[00:00:11] Speaker 00: Good morning, your honors and may it please the court to Timothy snowball on behalf of the Appellant Freedom Foundation. [00:00:16] Speaker 00: I'd like to reserve two minutes for a bottle if I may. [00:00:20] Speaker 00: Your honors, there are three reasons that the district court should be reversed in this case. [00:00:23] Speaker 00: First, the district court aired by failing to recognize the conflict of fact concerning the speech allowed by the department and new employee orientations. [00:00:32] Speaker 00: Second, [00:00:33] Speaker 00: The district court erred in its application of the legal standards governing viewpoint discrimination claims. [00:00:38] Speaker 00: And finally, the district court also erred in its application of the legal standards governing equal protection claims in this context. [00:00:46] Speaker 00: Now to my first point. [00:00:49] Speaker 00: The district court erred by failing to recognize the conflict of fact concerning the speech allowed by the department and new employee orientations. [00:00:56] Speaker 06: Counsel, the distinction that's being made here has to do with function rather than the nature of the speech, which appears to be permissible under the case law. [00:01:17] Speaker 06: And I know that at least some of the briefing has tried to cabin that decision, but it is a controlling law for us. [00:01:29] Speaker 06: So if the Perry decision says that an employer or other entity can distinguish by function, why isn't what has happened here permissible? [00:01:46] Speaker 00: I don't think, Your Honor, frankly, we take any issue with the Perry case. [00:01:50] Speaker 00: I think the Perry case is absolutely on point insofar as that's the reason why the union, the exclusive representative, is allowed in the door. [00:01:57] Speaker 00: And that's what the statute in this case states. [00:01:59] Speaker 06: And your client has no similar function. [00:02:02] Speaker 06: It has no relationship with the employees. [00:02:05] Speaker 06: It has no relationship with the employer. [00:02:12] Speaker 06: Why isn't that the end of the discussion? [00:02:15] Speaker 00: I think the important distinction here is the recognition that there are essentially two forums at issue here at the new employee orientations. [00:02:23] Speaker 00: There's a forum in which the union is coming in explaining the collective bargaining agreement. [00:02:28] Speaker 06: doing what it's supposed to do based on the statute, and there's an entirely... But, counsel, where do you find a forum defined by what someone is saying? [00:02:35] Speaker 06: The forum has to do with the nature of the event. [00:02:39] Speaker 06: The event is employee orientation. [00:02:42] Speaker 06: A forum may be a rally outdoors on a public square. [00:02:46] Speaker 06: It doesn't, and people may say completely conflicting things, but it doesn't change to more than one forum because of that. [00:02:54] Speaker 06: So why isn't there a single forum here? [00:02:57] Speaker 00: Well, I would respectfully disagree, Your Honor, insofar as we're not talking about what we would consider to be a traditional public forum. [00:03:03] Speaker 06: Well, it isn't a public forum. [00:03:04] Speaker 06: That's the problem for your client. [00:03:07] Speaker 06: So why isn't there a single forum here, which is a non-public forum, employee orientation? [00:03:14] Speaker 06: That's the forum. [00:03:16] Speaker 06: End of discussion. [00:03:16] Speaker 00: Because when the government opens a non-public forum to private speakers to opine on public matters, it has to [00:03:24] Speaker 00: police the standard that it has itself set. [00:03:27] Speaker 00: And these are some of the statements that are regularly made. [00:03:28] Speaker 02: You have a case that says that. [00:03:31] Speaker 00: Pardon me? [00:03:31] Speaker 02: You have a case that actually holds that. [00:03:34] Speaker 00: I would think the Rosenberger case, Your Honor, is the case that states that principle that when the government opens a private forum, the government doesn't have to let anybody in. [00:03:42] Speaker 00: The government has allowed in the unions, per the statute, to communicate with employees. [00:03:46] Speaker 06: You say it's made the decision. [00:03:48] Speaker 06: The statute has made the decision. [00:03:50] Speaker 06: It's not open. [00:03:53] Speaker 06: It's not open. [00:03:54] Speaker 06: It's a closed forum, and there are certain people who are permitted to be in the closed forum by invitation or by statutory requirement. [00:04:05] Speaker 06: I don't understand how that's opening it up. [00:04:08] Speaker 00: Well, if I may talk about some of the topics that are discussed regularly at new employee