[00:00:00] Speaker 04:
Good morning.

[00:00:01] Speaker 04:
My name is Kenneth Flexman for the Appellant.

[00:00:05] Speaker 04:
The University of Washington makes its email server available to faculty members for an internet mailing list known as the Faculty Issues and Concerns.

[00:00:18] Speaker 04:
And faculty members can discuss matters that relate to faculty matters.

[00:00:25] Speaker 04:
The state of Washington also has a statute that prohibits the use of state resources to support a political candidate or a public referendum or to use state resources for private benefit.

[00:00:43] Speaker 04:
That statute is enforced by one of the defendants in this case, the Executive Ethics Board.

[00:00:50] Speaker 04:
Plaintiffs contend that the Executive Ethics Board has used the state ethics law, has used policies and practices that it's followed, that it uses to enforce the state ethics law to chill First Amendment protected speech on the mailing list.

[00:01:09] Speaker 04:
The defendants view this case differently.

[00:01:11] Speaker 04:
They say this is about two professors who don't like what the executive ethics board has done.

[00:01:19] Speaker 04:
That's an incorrect framing.

[00:01:21] Speaker 04:
This is about the First Amendment and their policies and practices.

[00:01:24] Speaker 04:
It's not about the individual cases that have now been resolved.

[00:01:30] Speaker 04:
They're no longer pending before the ethics board.

[00:01:33] Speaker 04:
There were two.

[00:01:33] Speaker 05:
So let me ask you a preliminary question that I'm also going to ask your friend.

[00:01:38] Speaker 05:
Um, my understanding is at the time this case was filed, one of the cases against your client was pending one had been resolved.

[00:01:49] Speaker 05:
Is that factually correct?

[00:01:51] Speaker 04:
There are two clients.

[00:01:52] Speaker 05:
I'm sorry, bad question.

[00:01:54] Speaker 05:
I'm talking about Professor Flaxman for this question.

[00:01:57] Speaker 04:
That's correct.

[00:01:58] Speaker 04:
And the second one was resolved in the course of proceeding with Mr. Court.

[00:02:02] Speaker 05:
So the state indicates in their answering brief that they are not raising a younger issue

[00:02:11] Speaker 05:
with regard to your client.

[00:02:14] Speaker 05:
And maybe that's a younger waiver, but I'm going to bring that up with your client.

[00:02:19] Speaker 05:
My understanding of younger is... Your client, you mean Mr. Flaxman?

[00:02:22] Speaker 05:
Mr. Flaxman.

[00:02:23] Speaker 05:
So my understanding of Younger is that if a case is pending, if the case that implicates Younger is pending when a case is filed, the case must be dismissed under Younger even if it's resolved during the pendency.

[00:02:45] Speaker 05:
So with regard to Professor Flaxman,

[00:02:49] Speaker 05:
Why isn't Younger a problem unless the state has waived it and maybe they have?

[00:02:54] Speaker 05:
But if the state hasn't waived it, why isn't Younger a problem for Professor Flaxman?

[00:02:58] Speaker 04:
I think they waived it.

[00:02:59] Speaker 04:
I think there are lots of, there are arguments that are centered in the brief about why Younger never applied to this kind of proceeding.

[00:03:06] Speaker 04:
It wasn't a quasi criminal proceeding before the Executive Ethics Board.

[00:03:11] Speaker 04:
It wasn't the kind of proceeding that is entitled to the Younger versus Harris.

[00:03:16] Speaker 04:
And I think in the latest submission, the rule 28 submission, the state or the appellees agree that there's no reason not to decide the merits of Dr. Hagopian's claim.

[00:03:38] Speaker 05:
Well, I'm going to ask them that as well.

[00:03:40] Speaker 05:
So you take their filing, which says, let's dismiss the appeal at Moot and send it back in Professor Hagopian's case to let her file an amended complaint as a younger waiver.

[00:03:54] Speaker 04:
Yes.

[00:03:55] Speaker 05:
All right.

[00:03:55] Speaker 05:
Well, I'll ask him that.

[00:03:56] Speaker 05:
Please proceed with your argument.

[00:03:58] Speaker 04:
The reason why Your Honor should not follow that course is because the district judge, in the course of saying that she was not going to exercise jurisdiction, said that there's no First Amendment right in faculty email whatsoever.

[00:04:15] Speaker 04:
And she resolved that.

[00:04:18] Speaker 04:
She had the power to resolve that in the course of ruling on the 12b1.

[00:04:22] Speaker 04:
But she resolved it in a very cursory fashion and this court should reverse that because that's a significant question that should not be resolved on the basis, as the district judge did, of her reading of state law.

[00:04:37] Speaker 03:
The district judge kind of wrapped this into a broader holding about ripeness and said this case is not ripe.

[00:04:42] Speaker 03:
So why do you think it is?

[00:04:45] Speaker 04:
Well, the case is right because there's a chilling effect going on to the moderators of this mailing list who have to think about, will somebody make an anonymous complaint about this email if the Executive Ethics Board thinks that somehow it solicits funds or somehow it supports a referendum.

