[00:00:00] Speaker 02: Well, next to your argument in case 23-16147, Anthony DiFrancesco versus the Arizona Board of Regents. [00:00:08] Speaker 02: Good morning. [00:00:09] Speaker 00: Good morning. [00:00:10] Speaker 00: May I please the court? [00:00:11] Speaker 00: My name is Lauren Brody, and I'm here on behalf of appellant Anthony DiFrancesco to ask the court to reverse the rule 12b6 dismissal of his First Amendment claim on qualified immunity grounds. [00:00:21] Speaker 00: I'd like to reserve three minutes for rebuttal. [00:00:24] Speaker 00: When Appellee Michael Dake fired DeFrancisco from his job at the University of Arizona in 2019, it was clearly established that it would violate the First Amendment if Dake did so to retaliate for speech. [00:00:34] Speaker 02: Let's slow down a little bit for me if you don't mind. [00:00:36] Speaker 02: Thank you. [00:00:37] Speaker 00: Of course. [00:00:40] Speaker 00: When Appellee Michael Dake fired DeFrancisco from the University of Arizona in 2019, it was clearly established that it would violate the First Amendment for Dake to do so to retaliate for speech and for President Robert Robbins to sit idly by. [00:00:54] Speaker 03: But obviously, your problem here is that it wasn't his speech. [00:00:58] Speaker 03: So that's what you have to deal with. [00:01:04] Speaker 03: It doesn't help to simplify the problem. [00:01:05] Speaker 03: It's a very hard and interesting problem, but it doesn't help to simplify it. [00:01:09] Speaker 00: So we are here because appellees succeeded in convincing the district court that the clear line drawn by the First Amendment against retaliation for speech doesn't apply where the victim of the retaliation, here a spouse, [00:01:22] Speaker 00: is not the person who actually engaged in the protected activity speech. [00:01:27] Speaker 00: Appellees told this court that that doesn't implicate the First Amendment or the Constitution at all. [00:01:33] Speaker 00: I can't lie that I do not have a Supreme Court or Ninth Circuit case that says [00:01:38] Speaker 00: It violates the First Amendment for a government to fire the spouse of an employee who engages in protected speech. [00:01:43] Speaker 03: But you have two pretty close in Supreme Court cases, which is the Title VII case, although it's a Title VII case, the reasoning is fairly directly applicable. [00:01:54] Speaker 03: Correct. [00:01:55] Speaker 03: And the Heffernan case, which for some reason is not discussed in the briefs, it seems to me to refute the cases from this court [00:02:07] Speaker 03: and elsewhere, like Wasson, would say that it has to be the individual's speech, First Amendment, his own speech, in order to have a First Amendment claim, because Heffernan clearly says that isn't true. [00:02:20] Speaker 03: So if you put those two together, you're kind of almost there. [00:02:24] Speaker 00: I mean, we agree, and I think that it's telling that the Sixth Circuit has addressed cases in which the victim of the retaliation was not the speaker without even mentioning this is a potential issue, which is why there's a very long line of Sixth Circuit cases ending in multiple cases just declaring this is clearly established. [00:02:42] Speaker 00: And by now, it's not just those Supreme Court cases. [00:02:45] Speaker 00: There are also a number of Supreme Court cases in the public employment context generally. [00:02:48] Speaker 00: There are a number of Supreme Court cases about [00:02:50] Speaker 00: how marital relationships in particular experience a significant amount of constitutional protection from undue government interaction. [00:02:58] Speaker 00: And the cases that have decided this exact issue, including the district court like Lewis and the district court cases in California, [00:03:05] Speaker 00: have all said, look, this has to be obvious. [00:03:08] Speaker 00: It would be a huge gaping hole in the First Amendment. [00:03:10] Speaker 03: Is there any case anywhere that's actually to the contrary? [00:03:14] Speaker 03: There are some that say it's not clearly established. [00:03:16] Speaker 03: There's at least one, I think, Seventh Circuit opinion that says it's an open question. [00:03:21] Speaker 03: But is there any case that says no? [00:03:23] Speaker 00: No. [00:03:23] Speaker 00: Appellees have not identified a direct circuit split, either the district court or the circuit level at all. [00:03:27] Speaker 02: What cases have involved the type of thing we have here where one person is allegedly fired for the speech of another person where that second person was a public employee? [00:03:38] Speaker 02: Here, they're both public employees, but the speaker was a public employee. [00:03:42] Speaker 00: So there are a number of cases that do this. [00:03:44] Speaker 00: The Second Circuit case was one employee was fired for an alleged lawsuit. [00:03:48] Speaker 00: Well, for a lawsuit that was filed that wasn't alleged by another government employee against their mutual employer. [00:03:54] Speaker 00: I think that's the Adler case. [00:03:55] Speaker 00: Adler and Adkins always. [00:03:56] Speaker 00: I get confused in my head. [00:03:59] Speaker 00: And the reality is that the nature of mutual public employment isn't that rare. [00:04:04] Speaker 00: And we also have other situations where it's not employment, but we have close family relationships where the government is nevertheless able to. [00:04:12] Speaker 03: You're starting with the clearly established issue, and that's what the district court started with. [00:04:18] Speaker 03: Wouldn't it be more helpful to actually start with the question of whether this, we don't have a Ninth Circuit case as to whether this actually does violate the First Amendment on the merits. [00:04:28] Speaker 03: And to me, it's just really hard to think about the clearly established issue until you know that this does violate the First Amendment and why. [00:04:40] Speaker 00: I mean, I think the issue raised by your honor is why these cases are not meant to be decided on a motion to dismiss. [00:04:45] Speaker 05: I'm sorry, I'm not hearing you. [00:04:46] Speaker 00: I think the issue raised by your honor is why these types of cases are poorly decided on a motion to dismiss, because we don't have a record of that. [00:04:54] Speaker 03: No, it's not why it was decided on a motion to dismiss. [00:04:56] Speaker 03: It's why it was decided without getting to the merits. [00:04:58] Speaker 03: Now, I understand that under Pearson, that's permissible. [00:05:01] Speaker 03: But in a case like this, which is a totally, at least for the Ninth Circuit novel, [00:05:08] Speaker 03: issue but not elsewhere, I find it hard to think about without first addressing the merits issue. [00:05:17] Speaker 00: So the merits issue being whether or not the speech involved is constitutionally protected. [00:05:22] Speaker 00: And the reason why a motion is missed as a poor vehicle is because we're sitting here having to accept the allegations of the complaint as true. [00:05:29] Speaker 00: And the allegations of the complaint are inherently one-sided because we don't have the benefit of discovery. [00:05:33] Speaker 00: So we don't have any evidence at all about what the real intent here is. [00:05:38] Speaker 00: We don't have a robust record about the scope of employment responsibilities, which is a disputed question of fact. [00:05:43] Speaker 00: We don't have a lot of, there's no evidence about [00:05:46] Speaker 00: You know, the nature of all of the circumstances in which the husband, Goldman, discussed with Robbins and others at the university, his concerns about the recruitment process. [00:05:56] Speaker 02: What plausible, I mean, this is outside the briefing, but I know it was raised below. [00:06:00] Speaker 02: What plausible allegation is there that this was Goldman speaking as a private citizen, as opposed to just within his role in the search committee? [00:06:09] Speaker 00: So we don't look about his role in the search committee. [00:06:12] Speaker 03: I may make trouble hearing you, and I think it's because maybe you're too close to the mic. [00:06:18] Speaker 00: Is this better? [00:06:19] Speaker 00: Just try again. [00:06:21] Speaker 00: Go ahead. [00:06:23] Speaker 00: We look at the two factors, the two main factors, at least for purposes of determining whether the speech is protected, and it's whether it was a public concern and whether the government employee was speaking as a public citizen or a private citizen or a public employee when he engaged in the speech in question. [00:06:38] Speaker 00: The issue of whether he was a public, whether he was speaking within the scope of his job duties, he wasn't. [00:06:45] Speaker 00: He was the CFO of the University of