orientations. [00:04:12] Speaker 06: But the topics don't matter to the definition of the forum. [00:04:16] Speaker 06: That's what I'm getting at. [00:04:17] Speaker 06: I don't understand how what is said changes the nature of the forum. [00:04:22] Speaker 06: For example, suppose a manager gets up and says exactly what you're concerned about the union representative saying here. [00:04:31] Speaker 06: That person is in charge of the employees and is in charge of orienting them. [00:04:38] Speaker 06: So how can the nature of what that person says, even if it's offensive or wrong, change the nature of the forum itself? [00:04:46] Speaker 00: I don't think there's any dispute, Your Honor, about the nature of the forum in this case. [00:04:49] Speaker 00: I think, per the Rosenberger case, what we're talking about is the government enabling private speech, enabling speech. [00:04:56] Speaker 00: And the type of speech in this case is the union coming in and saying that Freedom Foundation wants to defund the union, wants to defund the CBA, take away employee benefits, take away jobs, wants to get rid of unions entirely. [00:05:10] Speaker 04: I understand your concern there. [00:05:12] Speaker 04: I guess my question in part is, [00:05:16] Speaker 04: Isn't the appropriate remedy, given the legitimate purposes of the union representative to explain how the collective bargaining agreement works and so forth, simply for the government to say to the state to say to this speaker, now look, you're not allowed to say that, we interrupt you, stop that, get back to the collective bargaining. [00:05:42] Speaker 04: Why does it open the door to having someone else come in and have a sort of extraneous debate that has nothing to do with training? [00:05:52] Speaker 00: I would agree, Your Honor. [00:05:53] Speaker 00: I think that would be an acceptable remedy in this case for the government to be reined into the scope of what the Union is supposed to be talking about here. [00:06:00] Speaker 00: The question is, has the government opened to benefit? [00:06:04] Speaker 00: Has the government created a metaphysical forum to use the language that Rosenberger employs? [00:06:08] Speaker 00: And the answer would be yes here. [00:06:10] Speaker 00: Once opening that forum, once allowing the unions to talk about, you know, basically use these orientations to target a political enemy, I mean, there's no real question about why the Freedom Foundation is being brought up at these new employment orientations, and the Freedom Foundation is seen as a political enemy to the unions, and that's why they're talking about these things. [00:06:28] Speaker 00: So having opened up the topic, the topic of the Freedom Foundation, the topic of the work we do, there are certain constitutional requirements that then kick in in order to keep other speakers out of the forum. [00:06:40] Speaker 00: The two requirements are the restrictions, so the restriction in this case on the Freedom Foundation, cannot discriminate according to the viewpoint of the speaker. [00:06:48] Speaker 00: The point of this is subject compatibility. [00:06:51] Speaker 00: The second point is that the restriction has to serve a legitimate or a reasonable government interest. [00:06:57] Speaker 00: This is purpose compatibility. [00:06:59] Speaker 00: And the entire way to think about these two requirements are to determine what is the purpose of the forum and whether keeping someone out after having opened it would maintain the purpose for which the forum has been set aside. [00:07:11] Speaker 00: And again, in this case, the specific forum, the specific subject matter that the Freedom Foundation takes constitutional issue with is that portion of the forum that the department has allowed the union to speak on and to target the Freedom Foundation as a political enemy. [00:07:26] Speaker 00: Again, the union can come in and seemingly say whatever it wants. [00:07:30] Speaker 00: It's supposed to be cabin within the statute and the CBA talking about its role as collective bargaining agent and its responsibilities, and we take no issue with that. [00:07:39] Speaker 00: but the department allowing the union to go beyond those boundaries, beyond the statute, beyond the CBA. [00:07:46] Speaker 00: I mean, it's akin to, I don't think we take any issue with somebody coming in the union and saying, vote for Joe Biden or vote for Kamala Harris or vote for Donald Trump. [00:07:54] Speaker 00: We would say, well, maybe in the tenuous sense that has something to do with collective bargaining, perhaps something to do with the CBA. [00:08:02] Speaker 00: It's the same idea here, attacking a political enemy using this time to attack the Freedom Foundation [00:08:08] Speaker 00: has