The Baltimore Police Department violated an officer's right to free speech when it ordered him to stop his off-duty performances as an entertainer in blackface makeup, a federal appeals court ruled today.
The 4th U.S. Circuit Court of Appeals said Officer Robert M. Berger's performances are entitled to the protection of the First Amendment and that the police department could not claim any overriding public interest in ordering him to stop.
The decision overturned a ruling by U.S. District Judge Walter E. Black Jr.
Berger, who was dismissed from the Baltimore Police Department, performed for free during his off-duty hours in bars and taverns in the Baltimore area. His musical act included an impersonation of Al Jolson, a singer and comedian who often performed in blackface.
In February 1982, an advertisement for a show Berger was to perform at the Baltimore Hilton included a picture of him in blackface, prompting complaints from many blacks.
The NAACP and Baltimore Welfare Rights Organization announced plans to picket the hotel. The show was canceled, but the NAACP complained to police officials.
Berger's commanding officer, Capt. Walter T. Jasper, ordered him to halt the blackface performances, although Berger did not identify himself as a police officer or comment on police operations during his performances.
Black ruled that Berger's act was entitled to the protection of the First Amendment but said the department had an overriding interest to avoid threatened disruptions of the performance and to protect its good relations with the black community.
The appeals court disagreed, finding that the department's needs did not outweigh Berger's right to free speech, even though the question involved entertainment.
"One of the fundamental rights secured by the amendment is that of free, uncensored artistic expression -- even on matters trivial, vulgar or profane," the court said.
Although the court settled Berger's free speech claims, it sent back for a rehearing the department's denial of permission for paid off-duty work. The department may have had legitimate reasons, it said.
The Baltimore Police Department had no immediate comment on the appeals court's decision. Lawyer Barbara Mello, who represented Berger on behalf of the American Civil Liberties Union, said he had been dismissed in 1984 and should be entitled to back pay. "If it's what he wants, we'll seek reinstatement and back pay," she said.
Some of Berger's former colleagues supported the ruling. "They [police administrators] were wrong," said John Laufert of Lodge 3 of the Fraternal Order of Police. "You couldn't find a nicer gentleman than Bobby Berger, and what he was doing was no worse than what any other performer was doing," he said.
However, Emmitt Burns, regional NAACP director, said, "If this decision is allowed to stand, we will have policemen acting like monkeys all across the nation.
"I do not think his First Amendment rights were abridged. There are certain responsibilities that an officer has that are more important than what he does on the side," Burns said.