Arizona. [00:06:47] Speaker 03: It doesn't matter, right? [00:06:48] Speaker 03: Because at this point, no one is challenging that holding. [00:06:51] Speaker 03: I mean, it's concerning because I find it a very difficult question, but it's not before us at this point. [00:06:58] Speaker 03: That issue is not before us as to whether Goldman's speech was itself protected. [00:07:05] Speaker 00: Well, to answer Your Honor's question about whether or not the merits issue is resolved, whether or not the speech is protected, both of those are... I'm not talking about whether Goldman's speech is protected. [00:07:15] Speaker 03: I'm talking about whether De Francesco has a... [00:07:23] Speaker 03: a retaliation cause of action under the First Amendment. [00:07:30] Speaker 03: One of the reasons that it seems difficult here is because you had a First Amendment intimate association claim originally, and it's dropped out. [00:07:42] Speaker 03: And the case law seems to be some amalgam of a First Amendment intimate association and [00:07:54] Speaker 03: First Amendment speech claim, your opponents contend that the whole First Amendment intimate association piece is out of the case because you dropped it out of the complaint. [00:08:06] Speaker 03: And if that were true, we'd go home, and we wouldn't worry about the other. [00:08:12] Speaker 03: So a response to that would be helpful. [00:08:14] Speaker 00: Sure. [00:08:15] Speaker 00: Nothing has been dropped from the complaint. [00:08:17] Speaker 00: The cause of action that is at issue here has been the same cause of action that has always been there. [00:08:22] Speaker 00: And it is under the First Amendment. [00:08:24] Speaker 00: It was titled in the original complaint, the First Amendment complaint that's not before the court, and the Second Amendment complaint, First Amendment retaliation. [00:08:31] Speaker 00: That's it. [00:08:32] Speaker 00: So whether or not that retaliation claim only implicates free speech or the right of intimate association has not. [00:08:39] Speaker 03: Or a combination. [00:08:40] Speaker 03: Or a combination of both. [00:08:45] Speaker 03: I gather it matters to your First Amendment claim that these two people had a First Amendment protected right of intimate association and that there was retaliation. [00:08:57] Speaker 03: based on the speech of one of them. [00:08:59] Speaker 00: That's correct. [00:08:59] Speaker 00: The linkage here is that the retaliation only occurred because of the close personal relationship. [00:09:04] Speaker 00: It wasn't against a random third party. [00:09:06] Speaker 02: What is the First Amendment valence to that? [00:09:07] Speaker 02: It doesn't seem that their spouse is because of a free speech reason, or their spouse is because of an intimate association. [00:09:16] Speaker 02: So it would seem that the more plausible right here would be some type of substantive due process right to association, not any sort of free speech right when your client wasn't actually the speaker. [00:09:27] Speaker 00: So the cases like Lewis, for example, have addressed this under both the First Amendment free speech as well as the intimate association and found that both [00:09:37] Speaker 00: are a plausible basis to move forward. [00:09:39] Speaker 03: I mean, the Supreme Court law is clear that there is a First Amendment grounded right of Intermittent Association. [00:09:44] Speaker 03: As well as the 14th Amendment, yes. [00:09:45] Speaker 03: I mean, it's been said to be confused, but in fact, Duarte is flat out says that. [00:09:49] Speaker 03: Correct. [00:09:51] Speaker 04: So I think Judge Brecht just asked, how do you ground this in the First Amendment? [00:09:58] Speaker 04: And I'm struggling with that, because there is two different types of association. [00:10:01] Speaker 04: First Amendment association, as I've always understood it as, [00:10:05] Speaker 04: We have to hang out together in order to be an incubator in order to make our points. [00:10:09] Speaker 04: And if you break up the association, if you say you can't have a certain club or a group, then you won't be able to have the incubator of ideas that will speak. [00:10:19] Speaker 04: So that's association in order to express, expressive association. [00:10:23] Speaker 04: Obviously, intimate association is marriage, relationships, et cetera. [00:10:30] Speaker 04: I think your answer to Judge Breast is, well, courts have rooted it in both, but what is the . [00:10:35] Speaker 04: . [00:10:35] Speaker 04: . [00:10:36] Speaker 04: I have a follow-up question, because I think you're right. [00:10:39] Speaker 04: Courts have done so, but it's not clear to me at all. [00:10:41] Speaker 04: In fact, it's less than clear. [00:10:43] Speaker 04: I do not . [00:10:44] Speaker 04: . [00:10:44] Speaker 04: . [00:10:44] Speaker 04: I'm having trouble seeing how there's a First Amendment right . [00:10:49] Speaker 04: . [00:10:49] Speaker 04: . [00:10:49] Speaker 04: there is a First Amendment right of association, but how that is implicated in a case like this. [00:10:55] Speaker 00: So courts have discussed intimate association under the First Amendment in addition to expressive association. [00:11:01] Speaker 04: But they but they're also so I guess maybe I should just follow up with my second question then which is if you look at the Second Amendment in the Sixth Amendment cases it seems pretty clear that they are coming at this from a different angle and even within the Sixth Amendment line of cases the judge the judges have said well [00:11:15] Speaker 04: In the Sixth Circuit cases, judges have sort of—we're not really sure where this comes from. [00:11:23] Speaker 04: And they've said, well, I think they started it in the First Amendment, and then they maybe ended up in the 14th. [00:11:29] Speaker 04: There's been some discussion, at least recently, about maybe this belongs to the 14th Amendment. [00:11:34] Speaker 04: But the question I have for you is, [00:11:36] Speaker 04: A, do you think that's true, that there's sort of a mix of where, it's like, let me see if you agree with this. [00:11:45] Speaker 04: It's like there is a lot of support for the fact that this right must exist. [00:11:51] Speaker 04: But it's, judges are having trouble, courts are having trouble being [00:11:56] Speaker 04: figuring out exactly how it works and where it comes from. [00:12:00] Speaker 04: And if that's the case, then the ultimate question I want to ask is, how does that feed into the qualified immunity analysis? [00:12:06] Speaker 04: Because if you have sort of a fairly broad consensus that some right exists but that right, but we don't know how it comes about, [00:12:15] Speaker 04: It's hard to say it's clearly established, it feels like. [00:12:18] Speaker 04: Although I suppose you could say it's clearly established, but we don't know where it comes from. [00:12:21] Speaker 04: But you see where I'm coming from. [00:12:23] Speaker 04: It feels a little weird to say there's this clearly established right. [00:12:25] Speaker 04: There's a robust consensus. [00:12:28] Speaker 04: We don't have any consensus about where it comes from, but it's robust enough that it must exist. [00:12:32] Speaker 04: That feels funny to me. [00:12:33] Speaker 00: So all of the cases that we've been talking about only address this right as arising under the First Amendment, not the 14th Amendment. [00:12:39] Speaker 00: The cases that this court has decided under the 14th Amendment tend to be whether particular sort of less close than marriage relationships enjoy some level of constitutional respect from government intrusion. [00:12:53] Speaker 00: And so those are the cases cited in the opposition brief about whether a relationship with a sex worker, a relationship between a therapist and its patient enjoys a modicum of privacy from state intrusion. [00:13:03] Speaker 00: So that's sort of a different body of law than what we're talking about here. [00:13:06] Speaker 00: I will agree with your honor that the cases have identified some confusion over whether it is just a pure free speech clause of the First Amendment, whether it is the associational right arising under the First Amendment, or whether it's some combination of the two of those things. [00:13:25] Speaker 00: For purposes of it being clearly established, there are a lot of constitutional [00:13:31] Speaker 00: like theories and tests that we do not require government officials to know and be able to articulate with precision before the right is clearly established. [00:13:41] Speaker 03: Essentially what you're saying is they have to know that they can't do it. [00:13:45] Speaker 03: Correct. [00:13:45] Speaker 03: That is the standard. [00:13:47] Speaker 03: Whether they can't do it because