absolutely nothing to do with their responsibility as exclusive representative, absolutely nothing to do with their responsibility pursuant to the contract. [00:08:17] Speaker 00: And so, again, viewpoint discrimination occurs where the speaker wishes to speak on a subject compatible with the forum, the forum in this case being that portion of the orientation set aside to discuss the Freedom Foundation. [00:08:30] Speaker 04: Therefore... But I guess what I'm saying is, isn't your appropriate remedy [00:08:39] Speaker 04: to ask for an injunction that the state not permit this in the future. [00:08:46] Speaker 04: And did you ask for that? [00:08:48] Speaker 00: We did not ask for that specifically, Your Honor, but I do think that's encompassed within the pleading asking for whatever remedy the court thinks just and proper. [00:08:55] Speaker 00: I think it would fall within that category. [00:08:57] Speaker 00: Here, again, I would point the court to the Rosenberger case as an example here. [00:09:02] Speaker 03: Who is to judge? [00:09:03] Speaker 03: I mean, you just seem to suggest that if the union representative said vote for so-and-so that could be arguably germane to the issue of collective bargaining. [00:09:16] Speaker 03: I mean, then you're asking the employer to essentially come in and police [00:09:21] Speaker 03: a line which is subject to debate about what is and is not germane to the topic of collective bargaining. [00:09:27] Speaker 03: Generally speaking, under our First Amendment doctrine, we would reject the idea that the government is supposed to come in and police another speaker's speech. [00:09:37] Speaker 00: I think as Your Honor pointed out, the line here, the scope here was drawn by the legislature. [00:09:42] Speaker 00: The legislature defined the interest that the government has in allowing the union to come in, and that's to talk about this is a new employee orientation. [00:09:50] Speaker 00: We've all gone to new employee orientations. [00:09:52] Speaker 00: Here's our responsibilities. [00:09:53] Speaker 00: Here's what we're going to be doing for you. [00:09:56] Speaker 00: And to use that time to attack a political enemy has absolutely nothing to do with it. [00:10:01] Speaker 00: And the idea here, again, is speech enabling activity by the government. [00:10:06] Speaker 00: In the Rosenberger case, the university said we're going to have a fund to fund student publications. [00:10:12] Speaker 03: Why is this a First Amendment claim? [00:10:13] Speaker 03: Why isn't that just a claim under state law that they're exceeding the authorization of the statute? [00:10:20] Speaker 00: I can't speak to alternative case designs, Your Honor. [00:10:24] Speaker 00: Certainly we're here on a federal issue, the Federal First Amendment, and we believe that the case law here supports our position. [00:10:30] Speaker 00: I wanted to go back to Judge Graper's comment on the Perry case, because I think in large measure the district court almost exclusively was relying upon the Perry case. [00:10:39] Speaker 06: Sure, because it distinguishes between status [00:10:42] Speaker 06: and viewpoint. [00:10:44] Speaker 06: So if a person has a right to present because of their status, it doesn't matter what they say, they still have that right. [00:10:52] Speaker 06: It doesn't become viewpoint discrimination if they say something that somebody doesn't like. [00:10:59] Speaker 00: Again, Your Honor, I would respectfully disagree. [00:11:01] Speaker 00: I don't think it's a matter of saying something the foundation doesn't like. [00:11:05] Speaker 00: I think it's saying something that goes beyond their status. [00:11:08] Speaker 00: The status justifies them talking about the benefits [00:11:12] Speaker 00: and their role as an exclusive representative. [00:11:14] Speaker 00: It does not give them. [00:11:15] Speaker 06: Status gave them access to the forum, period. [00:11:19] Speaker 06: Nobody else has status that gives them access to the forum. [00:11:23] Speaker 00: And we take absolutely no issue with them having status to the forum and coming in. [00:11:27] Speaker 06: So what is your client's status that would entitle them? [00:11:30] Speaker 06: Status now, I'm not asking about viewpoint. [00:11:33] Speaker 06: I'm asking about status. [00:11:34] Speaker 06: What is their relationship to this forum? [00:11:38] Speaker 00: The government, by allowing the union to attack the Freedom Foundation as a political opponent, has opened the forum to political debate and political issues beyond their status. [00:11:49] Speaker 06: That is not an answer to my question. [00:11:50] Speaker 06: You don't have to answer it. [00:11:51] Speaker 06: But what is their status with respect to the new