[00:05:07] Speaker 03:
But the district court seemed to think you hadn't

[00:05:09] Speaker 03:
sufficiently alleged the chilling effect.

[00:05:11] Speaker 03:
So how do you address that point?

[00:05:13] Speaker 04:
The district court adopted or applied an incorrect definition of chilling effect.

[00:05:24] Speaker 04:
If the action will deter someone from speaking, then it has a chilling effect.

[00:05:32] Speaker 04:
If there's a possibility of a fine of $750 for forwarding an email to the mailing list, that's about a matter of public concern, especially to this community, but includes, in the email that's being forwarded,

[00:05:51] Speaker 05:
Reference to, if you want to support our cause, click here.

[00:05:54] Speaker 05:
So let me focus this question on Professor Flaxman.

[00:05:59] Speaker 05:
Tell me where in the extant complaint, and if you could refer to paragraph numbers, Professor, there's an allegation that Professor Flaxman's First Amendment rights have been chilled.

[00:06:12] Speaker 05:
Just give me, tell me where in the complaint it says that.

[00:06:16] Speaker 05:
Because it's not that hard to allege here are the policies and because of the policies my rights are chilled and I have not taken actions that I would have but for the policies.

[00:06:32] Speaker 05:
But that's of course not the only way to allege your First Amendment rights have been chilled, but tell me where it says Professor Flaxman's First Amendment rights have been chilled.

[00:06:41] Speaker 05:
It doesn't say that.

[00:06:43] Speaker 04:
It says that the actions have chilled the exercise of First Amendment rights of the plaintiffs and of all the subscribers to the mailing list.

[00:06:53] Speaker 05:
So it doesn't say that Professor Flaxman has foregone any action because of these policies?

[00:07:05] Speaker 04:
It says, no, it doesn't say that.

[00:07:07] Speaker 05:
So the paragraph that you're citing too is which?

[00:07:10] Speaker 05:
I think that's in the class action description, but why don't you tell me what paragraph number?

[00:07:17] Speaker 04:
The rule in the Western District of Seattle is that if you are proposing a class action, you have to allege

[00:07:23] Speaker 04:
rule 23 requirements.

[00:07:25] Speaker 04:
We didn't allege those requirements to allege chilling effect, we just allege those to comply with the rule.

[00:07:31] Speaker 04:
Throughout the complaint, like paragraph 47, this overbroad email search chills academic discussions.

[00:07:38] Speaker 04:
That's at page 23 of the record.

[00:07:41] Speaker 05:
But it doesn't say that

[00:07:45] Speaker 05:
Professor Flaxman's First Amendment rights have been chilled or that he has acted or foregone action because of the policies anywhere, does it?

[00:07:59] Speaker 05:
not directly.

[00:08:00] Speaker 03:
I mean I guess the question this raises is does it need to, right?

[00:08:03] Speaker 03:
Do you need to raise that?

[00:08:05] Speaker 04:
Our position is that it doesn't need to and that if that pleading deficiency alleged or potential pleading deficiency had been identified by the defendants in their first motion dismissed, we would have

[00:08:18] Speaker 05:
in the amended complaint that we filed to try to meet their... So you are representing as an officer of the court that if we were to, for example, allow Professor Flaxman, and there are different issues with Professor Hagopian, but if we were to allow Professor Flaxman

[00:08:40] Speaker 05:
to amend the complaint as to his allegations, he would say that his First Amendment rights are chilled by these policies and actions and the potential fine, and he has either foregone actions or is taking different actions because of these policies and the possibility of going before an executive board being sanctioned, et cetera.

[00:09:09] Speaker 04:
That's correct.

[00:09:10] Speaker 04:
He would tell you that he walks on eggshells in deciding whether to send something to the list or to approve something to the list.

[00:09:18] Speaker 05:
But in response to my question, you're representing that if we gave him the ability to amend, he would put in in a new amended complaint those specific allegations as to him.

[00:09:29] Speaker 05:
Yes, Your Honor.

[00:09:30] Speaker 05:
Okay.

[00:09:34] Speaker 03:
I saw in the reference in the

[00:09:37] Speaker 03:
recent EEOB decision that was submitted that Professor Hagopian may have retired, is that true?

[00:09:42] Speaker 03:
That's correct.

[00:09:42] Speaker 03:
So is she still subject to the policy?

[00:09:45] Speaker 04:
That's a question that the Executive Ethics Board thinks that it can go back five years for anything.

[00:09:52] Speaker 03:
They thought she was subject.

[00:09:54] Speaker 03:
I mean, that was part of the finding.

[00:09:56] Speaker 04:
That was raised at her hearing that she's no longer working.

[00:09:59] Speaker 04:
You can't reach her, but they decided, and I think that's consistent with Washington law, that she's still subject to the policy.

[00:10:07] Speaker 05:
But she's not anymore a moderator?