it's this part of the First Amendment or that part of the First Amendment. [00:13:52] Speaker 00: Or whether it's incorporated to the states. [00:13:54] Speaker 03: It doesn't affect the fact that they should know they can't do it. [00:13:55] Speaker 04: Correct. [00:13:59] Speaker 04: I suppose that can be true. [00:14:01] Speaker 04: It just feels kind of physical. [00:14:02] Speaker 04: Let's say there were three different circuits, and the one circuit said, you have a right to do this, and it's because of the First Amendment. [00:14:08] Speaker 04: And you have a second circuit that says, you have a right to do this, and it's because of the Second Amendment. [00:14:12] Speaker 04: And you have a, we'll skip over the third, you have a right to do this because of the Fourth Amendment. [00:14:19] Speaker 04: And I guess you could just add it all together and say there's a robust consensus, even though there's not a robust, I mean, I think you have to say there's not a robust consensus in my somewhat crazy hypothetical that there's a reason why. [00:14:32] Speaker 04: And so it just feels kind of funny to say it's clearly established when, if they're not really sure, if it's not clearly established at all where the right is actually coming from. [00:14:42] Speaker 00: The source of the riot emanates from the constitutionally protected activity, which is why we have this line of cases like this one, where it is not just the fact that they're married. [00:14:53] Speaker 00: We're not just talking about a case in which the only reason the retaliation occurred was [00:14:58] Speaker 00: due to some desire to interfere with the party's marital relationship, that might be a better intimate association claim. [00:15:04] Speaker 00: Here, the start of the analysis is that the husband, Goldman, engaged in protected speech. [00:15:10] Speaker 00: And because Goldman left, and because of the change of command of the university. [00:15:13] Speaker 04: That's why I think it's always a First Amendment retaliation, because you are firing somebody because of somebody's speech. [00:15:20] Speaker 04: So that makes sense that it has to have some tie to the First Amendment. [00:15:24] Speaker 04: You know you're firing, but it also seems to me like it has to have some fairly strong tie to the 14th Amendment to due process to intimate Association. [00:15:34] Speaker 04: Because that at the end of the day, if you say I'm firing you because I woke up this morning. [00:15:40] Speaker 04: And some politician that has no relationship to you just made me mad. [00:15:43] Speaker 04: And so I'm just going to fire somebody in my chambers, one of my clerks, right? [00:15:46] Speaker 04: Because I'm just mad at some politician or so. [00:15:48] Speaker 04: There's no intimate association between my clerk and that. [00:15:51] Speaker 04: And so the theory seems, to me at least, that it has to be both. [00:15:58] Speaker 04: It's a hybrid type thing. [00:16:00] Speaker 04: But the courts haven't really made that clear. [00:16:03] Speaker 04: So I'm just struggling with why that's clear at all. [00:16:07] Speaker 04: And that's my biggest problem that happened with it. [00:16:10] Speaker 00: Because the courts that have analyzed this have analyzed the same questions we're dealing with here. [00:16:14] Speaker 00: Is the speech involved protected? [00:16:16] Speaker 00: Is the activity involved, such as filing a lawsuit, is that protected under the Constitution? [00:16:20] Speaker 00: That's the analysis and why. [00:16:22] Speaker 00: We could argue it's an alternative interpretation as whether it's under the association and whether he can show as a matter of law that his relationship was damaged because of the interference that occurred. [00:16:36] Speaker 00: which is the sort of type of legal analysis that applies to an intimate association claim opposed to the First Amendment, which is subject to this arguably more burdensome test of is the speech protected? [00:16:47] Speaker 00: Was it the substantial factor or motivating cause? [00:16:49] Speaker 00: Was he speaking as a private citizen or a public employee when he gave the speech? [00:16:53] Speaker 00: Those are all factors that we've addressed because we think the correct analysis in light of the case law that does exist [00:16:59] Speaker 00: has to find that the speech is part of the equation because it's the motivation for that. [00:17:04] Speaker 00: And if we're wrong after discovery, then sure, they can remove for summary judgment, including on qualified immunity grounds when we lose. [00:17:10] Speaker 00: But sitting here today, there isn't a case on the other side. [00:17:14] Speaker 00: We just have these cases saying, this has to be protected, this is protected, it's clearly established that this is protected. [00:17:20] Speaker 00: And those cases that have done this have analyzed it in a way of speech. [00:17:22] Speaker 03: But this is essentially what the Supreme Court Title VII case said. [00:17:26] Speaker 03: It said, well, obviously this was projected. [00:17:28] Speaker 03: The only hard question is who could bring the lawsuit. [00:17:31] Speaker 03: And they said, well, yes, the second employee, the one who was the speaking, could bring the lawsuit, because he, in the employment context, essentially is the one who suffered the injury. [00:17:45] Speaker 03: And in that instance, [00:17:50] Speaker 03: Judge Scalia's opinion emphasized the fact that they were both employees and that that mattered. [00:17:57] Speaker 03: So not clear why it shouldn't matter here as well. [00:18:01] Speaker 03: So I think that case is closer in than appears, maybe. [00:18:04] Speaker 00: I mean, we agree. [00:18:05] Speaker 00: And when you look at the qualifying meeting analysis, what would the Supreme Court or the Ninth Circuit decide if it had been presented with this case? [00:18:11] Speaker 00: We have the Biggs case, which the holding isn't really opposite because it deals with another exception. [00:18:16] Speaker 00: And we have the Supreme Court case. [00:18:17] Speaker 00: The analysis of those has not said, oh, the spouse of a person engaged in protected activity has absolutely no rights. [00:18:25] Speaker 02: In doing the qualified immunity analysis, are we required to assume that the underlying speech here was protected? [00:18:33] Speaker 02: Because I do have questions as to whether that's been properly alleged. [00:18:37] Speaker 00: You don't have to assume that. [00:18:39] Speaker 03: You do have to read the allegations in the light most favorable, and we think that those allegations- Well, I thought we do have to assume it because the defendants have specifically and expressly abjured any challenge to it. [00:18:54] Speaker 03: The district court said so, and the defendant said, we're not challenging that. [00:19:01] Speaker 03: So it seems to me we have to assume it for now. [00:19:05] Speaker 03: I find it troublesome. [00:19:07] Speaker 03: I'm not at all sure that it's protected. [00:19:10] Speaker 03: But for present purposes, it appears we do have to assume it. [00:19:15] Speaker 00: I mean, in full disclosure, I think on a motion to dismiss, I think whether or not we've stated a claim is a question of law that is an independent ground that the court can reach on its own, which is why we did address it in our opening brief. [00:19:28] Speaker 00: And I do think that defendants did challenge it in their opposition. [00:19:30] Speaker 03: But what it didn't challenge is whether Goldman's speech was [00:19:36] Speaker 03: Correct. [00:19:37] Speaker 03: I think that's what Judge Bress meant. [00:19:40] Speaker 02: That is what I'm getting at, and I just don't see how . [00:19:43] Speaker 02: . [00:19:43] Speaker 02: . [00:19:43] Speaker 02: I'm having real trouble looking at the complaint and seeing how that . [00:19:47] Speaker 02: . [00:19:47] Speaker 02: . [00:19:47] Speaker 02: It wasn't the basis for the district court's decision, I recognize that, but I'm asking myself, where is this case going from here? [00:19:53] Speaker 02: I really have a hard time seeing how Goldman was speaking as anything other than person who was involved in the search committee. [00:20:02] Speaker 02: I mean, a private, he's not really acting in a private citizen in any meaningful way. [00:20:07] Speaker 00: To say that the fact that he learned about something in his capacity as a public employee means that he's necessarily speaking as a public employee, not a private citizen. [00:20:14] Speaker 03: It's not because he, I mean, I don't think we should be getting into this, but it's not because he was learned about it as a public employee. [00:20:23] Speaker 03: It's because he was both on the committee and at the meeting in which this was discussed