a third judge on the panel, Kim Wardlaw, bitterly denounced the decision.

“The majority turns the doctrine of public employee speech on its head – Katie, bar the door! – for the federal courts now will sit in judgment over every adverse public employee action involving not speech on a matter of public concern, but speech in the slightest,” Judge Wardlaw wrote. “That employment decision lies within the sound discretion of the police department, not a federal court sitting as the ‘Supreme Civil Service Commission.'”

Judge Wardlaw agreed that the videos were “minimally expressive” and entitled to some protection under the First Amendment, but she said Officer Roe gave up some of his constitutional rights when he joined the police force.

In its petition to the Supreme Court, an attorney for the city of San Diego, Penny Castleman, said it was absurd to think of Officer Roe’s videos as a contribution to public debate.

“Roe’s complaint contains no allegations whatsoever that he intended a message by his act of masturbation,” Ms. Castleman deadpanned in the filing.

The district court judge and all three 9th Circuit judges who considered the case were appointed by Democratic presidents. Judges Keep and Nelson were appointed by President Carter, while Judges Fisher and Wardlaw were appointed by President Clinton.

Strictly speaking, the appeals court’s decision did not uphold Officer Roe’s right to make X-rated videos while on the police force. Rather, the court found that because the officer’s distribution of the tapes involved a matter of “public concern,” the city would have to prove that the officer’s conduct was disruptive and that the disruption outweighed the officer’s right to free speech.

Under such a test, the 2nd Circuit Court of Appeals last year upheld the Board of Education’s right to dismiss a Bronx High School of Science teacher because of his active role in a group that promotes pedophilia, the North American Man/Boy Love Association.

New York has also had its share of police officers who have shed their uniforms on camera. In 1994, Carol Shaya posed nude for Playboy. She was fired. Legal experts said she undercut any potential claim against the city by using some NYPD paraphernalia in the photo shoot. The following year, Officer Edward Mallia bared it all for Playgirl. He quit the force as the police brass were trying to remove him.

However, the most prominent litigation over the rights of New York police officers outside the workplace has involved racist speech. In one case, the 2nd Circuit in 2002 upheld the police department’s right to dismiss an officer who anonymously sent out racist mailings. A law professor at New York University, Jerome Skolnick, said the case involving the pornographic videos is similar, up to a point.

“You can’t be a cop and have a racist message in New York City – you can’t function properly as a cop,” Mr. Skolnick said. “Can you function properly as a cop if you make X-rated videos? That’s a closer question.”