[00:10:10] Speaker 05:
She's still a moderator.

[00:10:11] Speaker 05:
So she's still a moderator.

[00:10:12] Speaker 05:
So she still moderates content.

[00:10:14] Speaker 05:
That's correct.

[00:10:15] Speaker 05:
And does she still have a university email address?

[00:10:23] Speaker 05:
Yes.

[00:10:24] Speaker 05:
So she can, if I have that right.

[00:10:29] Speaker 05:
So she could still send emails.

[00:10:31] Speaker 05:
That's correct.

[00:10:32] Speaker 05:
But she's a meritist now.

[00:10:34] Speaker 05:
That's correct.

[00:10:38] Speaker 04:
Let me get back to the First Amendment issue where we now have a district judge saying that there's no First Amendment right whatsoever in faculty email.

[00:10:51] Speaker 04:
The state law recognizes two very broad exceptions for disclosure as public records for

[00:11:01] Speaker 04:
for email.

[00:11:03] Speaker 04:
There's an exemption for valuable formula.

[00:11:06] Speaker 04:
That's 42, 56, 270, Section 1.

[00:11:11] Speaker 04:
And there's another exemption for preliminary drafts, notes, recommendations.

[00:11:17] Speaker 04:
There's no express...

[00:11:20] Speaker 04:
grant of authority to the Executive Ethics Board to do this search of emails.

[00:11:26] Speaker 04:
And there's also no reason for them to search through emails other than if they're hunting for other potential violations of the law.

[00:11:34] Speaker 04:
Each of the three cases before the EEB involved emails that were sent to the faculty issues and concerns mailing list.

[00:11:43] Speaker 05:
You would agree, wouldn't you, that

[00:11:46] Speaker 05:
in general when we analyze the actions of, for example, a state or other government entity that is subject to the First Amendment, we look at different factors and analyze a different test if they are acting in a proprietary capacity as opposed to a government capacity, yes?

[00:12:12] Speaker ?:
Yes.

[00:12:13] Speaker 05:
And here, with regard to university emails, the government is acting in a proprietary capacity, is it not?

[00:12:25] Speaker 04:
to some extent, but cases that have confronted this issue and have confronted it in a lot more carefully considered manner than the district judge did here have decided that there should be some kind of a balancing test, that there shouldn't be the right to rummage through faculty email just to see what's there.

[00:12:46] Speaker 03:
Can I ask, do you allege that the board took basically, I think it was three months or maybe longer worth of email without any,

[00:12:55] Speaker 03:
Limitations on on the email poll if you will.

[00:12:59] Speaker 03:
That's right.

[00:13:00] Speaker 03:
No search terms or other things that were applied to it.

[00:13:02] Speaker 04:
It's just freeze freeze what's on the give us a dump of what's there and we'll look at it.

[00:13:09] Speaker 03:
And did they read is it do you allege that they reviewed all those emails or did they then apply.

[00:13:13] Speaker 03:
some kind of filter to it before they did that?

[00:13:15] Speaker 04:
I have no idea what they did.

[00:13:17] Speaker 04:
When they gave us the emails, in Professor Gopian's case, we looked at them and found that they were things in trash, things that were in spam.

[00:13:26] Speaker 03:
How many emails are we talking, like thousands?

[00:13:28] Speaker 03:
5,000, I think.

[00:13:29] Speaker 05:
Would your position, did the state, in your view, inform through policies

[00:13:40] Speaker 05:
that all emails sent on the state server are subject to search.

[00:13:45] Speaker 05:
So there was no notice of any kind.

[00:13:48] Speaker 04:
If there had been notice, perhaps somebody would have challenged it.

[00:13:51] Speaker 04:
But they adopted a rule which says that there's no privacy in email because it's easily reproducible.

[00:14:02] Speaker 04:
But now people know that's the rule.

[00:14:04] Speaker 04:
Well, if they read district court decisions, they know it's the rule.

[00:14:08] Speaker 04:
If they've come before the EEB, which went through their email, then they know it's the rule.

[00:14:13] Speaker 04:
But otherwise, it's not published that they will.

[00:14:16] Speaker 04:
If there's a complaint

[00:14:18] Speaker 04:
that doesn't require an examination of email, like in these cases where there's no dispute that the email was sent to the mailing list by Dr. Higalpian and Professor Flaxman, that it was sent there, they agreed it was sent there, they agreed this is a copy of it, why does the EEB have to look through the email?

[00:14:39] Speaker 03:
Just in terms of your First Amendment theory, which is really not before us because we're really dealing with the rightness issue in the first instance,

[00:14:47] Speaker 03:
Do you have an issue with restrictions on faculty contributions to the listserv that are soliciting donations or that are political in nature?

[00:14:58] Speaker 03:
I mean, do you object to all of that, or do you acknowledge that some types of those restrictions are going to be OK?

[00:15:03] Speaker 04:
If it restrictions that comply with the statute where there's soliciting directly soliciting donations,

[00:15:12] Speaker 04:
which not not where you have to click a box to pay for the donation or where they're directly supporting a political candidate don't get approved by the moderators.