because of and in the role of his [00:20:32] Speaker 03: his employment and you can say, well, he was a volunteer, but he wasn't, he was getting, I'm sure he was getting paid that day for being at that meeting because he had a high position in the university and the people with high positions in the university were having a meeting to discuss this employment and this employment decision. [00:20:54] Speaker 03: And that's why it was there, but it's not before us. [00:20:58] Speaker 00: So to answer Judge Brecht's question, I mean, it would be equally true of the plaintiffs in Kozaltzer v. the city of Salem, Oregon that they experienced the safety violations while they were on the job or they were paid to be there. [00:21:12] Speaker 03: Well, that all could be true if he had gone after the meeting to say, you know, some officer of the university and said, you know, I have a problem I want to tell you about that I happen to know about, which I found out about because I was in committee. [00:21:26] Speaker 03: I really have a problem, and I want to talk to you about it." [00:21:29] Speaker 03: But that's not what happened. [00:21:30] Speaker 03: He was in a meeting which was discussing this problem, this question, and he was in that meeting because of his position. [00:21:39] Speaker 03: And they were going around the room and discussing it, as I understand it, and this is what he said, and other people said other things. [00:21:47] Speaker 03: But it's not before us. [00:21:51] Speaker 00: We can agree it's not before you. [00:21:55] Speaker 00: But to just get back to the question, he was in this meeting. [00:21:58] Speaker 00: We're talking about the university president. [00:21:59] Speaker 00: There are a few other people at the university that he could report this to. [00:22:03] Speaker 00: I mean, that's the highest most position in the university. [00:22:07] Speaker 00: He was in a room with everybody else at the university with any power, the general counsel of the university, the chief of staff to the university president, the provost. [00:22:16] Speaker 00: This is where Goldman raised his concerns. [00:22:21] Speaker 00: responsible for ferreting out ethical violations at the University of Arizona as CFO or on the search committee, and the Ninth Circuit is held that it is a rare case where reporting... Well, I'm sure you will argue all this out later on in this case if the case continues. [00:22:37] Speaker 00: Correct. [00:22:39] Speaker 02: Well, we've kept you going here. [00:22:40] Speaker 02: Why don't we put three minutes on the clock for rebuttal, and we'll see you in a few minutes. [00:22:44] Speaker 02: Thank you. [00:22:57] Speaker 05: Good morning, Your Honors, and may it please the Court. [00:22:59] Speaker 05: Dan Dowd on behalf of the Appalee's University of Arizona President Robert Robbins and Executive Vice President Michael Dake. [00:23:08] Speaker 05: Your Honor, this appeal fails on application of prong to of the qualified immunity analysis. [00:23:16] Speaker 05: The appellant hasn't been able to show that a constitutional right that he held, which has been a moving target, [00:23:24] Speaker 05: was clearly established in 2019 when Dr. Dague terminated. [00:23:27] Speaker 03: There are a lot of cases holding under similar circumstances that an individual who suffers adverse consequences because of the speech of somebody in whom they are engaged with an intimate relationship [00:23:50] Speaker 03: has a First Amendment cause of action. [00:23:53] Speaker 03: The exact grounds may differ, but if you're an officer of a university and you want to know could you do this, every case you find would say no. [00:24:04] Speaker 03: Is that right? [00:24:05] Speaker 03: Or maybe would say we don't know, or maybe would say it's not clearly established, but no case would say yes. [00:24:11] Speaker 05: I'm not aware of a case that says, yes, you can do this. [00:24:15] Speaker 05: And that's not the standard for whether qualified immunity applies. [00:24:18] Speaker 03: But in 2019... But as to the bottom line of whether you can do this, leave aside differences about why. [00:24:24] Speaker 03: There are a lot of cases that say no, and none that say yes. [00:24:28] Speaker 03: Is that right? [00:24:29] Speaker 03: And two Supreme Court cases that come pretty close to saying no. [00:24:33] Speaker 05: Well, and pretty close is the reason why qualified immunity applies. [00:24:37] Speaker 05: Watching the consternation of this panel, it's the same consternation we've had in going through three different complaints. [00:24:42] Speaker 03: No, there isn't a lot of consternation, really, as to the outcome, which is that any [00:24:49] Speaker 03: reasonable person would say, well, I mean, it seems to me maybe it wasn't wise to do this in a motion to dismiss. [00:24:57] Speaker 03: I assume your ultimate defense is that's not what happened here. [00:25:01] Speaker 03: And if we knew what happened here, we might have a very different view of the situation. [00:25:06] Speaker 03: But if this were what happened here, if somebody said, if what had happened here is they had gone up to Mr. DeFrancisco and said, you know, because your husband, Mr. Goldman, said this, we don't want you around here anymore. [00:25:18] Speaker 03: We're firing you. [00:25:20] Speaker 03: Let's assume those were the facts. [00:25:25] Speaker 03: The notion that any reasonable university official would think that was OK seems fairly far-fetched. [00:25:31] Speaker 05: Well, Your Honor, respectfully. [00:25:33] Speaker 03: We know you can't do it under Title VII. [00:25:35] Speaker 03: We know that it doesn't matter whether it was under Heffernan, whether it was his speech or someone else's speech. [00:25:44] Speaker 03: And we know that there are cases in the Sixth Circuit and the Seventh Circuit and actually in the Eleventh Circuit and a good number of district court cases that say you can't do it. [00:25:56] Speaker 03: They may differ about why, but they say you can't do it. [00:26:00] Speaker 05: I don't think that's quite right, Your Honor. [00:26:02] Speaker 05: In the Eleventh Circuit, we have the Gaines case. [00:26:04] Speaker 03: Yes, and the Gaines case says you can't do it, except it's not clearly established. [00:26:08] Speaker 05: Well, the Gaines case involved an allegation of a direct intrusion on the intimate relationship between husband and husband. [00:26:13] Speaker 05: There's no allegation here that there's been any invasion of the intimate association itself. [00:26:18] Speaker 05: It's that I was punished because of the conduct of my husband. [00:26:22] Speaker 05: So we're not aware of any Ninth Circuit case that has defined the contours of an intimate association right, the scope, the contours, or how it's violated to include the fact situation here. [00:26:34] Speaker 02: What cases exist where there's retaliation against one public employee for the speech of another public employee? [00:26:42] Speaker 02: What are the cases that you're aware of that involve that situation, which is what we have here? [00:26:46] Speaker 02: Sure. [00:26:47] Speaker 05: So what we think is the leading case is Gaines out of the 11th Circuit, 2017 case evaluating 2013 conduct where the plaintiff was the daughter of the father who was a member of the board of supervisors. [00:27:01] Speaker 05: The plaintiff was a school teacher in the same county. [00:27:04] Speaker 05: In that case, the court applied qualified immunity and said, [00:27:09] Speaker 05: under a First Amendment right of free speech held by the non-speaking daughter, that's not clearly established. [00:27:14] Speaker 05: We're not even sure if that exists, because the only law we're aware of talking about it is a Title VII case, the Thompson case, which has an expressed provision prohibiting the retaliation at issue. [00:27:25] Speaker 05: It also evaluated the right of intimate association in that case, which was alleged. [00:27:30] Speaker 05: And the court said that it has not been clearly established that the type of conduct here [00:27:36] Speaker 05: violates the intimate association between close family members. [00:27:41] Speaker 05: So that's a case that we would promote to you. [00:27:43] Speaker 05: There is a patchwork quilt of cases that have been provided to you by our opponent, unpublished cases, Sixth Circuit cases that have not been followed outside the Sixth Circuit, and the case that they rely most heavily on is from the Middle District of Alabama, that the Gaines case expressly chose not to follow in deciding whether there was a clearly established right or not. [00:28:04] Speaker 05: So there are cases, typically under a right of intimate association, that have found that the cause of action by the non-speaking