employees? [00:11:55] Speaker 06: What is your client's status? [00:11:56] Speaker 06: None. [00:11:58] Speaker 00: I would agree, and frankly, I don't think it turns on that, respectfully, Iran. [00:12:02] Speaker 00: I don't think it turns on status, again. [00:12:03] Speaker 03: You have a single case in which [00:12:06] Speaker 03: The government has allowed someone into a non-public forum based on their status where the court has said the government then has an affirmative duty to police what that entity says. [00:12:21] Speaker 00: I don't have a case on those exact facts, Your Honor, but again, I think that our two strongest cases here for our position are the Rosenberger case and Lamb's Chapel. [00:12:29] Speaker 00: In both of those cases, you had the government providing a benefit to speakers and denying a benefit, denying a platform, denying a forum to speakers based upon their viewpoint. [00:12:39] Speaker 00: And there is nothing in what the foundation would say if allowed into these orientations that would contradict the subject matter or the purpose that's been set aside by the government. [00:12:48] Speaker 00: Again, the union can say whatever it wants. [00:12:50] Speaker 00: The triggering factor here is the government allowing the union to exceed the boundaries prescribed by the legislature. [00:12:56] Speaker 05: And if there are no further questions, I reserve my time May it please the court Marsha Chen for the Department of Labor and Industries [00:13:22] Speaker 05: The First Amendment does not require the Freedom Foundation be able to present at a new employee orientation for a government employer that it does not have any relationship with. [00:13:31] Speaker 04: So supposing the union person speaking at this [00:13:38] Speaker 04: non-public forum because it's a non-public forum because it's supposed to be training new employees and in the connection with the union and training them about how to utilize their collective bargaining rights and so forth. [00:13:54] Speaker 04: So supposing the union representative gets up and says, you know, I've been given 20 minutes and I think it's really more important for me to describe for 19 of those minutes why you should all be opposed to immigrants holding any jobs in this company. [00:14:20] Speaker 04: They're all [00:14:23] Speaker 04: dangerous to the community. [00:14:26] Speaker 04: And I really want to spend my entire time discussing that. [00:14:33] Speaker 04: And you're saying that that's all okay? [00:14:37] Speaker 05: No, Your Honor. [00:14:38] Speaker 05: The CBA provides the guardrails for the union's speech. [00:14:41] Speaker 05: The CBA and state law restrict the union's presentation to talking about the union and talking about the collective bargaining. [00:14:48] Speaker 04: So how do you enforce that is my question. [00:14:50] Speaker 05: So the department, to the extent there is any exceeding of those guardrails, the department can raise those complaints with the union, can renegotiate the CBA contracts, and the department can cut off access. [00:15:01] Speaker 05: But the record here, and there is no conflict in facts, the record here shows the union was not discussing, not exceeding the bounds of the CBA or state law. [00:15:09] Speaker 05: The union was discussing talking about wages, talking about pensions, talking about health care. [00:15:16] Speaker 05: Those are squarely within the confines of the CBA and state law. [00:15:20] Speaker 05: Certainly, the Freedom Foundation might not like what it says, but not every slight is a constitutional issue. [00:15:26] Speaker 05: And certainly the union, to the extent that the union talks about political issues that are untethered to the union's work, that would be outside the bounds of the CBA. [00:15:35] Speaker 04: What conceivable connection did the comments about the Freedom Foundation have to training employees? [00:15:44] Speaker 05: The Freedom Foundation, the union rep discussed the Freedom Foundation only to the extent necessary because the Freedom Foundation has opposed union priorities, opposed pensions, opposed health care benefits. [00:15:55] Speaker 04: But that's not the basis on which the legislature has set up this non-public forum. [00:16:01] Speaker 04: It's to train employees not to discuss what the union may think of its opponents. [00:16:09] Speaker 05: Well, I would like to clarify. [00:16:12] Speaker 05: The union is not limited to speaking about the new employee orientations or policies and procedures. [00:16:17] Speaker 05: Both state law and the CBA allow access to new employees so that the union can provide information about what it does so the new employee can decide whether or not to join the union or otherwise. [00:16:27] Speaker 05: And it's not limited. [00:16:29] Speaker 05: It might occur during the new employee orientation at this time in 2021, but it actually doesn't occur at the same time anymore today. [00:16:36] Speaker 05: It occurs at a separate date and time. [00:16:37] Speaker 05: So the topics are not limited to the policies and procedures or new employee orientations that the department is responsible for. [00:16:46] Speaker 05: The department has its own new employee orientation. [00:16:48] Speaker 05: And so the presentation for the union is really for access to the new employees. [00:16:52] Speaker 05: So the union can talk about the union, and the new employees can decide whether or not they want to join. [00:16:57] Speaker 05: And I would like to also emphasize the fact that no employee is required to attend the union presentation. [00:17:03] Speaker 05: They are free to drop off the Zoom call at any time if they disagree with the opinions expressed by the union. [00:17:11] Speaker 05: Additionally, the Freedom Foundation has alternative channels to communicate with the new employees. [00:17:16] Speaker 05: They can and have requested access to employee contact information. [00:17:22] Speaker 05: They have leafleted in the public areas of the departments [00:17:25] Speaker 05: parking lot, and other areas. [00:17:27] Speaker 05: And that is all still squarely allowed. [00:17:29] Speaker 05: And the Freedom Foundation has done that and can do that. [00:17:33] Speaker 05: So what we're fighting for over here is whether or not there's a status-based distinction. [00:17:38] Speaker 05: And I would agree with Judge Graper that the end of the discussion is Boardman and Perry. [00:17:44] Speaker 05: Boardman and Perry make it clear that a status-based distinction is both reasonable and viewpoint neutral. [00:17:49] Speaker 05: Council, and during oral argument, keeps referring to Rosenberger. [00:17:53] Speaker 05: In Rosenberger, that did not involve a status-based distinction. [00:17:57] Speaker 05: In Rosenberger, the University of Virginia [00:18:00] Speaker 05: did not provide funds to a student publication that espoused religious views. [00:18:05] Speaker 05: But the US Supreme Court specifically observed the fact that if that student publication wasn't a student publication at all, but was instead a religious organization, there might have been a basis for excluding those funds to a religious organization, such as a church or other organization. [00:18:21] Speaker 05: So Rosenberger doesn't do nearly as much work as the Freedom Foundation suggests. [00:18:26] Speaker 05: Again, I would turn to the extent the Freedom Foundation suggests that there was limited discourse, that there was an extension discussing political views outside of what was allowed by the CBA. [00:18:41] Speaker 05: I would point the court to Cornelius versus NAACP. [00:18:45] Speaker 05: In Cornelius versus NAACP, the federal employees invited [00:18:50] Speaker 05: voluntary organizations into a non-public forum for them to solicit donations from other federal employees. [00:18:57] Speaker 05: And specifically in Cornelius v. NWCP, the Supreme Court held that limited discourse about societal issues does not convert that forum into a different type of forum. [00:19:08] Speaker 05: It still remains a non-public forum. [00:19:10] Speaker 05: So there was no viewpoint discrimination here. [00:19:13] Speaker 05: The Freedom Foundation seems to suggest there was viewpoint discrimination simply based on what the union said. [00:19:19] Speaker 05: But the department would have allowed the union access to the presentation regardless of what the union said and would have denied access to the Freedom Foundation even if the Freedom Foundation agreed with the union presentation in its entirety. [00:19:35] Speaker 05: So there was no viewpoint discrimination here. [00:19:41] Speaker 05: I would also point to the Supreme Court's decision in Perry where it said that the union speech is its own. [00:19:48] Speaker 05: The department is not required under the Public Collective Bargaining Act to police the speech made during the presentation. [00:19:57] Speaker 05: The union speech is its own, and Perry confirms this. [00:20:02] Speaker 05: We would ask that the court affirm the decision of the district court that the status-based distinction is both reasonable and viewpoint-neutral. [00:20:22] Speaker 01: May it please the court, I'm Scott Cronland for the Washington State Labor Council. [00:20:28] Speaker 01: Like the other states with collective bargaining systems, Washington provides the exclusive representative with access to orientations for its bargaining unit. [00:20:39] Speaker 01: The plaintiff takes too narrow a view of the legitimate purpose in