[00:15:24] Speaker 03:
The way I understood your complaint was to be alleging that

[00:15:27] Speaker 03:
parts of this regime are overbroad.

[00:15:29] Speaker 03:
Not that it's completely invalid in every possible respect, but that parts of it are significantly overbroad.

[00:15:36] Speaker 03:
Do I have that?

[00:15:37] Speaker 03:
Is that fair?

[00:15:38] Speaker 04:
That's correct.

[00:15:39] Speaker 04:
It's a zero-tolerance policy about anything that might result in a contribution to a charitable cause is a violation of state law.

[00:15:48] Speaker 05:
Right.

[00:15:48] Speaker 05:
So, counsel, you've gone over your time, but we've taken up a lot of your time with questions, so we'll give you a couple of minutes for rebuttal.

[00:15:54] Speaker 05:
Thank you, your honor.

[00:16:04] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:16:06] Speaker 00:
I'm Assistant Attorney General Andrew Hughes.

[00:16:09] Speaker 00:
For appellants, Bob Ferguson and Kate Reynolds, with me at counsel table is my friend and colleague Nathan Bays.

[00:16:15] Speaker 00:
So appellant's complaint was properly subject to dismissal on four bases.

[00:16:20] Speaker 05:
So counsel, I don't like to interrupt somebody right at the beginning, but I want to apologize, but I want to clarify two things, first of all.

[00:16:28] Speaker 05:
So is it correct that as to Professor Flaxman, the state is raising no younger issue?

[00:16:39] Speaker 00:
So the original complaint, we did raise a younger issue.

[00:16:43] Speaker 00:
I'm talking about now.

[00:16:44] Speaker 00:
Totally understand that.

[00:16:46] Speaker 00:
Since then, obviously, facts on the ground have shifted.

[00:16:48] Speaker 00:
So the complaint was properly subject to dismissal under younger.

[00:16:51] Speaker 00:
But as we understand it, there is no ongoing proceeding with respect to Professor Flaxman.

[00:16:57] Speaker 00:
So I think the first, although the first bar, the first younger factor certainly applied to the complaint as filed to the operative complaint.

[00:17:05] Speaker 00:
facts on the ground have shifted.

[00:17:07] Speaker 00:
So I guess what we would say is it doesn't really make sense for your honors to rule on younger grounds when, as we now know, there is no ongoing.

[00:17:17] Speaker 05:
So that's good as to Professor Flaxman and as to Professor Hagopian.

[00:17:23] Speaker 05:
I think one could reasonably take your most recent filing where you say you should dismiss the appeal as moot and give her a chance to amend as saying,

[00:17:33] Speaker 05:
that the younger issue that you raised in your answering brief, you are no longer raising.

[00:17:41] Speaker 05:
Is that fair?

[00:17:42] Speaker 00:
So I would give roughly the same answer with respect to Professor Hopian, which is to say, currently, there is no ongoing proceeding.

[00:17:49] Speaker 00:
Under Washington's Administrative Procedure Act,

[00:17:52] Speaker 00:
Her recourse to challenge the EEB finding is to file an action in state court, in Thurston County Superior Court, at which point there will be an ongoing action if she does what she needs to do.

[00:18:06] Speaker 00:
If, I'll note, she doesn't do that, she instead simply opts to challenge the EEB finding via an amended complaint in this lawsuit, then we have a different justiciability problem.

[00:18:16] Speaker 00:
Then we have a Rooker-Feldman problem.

[00:18:17] Speaker 00:
But you don't have a Younger problem.

[00:18:20] Speaker 00:
Well, we would if she does what she needs to do and files.

[00:18:23] Speaker 00:
But if she doesn't.

[00:18:24] Speaker 00:
If she doesn't, then I don't believe Younger would find it.

[00:18:28] Speaker 05:
So as we sit here today, the state, based on the facts of which the state is aware, the state is not asking us to, under Younger, bar either Professor Flaxman's or Professor Hagopian's action.

[00:18:45] Speaker 00:
I don't believe younger is the most sensible option.

[00:18:47] Speaker 00:
I think with respect to Professor Flaxman, we'd ask your honors to affirm based on constitutional ripeness and or mootness.

[00:18:55] Speaker 05:
Well, I'm going to take your answer as a yes to my question that you are not asking us to enforce a younger bar.

[00:19:04] Speaker 00:
Yeah, again, I think the amended complaint was appropriately subject to a younger bar.

[00:19:08] Speaker 00:
But as we know, facts on the ground have shifted, which is all the more reason, Your Honor, why we think their amended complaint, the operative complaint, was unright.

[00:19:16] Speaker 00:
Because as we see, facts on the ground have totally shifted.

[00:19:19] Speaker 00:
All right.

[00:19:19] Speaker 00:
So I interrupted your argument.

[00:19:20] Speaker 05:
Please go ahead.