family member exists. [00:28:14] Speaker 05: They have not been followed in this circuit and they haven't been embraced by the United States Supreme Court at this point. [00:28:21] Speaker 05: So this right, it may exist. [00:28:25] Speaker 05: It's hard to tell. [00:28:26] Speaker 05: We don't know what the right is. [00:28:28] Speaker 03: For example, you rely on your brief a lot on the Wasson case, W-A-S-S-O-N, which seems to me to have been clearly overruled by Heffernan. [00:28:36] Speaker 03: It's no longer good law. [00:28:38] Speaker 03: Do you disagree with that? [00:28:40] Speaker 05: I don't know, because when you mentioned Heffernan, I had that litigants [00:28:44] Speaker 05: freeze of what is Heffernan and we check that neither side has cited. [00:28:47] Speaker 05: I'm not sure what it says. [00:28:49] Speaker 03: This case is a guide by Wasson. [00:28:50] Speaker 03: Heffernan says in no uncertain terms that what Heffernan was was a public employee who was a police officer who was putting campaign signs around and he was demoted for doing that and he says well they weren't my campaign signs they were my mother's and the [00:29:14] Speaker 03: Court of Appeals said, well, you weren't speaking, so you don't have a First Amendment claim. [00:29:19] Speaker 03: And the Supreme Court said resoundingly, no, you do, because the First Amendment protects against chills, against... It's based on what the motive of the employer is and not who the speaker is, because we're trying to protect chilling of speech more generally. [00:29:37] Speaker 03: And that's true of First Amendment over-breath, and it's true of First Amendment [00:29:43] Speaker 03: facial challenges as well. [00:29:48] Speaker 03: The First Amendment is broader as to who can be protected than other constitutional and statutory claims. [00:29:58] Speaker 03: So Wesson, which was sitting on a different basis, I don't see how it survives. [00:30:03] Speaker 03: How does it survive? [00:30:05] Speaker 05: Well, and again, our case doesn't rise or fall on Wasson. [00:30:08] Speaker 03: We cited, I think... Well, except you do spend a lot of time on the fact that it wasn't his speech and suggests that. [00:30:15] Speaker 03: Therefore, he's defending the First Amendment rights of others, not himself. [00:30:22] Speaker 05: Not quite, Your Honor. [00:30:23] Speaker 05: Respectfully, what we said in our consternation this entire case has been, what right is being alleged to have been violated? [00:30:30] Speaker 05: And the answer that we've received in every brief and every oral argument is its First Amendment retaliation. [00:30:37] Speaker 05: There's no general prohibition on retaliation that hovers over the First Amendment. [00:30:42] Speaker 05: It has to be linked to some right that's actually protected by the First Amendment. [00:30:46] Speaker 05: Speech, association, petitioning the court, religion, something. [00:30:49] Speaker 05: You can't just say First Amendment retaliation, but we're not going to tell you what actual First Amendment right was infringed upon. [00:30:55] Speaker 05: And what we know isn't at issue here is a right of intimate association. [00:31:00] Speaker 05: This isn't where we're arguing waiver because they forgot to argue it. [00:31:04] Speaker 05: This is a case where at the very first oral argument, our opponent said, this is a free speech retaliation case. [00:31:11] Speaker 05: This is not an intimate association case, is not. [00:31:14] Speaker 03: But clearly, I understand that what they're saying is that we don't have to prove that the association at the First Amendment Association was itself harmed. [00:31:27] Speaker 03: It is integral to why they're saying that there has to be a connection to that person. [00:31:33] Speaker 05: Of course. [00:31:33] Speaker 05: We've always said, Your Honor, this is trying to graph two rights together. [00:31:36] Speaker 03: That's correct. [00:31:37] Speaker 03: And what's wrong with that? [00:31:39] Speaker 05: It's never been pled, briefed, or argued. [00:31:41] Speaker 05: And in fact, when questioned about it, they said, no, this is not an Intamin Association case. [00:31:46] Speaker 04: Is that what they said? [00:31:47] Speaker 04: Or did they? [00:31:48] Speaker 04: I mean, there's two types of 14th Amendment Intamin Association claims. [00:31:52] Speaker 04: One would be like a standalone one, right? [00:31:55] Speaker 04: And I think it's probably clear they've disclaimed that. [00:31:58] Speaker 04: But as I understood her this morning, they haven't necessarily disclaimed more of a hybrid approach, which is where it's a First Amendment, [00:32:07] Speaker 04: because you are talking about the allegations that you got fired because of speech, not yours, but somebody else's, but that it has to travel through an intimate association, and so it would be, it would be both mushed together, and have they, I'm just, have they disclaimed that? [00:32:24] Speaker 05: I believe so. [00:32:25] Speaker 05: That's why this is so confounding. [00:32:26] Speaker 05: In paragraph 65 of the original complaint, they said that Di Francesco had a right of intimate association with his husband, Goldman, [00:32:36] Speaker 05: When the second amended complaint got filed, after the oral argument, where the avowal by council was, this is a free speech case, this is not an intimate association case, court of appeals sent it back so that they could amend to address whether or not it was protected speech. [00:32:50] Speaker 05: When they amended, they removed paragraph 65. [00:32:53] Speaker 05: And the district court, as you'll note from her order, said, this is not a case about the right of association, and so I'm not going to revisit my prior holding. [00:33:02] Speaker 05: that that right is not clearly established in this circuit, in this context. [00:33:06] Speaker 05: And it was gone. [00:33:07] Speaker 05: And then we got the appellate briefs where they still don't, they still don't argue that this is sewing together an intimate association with a free speech right and we're under the First Amendment and it's established. [00:33:18] Speaker 05: Instead, we get all of these cases that are based upon the right of the association, but never an argument that that's what's been violated here. [00:33:26] Speaker 04: Never an allegation. [00:33:28] Speaker 04: So it kind of goes to my earlier question. [00:33:31] Speaker 04: If you're wrong about this, and I'm not sure whether you are or not, but I'm curious to hear Counselor Anderson's response to that, but if you're wrong and they have [00:33:40] Speaker 04: planet enough that, yeah, we're not doing a standalone intimate association, but we're doing a hybrid where it goes through both, then what does it take for something like that to be clearly established? [00:33:56] Speaker 04: Can you just point to intimate association cases, and can you point to [00:34:02] Speaker 04: Can you point to First Amendment cases? [00:34:04] Speaker 04: Or do you have to point to them being together in order to have this robust consensus of others? [00:34:10] Speaker 04: Can you cobble together something from a circuit on one and something from a circuit on another? [00:34:15] Speaker 04: I'm just trying to figure out what your view is on what you need to do to have that robust consensus. [00:34:21] Speaker 04: And it's complicated by the fact that the Ninth Circuit has this, we don't have to have a case on point. [00:34:26] Speaker 04: We just have to have a robust consensus. [00:34:28] Speaker 05: Right. [00:34:31] Speaker 05: That's a really difficult question, because in the cases that do exist, the couple that have talked about both of those, and there are a couple that have denied qualified immunity, that Middle District of Alabama, which the 11th Circuit in Gaines chose not to follow, they said, well, the only way that you connect the plaintiff to the person whose constitutionally protected activity was at issue is through their intimate association. [00:34:57] Speaker 05: So you've got First Amendment free speech issues by the actual speaker, and you tie them back to the plaintiff through this right of intimate association. [00:35:05] Speaker 05: There's no case from this circuit that has walked through that analysis. [00:35:09] Speaker 05: And there are cases from around the country that have talked about it, but then applied qualified immunity. [00:35:15] Speaker 05: The other case. [00:35:16] Speaker 03: Can I ask a question? [00:35:20] Speaker 03: I'm looking at, do you disagree that there is a First Amendment right of intimate association? [00:35:27] Speaker 03: Or do you think that's at all in doubt? [00:35:31] Speaker 05: I don't think it's in doubt where the allegation there's been a direct and substantial impairment of the relationship. [00:35:37] Speaker 03: I'm a level above that. [00:35:40] Speaker 03: Does this right exist? [00:35:42] Speaker 03: Under the First Amendment, whatever may also exist under the 14th Amendment. [00:35:47] Speaker 05: In certain circumstances, yes. [00:35:49] Speaker 03: Because Duarte says so flat out. [00:35:52] Speaker 03: I don't know why he keeps saying there's confusion about it. [00:35:55] Speaker 03: We have emphasized that the First Amendment protects those relationships, that is, relationships among family members, including family relationships that presuppose deep attachments, et cetera, et cetera. [00:36:04] Speaker 03: So it just says it flat out. [00:36:06] Speaker 03: And whatever else we may have said that confuses it is really kind of irrelevant. [00:36:10] Speaker 05: Well, I'm only quibbling with, Your Honor, because we're not aware of any court that has applied it in a situation like this when there's no allegation or when they took the allegation of the association. [00:36:20] Speaker 03: No, and I understand that point. [00:36:21] Speaker 05: Or they said, hey, as a result of this conduct, my association with my husband was impinged upon. [00:36:27] Speaker 05: That's not in this case. [00:36:29] Speaker 05: In the cases that have found that, yes, there is a right under the First Amendment to intimate association, those cases have involved allegations of removing a child from a home. [00:36:40] Speaker 05: separating family members? [00:36:43] Speaker 03: This is why it's so disturbing to be deciding this case without any actual facts, but one assumes that if Mr. DeFranchesco lost his job, that he lost his income for some period, and that if that was connected to his intimate association, that would be an injury traced to his [00:37:05] Speaker 03: right of intimate association in fact affected his husband, but we don't know any of that because it's not in the complaint and we have no facts. [00:37:14] Speaker 05: Well, what we do know is Di Francesco saying, I am not seeking to vindicate the rights of my husband in this lawsuit. [00:37:21] Speaker 05: I am seeking to vindicate my own rights. [00:37:23] Speaker 05: And if he lost earnings because he was fired, that's a claim that's personal to him. [00:37:28] Speaker 05: If Goldman wants to come in and say, hey, our miracle community was depleted because my husband lost his job because, because, because, that's not this case. [00:37:36] Speaker 05: It hasn't been alleged and no authority has been provided to say that that would be enough to create a right that Dr. Dake would have known in the spring of 2019, told him that he was violating a constitutional right held not by Goldman, [00:37:50] Speaker 05: by Di Francesco, by terminating Di Francesco. [00:37:54] Speaker 03: One of the problems I have with this case is that I find it extremely unlikely that if you ask Dr. Deakin whenever it was, or if he asked his lawyer, is it okay if I fire this person because of what his husband said, anybody would have said yes. [00:38:09] Speaker 03: Nobody would have said yes. [00:38:11] Speaker 05: But the next question would have been, what right am I violating? [00:38:14] Speaker 03: Well, maybe you're violating his right of intimate association, or maybe you're inviting his first name retaliation, but whatever it is, you can't do it. [00:38:23] Speaker 05: But the maybe is what creates qualified immunity. [00:38:26] Speaker 03: No, it isn't, because the maybe is only as to theory. [00:38:28] Speaker 03: The maybe is not as to outcome. [00:38:31] Speaker 05: Right, but if the right can't be defined, and we still haven't heard, they haven't said, your honors, we are sewing together to clearly establish First Amendment rights, speech and association. [00:38:42] Speaker 05: That's not this case, okay? [00:38:44] Speaker 05: If they had said that and said, that's what we're doing here, those rights may exist. [00:38:50] Speaker 05: The Interment Association right does exist, but it's not clearly established in this situation. [00:38:55] Speaker 05: And certainly the cobbling together of two rights to create a third and say that it's clearly established [00:39:01] Speaker 05: There's no law to support that, no robust consensus. [00:39:04] Speaker 05: It's not an obvious clarity case. [00:39:05] Speaker 05: And there's certainly no controlling authority in this circuit or from the United States Supreme Court. [00:39:10] Speaker 05: And that's the problem that we have here. [00:39:13] Speaker 04: Can I get you to respond to, I mean, you cut through everything. [00:39:17] Speaker 04: It seems like what's going on here is, because one of the things that has been emphasized is, yeah, but there's no circuit that's found that this doesn't exist, which I agree with you. [00:39:27] Speaker 04: That cannot be the standard for qualified immunity. [00:39:31] Speaker 04: But what's driving that thinking is it just feels like you should not be able to fire somebody for the speech of somebody else, a family member. [00:39:44] Speaker 04: And that's, I think, what's driving the courts. [00:39:50] Speaker 04: But as you heard me say earlier, I think it's also clear that [00:39:54] Speaker 04: Your courts are grasping to try to figure out where this thing fits. [00:39:58] Speaker 04: And I don't know how that fits into the qualified. [00:40:00] Speaker 04: I mean, because I think as I, I don't want to put words into my colleague's mouth, but it seems like there's an emphasis that, come on, this right has to exist, right? [00:40:11] Speaker 04: It's almost like this right has to exist. [00:40:13] Speaker 04: You're not going to tell me today that this right doesn't exist. [00:40:18] Speaker 04: What do we do with the fact that it sure seems like a strong feeling that this right must exist, but it's not super clear where it comes from, there's not a consensus on where it comes from? [00:40:31] Speaker 04: What do we do with that for purposes of qualified immunity? [00:40:35] Speaker 05: Well, respectively, you apply qualified immunity here, and if this court wants to define those rights, [00:40:41] Speaker 05: It certainly can. [00:40:43] Speaker 05: I mean, I think that the jurisprudence is calling out for someone to really say what the First Amendment right of intimate association is. [00:40:49] Speaker 04: But it's a little hard for us to do that because of the, in this case, because of the fact that, you know, the disclaimer of the intimate associate, et cetera. [00:40:56] Speaker 04: That seems a little bit harder. [00:40:58] Speaker 05: No, you're right. [00:40:59] Speaker 05: You're right. [00:40:59] Speaker 05: I guess you could address the First Amendment free speech right being held by the non-speaker based on the allegedly protected activity of a spouse. [00:41:07] Speaker 05: I mean, just as a footnote. [00:41:08] Speaker 04: But you're saying, generally speaking, we could lock it down here, but your feeling is that if all there is is a really strong feeling that this right must exist, but there's not a robust consensus as to where it comes from or what is the source of this, then you don't think that qualified immunity exists, I guess? [00:41:28] Speaker 04: I assume that's your position? [00:41:30] Speaker 04: Well, I think that it qualifies immunity. [00:41:32] Speaker 05: I mean, it does exist. [00:41:34] Speaker 05: Yes. [00:41:35] Speaker 05: Yes. [00:41:35] Speaker 05: result in this panel affirming Judge Jorgensen. [00:41:39] Speaker 05: There's a lot of strings out there. [00:41:43] Speaker 05: They haven't been sewn together into what anybody could say was clearly established or would have told the actor in the spring of 2019 that there's a clearly established constitutional right. [00:41:54] Speaker 05: Not sure what it is, where it sits, or what its scope is, but this just feels wrong. [00:41:57] Speaker 05: You can't do it. [00:41:59] Speaker 05: That would paralyze the operation of government offices who are qualified to protect them from making reasonable but mistaken decisions. [00:42:05] Speaker 03: I assume that the defense in this case is going to be that that's not what happened. [00:42:09] Speaker 03: They fired him for some completely different reason, right? [00:42:12] Speaker 03: I presume that's, I mean, one of the things that's frustrating here is we're sitting here and deciding a non-case. [00:42:18] Speaker 01: Well, that shouldn't get in your way. [00:42:21] Speaker 03: Because, in fact, as I said before, if Zeke had gone and said, you know, I don't like what your husband said, I'm firing you for that reason. [00:42:33] Speaker 03: He never would have done that. [00:42:36] Speaker 03: No one ever would have thought that was OK. [00:42:38] Speaker 03: I understand. [00:42:39] Speaker 