[00:19:21] Speaker 00:
No, you got me right where I wanted to go next, which is because facts on the ground have shifted since the initial complaint, we do think it makes sense to treat these two claims separately.

[00:19:35] Speaker 00:
And as I said for Professor Flaxman, we are asking that you affirm the district court's conclusion on ripeness and or mootness grounds, particularly now that he is not under any sort of investigation.

[00:19:46] Speaker 00:
And I want to talk about that in a little more detail later on.

[00:19:49] Speaker 00:
For Professor Hagopian, as we said in our 28-J letter to which Your Honor averted, given the fundamental shift in the posture, we do think remand makes sense.

[00:19:58] Speaker 00:
And I want to explain just a little bit more about why that is.

[00:20:01] Speaker 00:
So as Your Honors know, one of the core premises of the District Court's dismissal order

[00:20:07] Speaker 00:
is that neither Hagopian nor Flaxman had been sanctioned.

[00:20:10] Speaker 00:
So, for example, on prudential ripeness, district court noted correctly that, quote, in the absence of a final action against them, plaintiffs' claims are not fit for judicial resolution.

[00:20:21] Speaker 00:
That's an ER 10.

[00:20:23] Speaker 00:
Now, of course, Professor Hagopian has been sanctioned, primarily, I'll note, not because of any email she sent on this listserv, but because of her pervasive use of her state-issued email address.

[00:20:34] Speaker 00:
for personal business like shopping, Netflix account, and political engagement.

[00:20:40] Speaker 00:
So although, as I indicated earlier, the district court's ruling was entirely correct at the time it was made, based on the facts alleged in Hagopian's complaint, it no longer fits the facts on the ground.

[00:20:52] Speaker 00:
Now, having said that, we do still believe that there are real Article III barriers to Hagopian bringing an amended claim here.

[00:21:01] Speaker 00:
particularly because the EEB's findings, as I said, are based primarily on conduct that has nothing to do with the list.

[00:21:09] Speaker 03:
There seems to be some confusion in the district court in some of the briefing on the relevance of the EEB proceedings because their claims do not necessarily depend on those.

[00:21:20] Speaker 03:
Their allegation is that they're subject to a speech-restricting regime that they're having to live under.

[00:21:26] Speaker 03:
As it turns out, they've also been investigated and had that regime enforced against them.

[00:21:31] Speaker 03:
which is significant when it comes to ripeness, but their claims don't depend on that.

[00:21:35] Speaker 03:
So that may raise questions of abstention, but it doesn't, to me, raise much else beyond that.

[00:21:41] Speaker 00:
I would say sort of, Your Honor.

[00:21:42] Speaker 00:
There has been a real attempt to muddy the waters in that respect.

[00:21:45] Speaker 00:
But they say in their amended complaint, they say in their pleadings below, and they say in their opening brief that they're not challenging the Ethics in Public Service Act.

[00:21:56] Speaker 00:
All they're challenging is the way that it has been applied to them.

[00:22:00] Speaker 00:
But that's nothing more than a challenge to the investigations that they're undergoing right now.

[00:22:05] Speaker 05:
It's like saying- And they said something like, we're not asking you to invalidate any of the administrative proceedings.

[00:22:11] Speaker 00:
Right.

[00:22:11] Speaker 00:
But that simply doesn't make sense, Your Honor, because if you're saying the way you're applying it to us is it violates our First Amendment right, that's nothing more than saying we shouldn't be under investigation for the conduct.

[00:22:23] Speaker 03:
Right.

[00:22:23] Speaker 03:
And I think that when you have parallel proceedings, that raises questions about which proceedings should move forward and which should be held for the other.

[00:22:30] Speaker 03:
But when it comes to whether the claim is right, what we're concerned about is that the dispute should not be premature.

[00:22:36] Speaker 03:
It shouldn't be abstract.

[00:22:37] Speaker 03:
It needs to be concrete.

[00:22:39] Speaker 03:
I'm having trouble seeing why this isn't a pretty concrete dispute at this point given that you have two professors who are

[00:22:44] Speaker 03:
subject to a regime that they claim is speech-restricting, and when on top of that, they've already been investigated and even had this regime enforced against them.

[00:22:53] Speaker 03:
So how is that not right?

[00:22:54] Speaker 00:
So let's talk about Twitter then, Your Honor.

[00:22:55] Speaker 00:
Let's talk about constitutional rightness.

[00:22:58] Speaker 00:
So in Twitter, this court was absolutely clear that to plead a constitutionally right First Amendment claim, a party under investigation must allege, with facts, an actual injury that they're suffering on account of an investigation.

[00:23:12] Speaker 03:
But I mean, don't you think Twitter is kind of a different case?

[00:23:15] Speaker 03:
they were receiving a CID, right, a request for documents.

[00:23:19] Speaker 03:
Here, that's a step removed.

[00:23:21] Speaker 03:
You know, the allegation was that the receipt of documents would in turn chill the speech.

[00:23:26] Speaker 03:
There's an attenuation issue there.