03: Maybe they don't know why, but they wouldn't have done it. [00:42:42] Speaker 03: And your defense is surely going to be that that's not what happened or that Goldman's speech wasn't protected. [00:42:47] Speaker 03: So we're sitting here with really a non-case. [00:42:51] Speaker 03: Is that true? [00:42:52] Speaker 03: in your view. [00:42:53] Speaker 05: Not for purposes of prong to of qualified immunity. [00:42:56] Speaker 05: I understand that. [00:42:57] Speaker 05: Every fact in their favor, we've assumed. [00:42:59] Speaker 05: It can't get any better for them in the prong to analysis than it is today. [00:43:03] Speaker 02: I think what Judge Berzon's asking is, if you were in summary judgment right now, doesn't it matter? [00:43:08] Speaker 02: Don't you think your client's defense to this is likely not going to be, we believe that we had a right to fire somebody for the First Amendment protected activities of somebody else. [00:43:17] Speaker 02: It's going to be, we fired him because of [00:43:19] Speaker 02: some other employment-related reason that you may well have. [00:43:23] Speaker 03: Well, Goldman's speech wasn't protected in the first place. [00:43:25] Speaker 02: No, correct. [00:43:25] Speaker 05: I mean, and that was the focus of the first motion to dismiss. [00:43:28] Speaker 05: And it was dismissed on that grounds that it wasn't. [00:43:30] Speaker 02: And the second one, too, frankly. [00:43:32] Speaker 05: Well, the second one, the court found for purposes of this ruling, I will assume that the speech is protected. [00:43:37] Speaker 05: That is going to be a fertile battleground if, hopefully not, this case goes back and we get to the facts. [00:43:45] Speaker 05: But for purposes of the qualified immunity analysis, [00:43:49] Speaker 05: It doesn't get any better for them for analyzing Prong 2 than us taking all of their allegations as true. [00:43:55] Speaker 05: And we don't need any more facts because it's a pure question of law. [00:43:58] Speaker 05: And this right, respectfully, it just didn't, it wasn't clearly established when Dr. Dake did what he was alleged to have done in the spring of 2019. [00:44:07] Speaker 05: With that, Your Honors, I've gone over my time. [00:44:09] Speaker 05: We'd ask you to affirm. [00:44:10] Speaker 05: Thank you very much. [00:44:12] Speaker 02: Thank you, Mr. Dowd. [00:44:14] Speaker 02: Ms. [00:44:15] Speaker ?: Brody. [00:44:21] Speaker 00: Thank you, Your Honors. [00:44:23] Speaker 00: I just have three points to make in response. [00:44:25] Speaker 00: So the first, opponents put a lot of weight on the Gaines case. [00:44:30] Speaker 00: An obvious reason to ignore the holding of that case that it's not clearly established is because the law of the 11th Circuit applied in Gaines is that only a on force Supreme Court case or 11th Circuit case is capable of clearly establishing the law. [00:44:43] Speaker 00: That is why it didn't pay any attention to the other circuit cases or the District Court case within the 11th Circuit. [00:44:48] Speaker 00: That is the only reason [00:44:50] Speaker 00: that supports the decision that it is not clearly established. [00:44:52] Speaker 00: It's the only reason that it gave. [00:44:55] Speaker 00: There's been a lot of discussion about whether or not we removed or waived this association claim. [00:44:59] Speaker 00: And this was a response to Appellant's argument during the last panel, where it said we had waived the free speech claim entirely. [00:45:07] Speaker 00: And we were not basing our claim on speech whatsoever. [00:45:09] Speaker 00: It was exclusively about intimate association. [00:45:12] Speaker 00: And that because there are two sources of the right of intimate association, the First Amendment and the 14th Amendment, they were entitled to qualified immunity because it wasn't clear where that right emanated. [00:45:22] Speaker 03: But it is clear, because Warte says so. [00:45:25] Speaker 00: Yes, we agree that the First Amendment is the only right of association to the extent it exists or not. [00:45:32] Speaker 00: And whether or not the free speech clause includes within its ambit people in a close relationship with them, that it would deter, like the classic First Amendment cases will deter the exercise of free speech for the retaliation to happen. [00:45:47] Speaker 00: And it would chill the exercise of free speech to be able to freely retaliate against somebody in a close personal relationship. [00:45:54] Speaker 00: If you knew that your husband would be fired as a public employee, if you engage in free speech, you wouldn't engage in the speech. [00:45:58] Speaker 00: There's a likelihood that that would be chilled. [00:46:01] Speaker 00: And so whether or not that's just the free speech clause or whether or not courts have reached that conclusion because they also appreciate that the First Amendment includes protection for marital relationships like husbands and other close spouses, family members. [00:46:15] Speaker 00: When we looked at the Title VII case, the Supreme Court said, we will extend this to anyone in a close family relationship. [00:46:21] Speaker 00: That's enough for us. [00:46:22] Speaker 00: And when we have the other cases, like there's, I think, Matucic out of the Second Circuit, the debate in that case wasn't whether the First Amendment protected it. [00:46:31] Speaker 00: It's like, well, our fiance is close enough that that relationship would have been. [00:46:35] Speaker 03: But the question is whether you have [00:46:37] Speaker 03: essentially waved that part of the theory out of the case. [00:46:41] Speaker 00: Any questions? [00:46:42] Speaker 00: And we have it. [00:46:43] Speaker 00: When you look at our allegations in the complaint, what we added in the second amended complaint were more allegations regarding the protected nature of the speech. [00:46:49] Speaker 00: That was the issue before. [00:46:50] Speaker 03: But you did take out a section that had to do with First Amendment intimate association. [00:46:56] Speaker 00: We didn't. [00:46:57] Speaker 00: The same allegations are in there. [00:46:59] Speaker 03: I thought they're not in there anymore. [00:47:00] Speaker 00: That is the position that appellees have taken. [00:47:04] Speaker 00: It's possible that we remove one reference. [00:47:07] Speaker 00: I mean, they've made a big issue about the number of references to the First Amendment in our complaint. [00:47:11] Speaker 00: When you look at the allegations of our complaint, rather than the styling of the claim has not changed, and the allegation that we were fired because our husband engaged in protected speech has always been the allegation and the theory of this case. [00:47:24] Speaker 00: That has never changed. [00:47:26] Speaker 00: And what has been an issue is what the source of that right is and whether the source of that right is clearly established. [00:47:31] Speaker 00: And so when we get to whether the right is association, free speech, or some combination of the both, under Ninth Circuit law, not Eleventh Circuit law, the combination of two existing precedents is more than enough to clearly establish a right. [00:47:46] Speaker 04: And so we have... So you're saying two circuit precedents is a robust consensus? [00:47:52] Speaker 00: I am saying that, no, I am saying that for purposes of clearly establishing it, you can look at two different bodies of law and combine those bodies of law in order to find a right clearly established. [00:48:03] Speaker 00: If the law on those bodies is either binding testing or persuasive. [00:48:08] Speaker 04: Have we ever done that? [00:48:09] Speaker 04: Or are you just saying we think we could do that? [00:48:12] Speaker 00: I think the cases that we've discussed today do establish that, that there is a, we have the clearly established law that you can't retaliate for a protected speech. [00:48:20] Speaker 00: And we also have clearly established law that [00:48:22] Speaker 00: you can't retaliate for purposes of, if it would, can't retaliate on someone for purposes of interfering with their marital relationship. [00:48:29] Speaker 04: And so that we- Just to be clear, what I'm asking is, so I understand your point that you can take two, like two clearly established areas where there, and then you're saying, why can't you put those two together and to create a clearly established hybrid sort of situation. [00:48:42] Speaker 00: Correct. [00:48:42] Speaker 04: And I'm asking, [00:48:44] Speaker 04: Specifically, are you, is there any time when our court has done that and said, yes, there's a robust consensus, we put two separate clearly established areas out of circuit, not Supreme Court, but we put them together to create a robust consensus? [00:48:58] Speaker 00: So those are binding Supreme Court cases. [00:49:00] Speaker 00: The clearly established law just hasn't, there's no binding Supreme Court or Ninth Circuit case that has already combined them. [00:49:07] Speaker 00: But if you look at the, there is plenty of binding Supreme Court case law that says, can't retaliate for a protected speech, you can't, [00:49:13] Speaker 00: interfere with marriage relationships. [00:49:15] Speaker 00: The cases that exist that we posit are a robust consensus are the ones that have already done that merging of the law, which in the Ninth Circuit, there's no reason why you can't do that. [00:49:25] Speaker 02: Can I ask you about the association point before we conclude? [00:49:28] Speaker 02: This is following on Judge Berzon's question. [00:49:31] Speaker 02: Looking back at the district court decision, it does say that the court notes that the SAC does not contain allegations of a First Amendment violation based on the right of association. [00:49:40] Speaker 02: So is your position that that's just a mischaracterization of the complaint? [00:49:44] Speaker 00: That's right. [00:49:45] Speaker 00: And what the district court appeared to have done is determine that that law wasn't clearly established under the right of association, and then just said, well, the Ninth Circuit didn't reverse that. [00:49:55] Speaker 00: Therefore, my prior decision holds. [00:49:56] Speaker 03: Well, the problem is, and I don't know what we do with this, but just is that the original complaint in paragraph 65 said plaintiff under First Amendment retaliation said plaintiff as a First Amendment right of association with his spouse [00:50:13] Speaker 03: This right of association protects him from retaliation based on the protected conduct of his spouse. [00:50:18] Speaker 03: And then you go on to defendants acting under Colorado State Law. [00:50:22] Speaker 03: So that's 65 and 66. [00:50:24] Speaker 03: And then you go to the second amended complaint. [00:50:30] Speaker 03: And in the second amended complaint, [00:50:36] Speaker 03: The numbers are different now, but you have 68, and then where 65 would have been, there's nothing there, and then, well, no, I think the order's different. [00:50:47] Speaker 03: You have 69, then where the next paragraph would have been, it's not there, and then you have the same paragraph again. [00:50:54] Speaker 03: So I don't know what you do with that. [00:50:56] Speaker 03: I mean, you're saying, well, it's just part of the theory, and it's all part of the retaliation theory, so it didn't have to be in there separately. [00:51:03] Speaker 03: That's essentially what I understand you'd be saying. [00:51:05] Speaker 00: We're saying that we were responding to a argument that had gotten three years into this case that we were asserting a right under the 14th Amendment. [00:51:13] Speaker 03: I'm sorry, I didn't hear that. [00:51:14] Speaker 00: We had spent three years of a case arguing that we had not asserted a right in our complaint under the 14th Amendment. [00:51:21] Speaker 03: But it wasn't under the 14th Amendment as asserted in the first complaint. [00:51:25] Speaker 00: And yet it wasn't, and yet we had the fight for three years. [00:51:27] Speaker 00: So the claim was construed as somehow asserting a right that we had never claimed that was completely divorced from the free speech at issue, and it wasn't. [00:51:38] Speaker 03: You're saying that it didn't have to be there. [00:51:41] Speaker 03: It's part of the First Amendment retaliation claim, but it didn't have to be alleged separately, given the circumstances, which is that they did have a First Amendment right of intervention. [00:51:52] Speaker 00: Yes. [00:51:54] Speaker 00: We've alleged facts about the association throughout, the fact that they're married, all of that. [00:52:00] Speaker 00: Declaring that to be an exercise with the right of association is a legal conclusion that we don't need, particularly in light of all of the issues that have caused before about whether we were asserting a right under the 14th Amendment. [00:52:10] Speaker 00: And that is the right that we have repeatedly said we are not bringing. [00:52:12] Speaker 00: The right that we see is tied to the exercise of a constitutionally protected right, free speech, and that the only reason our client was terminated and experienced the harassment that predated the termination was because of his relationship with the person who engaged in speech. [00:52:27] Speaker 00: and that we think that the fact that they were husbands and that the only cause of the retaliation was the husband's speech is enough to bring the harm suffered by my client, Anthony DeFrancisco, within the scope of the First Amendment. [00:52:40] Speaker 02: I know we're running over time, but just to follow up on this thread. [00:52:48] Speaker 02: firing Di Francesco for Goldman's speech, the university had said, you know, Di Francesco, Goldman used to work here. [00:52:56] Speaker 02: He was a difficult person, and he's married to another person who works here. [00:53:02] Speaker 02: We're going to fire Di Francesco because Goldman was just a difficult person to work with. [00:53:07] Speaker 02: Are they permitted to do that under the Constitution, or is that a different type of claim? [00:53:11] Speaker 00: I think that's a different type of claim, and I'm not sure whether that claim is clearly established, whether or not as a matter of due process, [00:53:17] Speaker 00: you can or some other basis, whether it's proper to just fire somebody for the purpose of their intimate relationship. [00:53:26] Speaker 00: There are other cases that have discussed that in terms of [00:53:30] Speaker 00: But I don't think that's this case. [00:53:31] Speaker 02: OK, so you see a distinction between this case and that one. [00:53:33] Speaker 00: I do. [00:53:33] Speaker 00: And I think when we see ourselves in the big world, the Ninth Circuit case that says that whatever right we have is coextensive with any right that the actual speaker could have had. [00:53:44] Speaker 00: So he didn't suffer any retaliation. [00:53:47] Speaker 00: He didn't suffer any damages because he voluntarily quit the university. [00:53:51] Speaker 00: But the question is, if his speech isn't protected, we don't dispute that we don't have a claim. [00:53:55] Speaker 00: You know, we are tying our constitutional right to there being a finding that the speech at issue was, in fact, protected by the Constitution. [00:54:04] Speaker 00: And if it wasn't and they fired us for another reason or that that is an improper basis because that speech isn't protected, then we're out of luck. [00:54:13] Speaker 00: And so that's why we see the speech as an issue. [00:54:16] Speaker 00: And we haven't pled those allegations. [00:54:18] Speaker 00: We're not relying on allegations that the loss of marital income harmed our intimate association or things like that. [00:54:24] Speaker 00: What we're talking about here is government shouldn't be able to fire somebody because someone in a close relationship engaged in protected speech. [00:54:33] Speaker 03: But the reason a close relationship matters is because it's self protected by the Constitution. [00:54:40] Speaker 03: If it weren't, would that matter? [00:54:43] Speaker 00: I mean, yes, I do think that would at least be a consideration. [00:54:46] Speaker 03: I mean, suppose it was your best friend. [00:54:48] Speaker 00: Yes. [00:54:48] Speaker 00: I mean, I think that those are the types of questions that the Supreme Court has, or not the Supreme Court, but that other courts have asked. [00:54:53] Speaker 00: Like, is this relationship enough? [00:54:55] Speaker 00: And I was also not familiar with the Supreme Court case that you mentioned, but the Wasson case, the issue was that there wasn't a relationship. [00:55:01] Speaker 00: And we have some other cases that were discussed in opponent's brief. [00:55:04] Speaker 00: Or it's like a business relationship between parties is not necessarily enough. [00:55:09] Speaker 00: So a friend, I don't know whether that's enough. [00:55:11] Speaker 00: I haven't done that research. [00:55:12] Speaker 00: I can't tell you. [00:55:13] Speaker 00: But we do know, and the law is very clear under both Supreme Court and Ninth Circuit precedent, that marital relationships are protected. [00:55:20] Speaker 00: OK. [00:55:21] Speaker 00: Thank you, Your Honor. [00:55:21] Speaker 00: We ask that you reverse. [00:55:22] Speaker 02: Thank you very much. [00:55:23] Speaker 02: We thank both counsel. [00:55:24] Speaker 02: This matter is submitted. [00:55:25] Speaker 02: That concludes our calendar for this morning. [00:55:27] Speaker 02: We'll stand in recess until tomorrow morning.