[00:23:27] Speaker 03:
Here, there's a regime that

[00:23:29] Speaker 03:
prevents you from speaking, subject to penalties.

[00:23:32] Speaker 03:
So don't you think that's a little different?

[00:23:33] Speaker 00:
So no, Your Honor, for a couple of reasons.

[00:23:36] Speaker 00:
The first is that, as Twitter makes clear, I think, these sorts of claims that challenge an investigation, which is really what's going on here,

[00:23:46] Speaker 00:
The plaintiff must allege more than naked assertions of chill.

[00:23:52] Speaker 00:
And that's, as I heard Mr. Flaxman, I believe, say, that Professor Flaxman's speech wasn't chilled.

[00:23:58] Speaker 01:
There's no allegation that his speech was actually chilled.

[00:24:00] Speaker 01:
So, counsel, it's possible that

[00:24:03] Speaker 05:
Judge Bress and I may have a different view of ripeness, but when I asked your friend what he would allege if given the opportunity to amend, if this complaint alleged for Professor Flaxman,

[00:24:24] Speaker 05:
Here are these policies.

[00:24:26] Speaker 05:
Here is the possibility of investigation from these policies.

[00:24:32] Speaker 05:
And I believe these policies violate the First Amendment.

[00:24:37] Speaker 05:
An investigation violates the First Amendment.

[00:24:42] Speaker 05:
And because of these policies and the possibility of investigation, my actions have personally been chilled.

[00:24:49] Speaker 05:
I have foregone sending emails.

[00:24:51] Speaker 05:
I have foregone sending other things.

[00:24:54] Speaker 05:
wouldn't wouldn't that

[00:24:56] Speaker 05:
hypothetically, I mean, depending on the details, solve the ripeness problem, if that were the allegation?

[00:25:03] Speaker 00:
No, I don't believe so.

[00:25:04] Speaker 05:
Tell me why, why if Professor Flaxman were to allege, here are all these policies, here are the searches, here are the things that I've been subject to.

[00:25:14] Speaker 05:
I have a First Amendment right to do a variety of things here, and I have foregone doing them because of fear and chilling.

[00:25:23] Speaker 05:
Why wouldn't that

[00:25:24] Speaker 05:
be right if that were the allegation, which I don't think it is in this complaint, but if it were, why wouldn't that be right?

[00:25:31] Speaker 01:
So, as you said, that's not the allegation of this complaint.

[00:25:33] Speaker 00:
So that would not be right or would not be, let me step back a little bit.

[00:25:36] Speaker 00:
That would not raise an Article 3 case of controversy because

[00:25:42] Speaker 00:
Professor Flaxman is not under any sort of investigation.

[00:25:45] Speaker 00:
He was under investigation.

[00:25:47] Speaker 00:
He prevailed in those investigations.

[00:25:48] Speaker 03:
He doesn't have to be under investigation to bring a claim challenging a regime that restricts his speech.

[00:25:53] Speaker 03:
The fact that he is demonstrates the acuteness of the problem by his lights.

[00:25:58] Speaker 03:
But there's no requirement for somebody to bring a First Amendment claim that they're being actively prosecuted by the state.

[00:26:04] Speaker 00:
So that's exactly what's going next, Your Honor.

[00:26:05] Speaker 00:
Thank you.

[00:26:06] Speaker 00:
So appellants do try to save their complaint in their reply brief, really, by raising pre-enforcement standing and saying, oh, what we're really doing is challenging this sort of restrictive regime.

[00:26:17] Speaker 00:
But the problem is,

[00:26:19] Speaker 00:
aside from the fact that they didn't raise this until their reply, they never raised it below, is that they don't allege any intent to engage in future conduct that is prohibited by the Ethics in Public Service Act.

[00:26:31] Speaker 00:
They likewise don't allege that the Ethics in Public Service Act itself is unconstitutional, as they repeatedly say.

[00:26:37] Speaker 03:
I have trouble with this.

[00:26:37] Speaker 03:
I mean, don't they allege they're going to continue to be moderators?

[00:26:40] Speaker 03:
I mean, what more do you want them to say?

[00:26:42] Speaker 03:
They're subject to the regime.

[00:26:44] Speaker 00:
Right, but the Ethics in Public Service Act doesn't, the fact that they're moderators, pardon, doesn't mean that they're necessarily going to violate, or even that they're likely going to violate the Ethics in Public Service Act.

[00:26:56] Speaker 05:
But, Council, I agree with you that in my view they haven't alleged that.

[00:27:04] Speaker 05:
But it sounds to me like they are, at least in Professor Flaxman's case, because he still is employed, right?

[00:27:14] Speaker 00:
As far as I know.

[00:27:15] Speaker 05:
That he is willing to allege on remand that he wants to take these actions but is chilled from doing so.

[00:27:27] Speaker 05:
So putting aside it's late in the day,

[00:27:31] Speaker 05:
And it is late in the day, but we know Professor Hagopian's claims are going to live on based on what the state has told us in some form or another.

[00:27:44] Speaker 05:
I still have trouble seeing that if the allegations in this hypothetical new amended complaint were as your friend says they're going to be, I still don't understand why that doesn't solve the ripeness problem.

[00:28:01] Speaker 05:
solve any kind of merits problem, but I don't understand why it wouldn't solve the ripeness problem.

[00:28:07] Speaker 00:
If plaintiffs or if appellants want to raise an entirely new claim that the Ethics in Public Service Act shills their speech, that it violates their First Amendment rights, they're free to do so.

[00:28:17] Speaker 00:
And in fact, I'll note that that is a different case.

[00:28:21] Speaker 00:
They're welcome to do that.

[00:28:23] Speaker 03:
But why isn't that this case?

[00:28:26] Speaker 00:
Because they repeatedly say they're not challenging the Ethics in Public Service Act.

[00:28:30] Speaker 03:
It's sort of like saying, Your Honor... I think what he... I understood that to me.

[00:28:33] Speaker 03:
We're not challenging it as in we think it should be completely out the window, but we do think there's parts of it that are over-broad.

[00:28:40] Speaker 00:
So again, they can allege that.

[00:28:42] Speaker 00:
They don't allege it here.

[00:28:43] Speaker 00:
It's sort of like saying, Your Honor, we're not challenging a prohibition against jaywalking.

[00:28:48] Speaker 00:
We're only challenging a prohibition against jaywalking when it's applied to us.

[00:28:52] Speaker 03:
How else should we understand the complaint, which goes through certain aspects of the policy, like the email search feature, like the argument that even any kind of incidental request for a donation or any incidental political feature to the email,

[00:29:07] Speaker 03:
results in it being improper.

[00:29:10] Speaker 03:
I mean, they have alleged parts of this policy that they believe extend beyond

[00:29:15] Speaker 03:
what the First Amendment allows.

[00:29:16] Speaker 03:
We don't know what the answer to that is, but that's the allegation.

[00:29:19] Speaker 00:
But I would say those aren't matters of policy, Your Honor.

[00:29:21] Speaker 00:
Those are matters of the statute.

[00:29:23] Speaker 00:
The statute itself says that sending an email using state resources for the purpose of the financial gain of others is against the law.

[00:29:33] Speaker 00:
It violates the Ethics in Public Service Act.

[00:29:34] Speaker 02:
Council, excuse me.

[00:29:36] Speaker 02:
Sorry, excuse my voice.

[00:29:39] Speaker 02:
I guess to pick up on where Judge Bress is going with this, it seems like it would be perfectly reasonable for them to not be challenging the statute because as I read the complaint, what they're saying is that the agency is being too strict in its application of the statute.

[00:29:53] Speaker 02:
Not that the statute and the provision that you're just talking about about use of email is in and of itself wrong, but that how it's being applied and how strictly in their argument it's being applied is the problem.

[00:30:05] Speaker 02:
So if that's the case,

[00:30:07] Speaker 02:
And I guess I need you to accept for purposes of my question that premise.

[00:30:12] Speaker 02:
Then does your argument work?

[00:30:14] Speaker 00:
Well, again, I would say that's the same as the argument that the prohibition against jaywalking is fine, but the way it's applied to me is somehow unfair.

[00:30:22] Speaker 00:
It's the Ethics in Public Service Act, which they contend they're not challenging, which, again, they could file an entirely different claim.

[00:30:27] Speaker 02:
But isn't there a world in which that's true, that they're not challenging the act on its face?

[00:30:32] Speaker 02:
They're challenging how the agency is interpreting it and the procedures or regulations or whatever that it has put in place to enforce that act?

[00:30:42] Speaker 00:
Yes, I would say that's this case.

[00:30:44] Speaker 00:
They're saying that the way it's being applied to us in these investigations is unconstitutional.

[00:30:52] Speaker 00:
And for all the reasons we've said, there's rightness problems there, there's merits problem there, there was a younger problem there at the time there was an ongoing investigation.

[00:31:00] Speaker 00:
But there's simply no daylight between the position of the way it's being enforced against me is unconstitutional and the policies, the way that it's enforced generally

[00:31:11] Speaker 00:
is unconstitutional.

[00:31:12] Speaker 00:
They don't allege any sort of tertium quid, any sort of hypothetical investigation of someone else or future investigation of themselves that is problematic.

[00:31:25] Speaker 00:
And I guess the analogy I would give is, you know, they touched a hot stove

[00:31:29] Speaker 00:
and Professor Flaxman almost got burned but didn't, Professor Hagopian did get burned, but the fact that the stove is still on doesn't mean they have any expectation of any sort of future injury.

[00:31:44] Speaker 03:
When people are subject to speech-restricting regimes, we allow them to bring that claim on the basic understanding that the nature of that regime is going to chill what they do.

[00:31:54] Speaker 03:
That's just the necessary implication of a regime that restricts speech.

[00:31:59] Speaker 03:
I don't think we've ever required somebody who wants to publish a movie in the face of a censorship regime or anything else to do anything remotely akin to what you're suggesting Professor Flaxman needed to do here.

[00:32:09] Speaker 00:
I don't know that we actually have any sort of disagreement here, because as I've said, if they want to bring a new complaint that challenges the Ethics in Public Service Act, the prohibition against the use of state emails to solicit funds for striking workers or for anyone else, they are more than welcome to do so.

[00:32:28] Speaker 00:
We have real concerns about the merits of such a claim, about justiciability issues that we will raise if and when they do bring that complaint.

[00:32:38] Speaker 00:
That's just not this case.

[00:32:39] Speaker 01:
I see them over time.

[00:32:41] Speaker 05:
We're taking up a lot of your time with questions as well.

[00:32:45] Speaker 05:
Is the state's position that it has an unfettered right to search emails that use the state system like this?

[00:32:58] Speaker 00:
More or less, Your Honor.

[00:33:01] Speaker 00:
What I'll say about that is these emails are subject to the Public Records Act, and every state employee knows their emails are subject to the Public Records Act.

[00:33:08] Speaker 00:
So claiming some sort of protected privacy interest in emails that everybody knows, I'm a state employee, everybody knows are subject to the Public Records Act is sort of like a prison inmate.

[00:33:18] Speaker 00:
I'm sure the Public Records Act has exceptions.

[00:33:21] Speaker 05:
Oh, it certainly does.

[00:33:23] Speaker 05:
So but does is the state's position that the state cross state has the right for any reason to search every email?

[00:33:34] Speaker 00:
Well, I don't know that that's an issue that's really raised by this case, Your Honor, because appellants in this case don't allege that there are any emails that are actually covered by the Public Records Act, by any exception to the Public Records Act.

[00:33:47] Speaker 00:
They don't allege, for example, that there were any formula in their emails, secret formula in their emails that were revealed to the EEB.

[00:33:57] Speaker 00:
Were they to allege something like that, they might come closer.

[00:33:59] Speaker 03:
Right, but the allegation is that based on forwarding of

[00:34:03] Speaker 03:
a union type email to a listserv.

[00:34:05] Speaker 03:
The state then searched months worth of email.

[00:34:08] Speaker 00:
Absolutely.

[00:34:09] Speaker 00:
And your honor is welcome to conduct that very same email search.

[00:34:12] Speaker 00:
You just send a public records request to the University of Washington asking for each and every one email sent to or from Professor Amy Hagopian during a three-month period.

[00:34:21] Speaker 00:
And you will get those emails subject only to limited narrow PRA exemptions.

[00:34:26] Speaker 00:
And the fact that you have the right to search those emails means that surely there's no First Amendment protected privacy interest in those emails.

[00:34:33] Speaker 05:
So, counsel, again, we've taken up a lot of your time.

[00:34:36] Speaker 05:
Do you have any closing statement you'd like to make?

[00:34:38] Speaker 00:
I was just going to say that we'd ask your honors, for all the reasons outlined here in our briefing, we'd ask this court to affirm dismissal as to Professor Flaxman and to remand as to Professor Hergobian to give her an opportunity to amend her complaint.

[00:34:52] Speaker 05:
Thank you.

[00:34:52] Speaker 05:
Counsel, we'll give you three minutes for rebuttal.

[00:35:00] Speaker 04:
I'd like to make two points, which is that I think if we look at the Washington statute about public records, we'll see that you can't make a request for all emails sent by

[00:35:17] Speaker 04:
Professor Hagopian from point time one to time two.

[00:35:22] Speaker 04:
You have to ask for subject matter.

[00:35:24] Speaker 04:
You have to ask for relating to something.

[00:35:26] Speaker 04:
You can't just say, I want all of her emails for March of 2022.

[00:35:29] Speaker 04:
I think the statute explicitly prohibits that kind of request.

[00:35:35] Speaker 04:
The other thing that I was about to get when I ran out of time is that the district judge's decision

[00:35:44] Speaker 04:
that there's no First Amendment right whatsoever in faculty email, even though it came on a 12B1 motion, is probably viewed as a judgment on the merits.

[00:36:01] Speaker 04:
And it's a Brownback versus King 592 US 209 at 218, the way I read it.

[00:36:08] Speaker 04:
Maybe I'm reading it incorrectly.

[00:36:10] Speaker 04:
But I think it's important that this court not let that judgment on the merits, if it is a judgment on merits, stand and that the court say that there should be more careful consideration of First Amendment issues about faculty email.

[00:36:27] Speaker 04:
Are there further questions?

[00:36:30] Speaker 05:
No.

[00:36:30] Speaker 05:
Thank you very much.

[00:36:31] Speaker 05:
All right.

[00:36:31] Speaker 05:
We thank counsel for their arguments.

[00:36:34] Speaker 05:
The case just argued is submitted.

[00:36:37] Speaker 05:
And with that, we will move to