providing access to new employees. [00:20:48] Speaker 01: The new employees are coming into a bargaining unit that already has an exclusive representative and a collective bargaining agreement, and the government can legitimately conclude that the collective bargaining system will benefit [00:21:03] Speaker 01: if the new employees get to hear directly from the representative about what it's doing and about the collective bargaining agreement. [00:21:11] Speaker 04: So I put to you the same hypo I put to your colleague. [00:21:16] Speaker 04: So supposing the union representative stands up and says, you know, the biggest threat to you, our new workers today, [00:21:29] Speaker 04: is illegal immigrants who are taking your job away. [00:21:36] Speaker 04: So I'm going to spend my entire time talking about what we can do about that. [00:21:42] Speaker 04: And I'm going to start out by saying these are evil people who should not be allowed into our country. [00:21:49] Speaker 04: They're rapists, they're murderers, and all this sort of stuff. [00:21:53] Speaker 04: And he goes on, and you're saying that's all [00:21:59] Speaker 04: Okay. [00:22:01] Speaker 01: It's about the union's activities. [00:22:03] Speaker 01: It's okay. [00:22:05] Speaker 01: The statute and the collective bargaining agreement say that the union can provide information about the union. [00:22:12] Speaker 01: It can't give a diatribe about immigration and the abstract. [00:22:16] Speaker 01: Well, all right. [00:22:16] Speaker 04: So supposing, forgive me, supposing it gives a, in fact, it gives a diatribe, which you say is not permitted. [00:22:26] Speaker 04: What's the remedy? [00:22:27] Speaker 04: The state can say to the union that's not our agreement our agreement is you can talk about the union and so what about the point raised by Judge Graber that that if the state did that they would fear that they were using state action to Limit speech and so they would have so they'd be very hesitant to use that remedy [00:22:51] Speaker 01: Well, you know, in this case, as the district court found, the union speech was about the union, clearly within the scope of the union's mandate, so we don't have the harder hypo. [00:23:04] Speaker 04: What is the statement that the Freedom Foundation is backed by a bunch of billionaires have to do with the union's activities? [00:23:15] Speaker 01: That was a wise crack. [00:23:16] Speaker 01: It's clear from the presentation that the presenter was saying that one of the things the union does is push back against organizations that are trying to defund your contract, that are trying to take away your benefits. [00:23:31] Speaker 01: That is one of the things the union does and the new employees [00:23:34] Speaker 01: may have an interest in knowing that, just like they may have an interest in knowing about the members-only benefits that the union provides, the disaster relief fund, how much dues are they have to decide. [00:23:47] Speaker 01: Do they want to join the union? [00:23:49] Speaker 01: Do they want to become involved in the union? [00:23:51] Speaker 01: This is just an orientation. [00:23:53] Speaker 01: They have an interest in knowing what is their representative doing, whether they like it or not. [00:23:59] Speaker 01: and it's up to the union to decide how to use its time. [00:24:04] Speaker 01: If they're coming in every week and selling Tupperware, it doesn't have to do with the union, then that's a harder case, I would agree, that exceeds the union's mandate. [00:24:14] Speaker 01: And there might be an issue as to what happens if the government doesn't. [00:24:18] Speaker 04: And so let's take that. [00:24:20] Speaker 04: That's a good example, because I'm old enough to remember Tupperware. [00:24:24] Speaker 04: So in that case, two questions. [00:24:34] Speaker 04: Does the state have the obligation to say, stop it? [00:24:41] Speaker 04: This is not what you're invited to do. [00:24:44] Speaker 01: But if the state doesn't enforce its own rules, then there might be a question, is it not doing that because it likes the viewpoint of what's being said. [00:24:55] Speaker 01: But we don't have that case. [00:24:58] Speaker 04: Well, but my second question would be, assuming the state did nothing, [00:25:03] Speaker 04: But it was clear that what the union representative who was only talking about by Tupperware was doing had nothing to do with the legislative purpose of inviting the union. [00:25:14] Speaker 04: Does the court then have the power to say you must not allow this to happen in the future? [00:25:22] Speaker 01: The court doesn't have the power to, at least the federal court, it's not a First Amendment issue. [00:25:29] Speaker 01: It might be a state law issue. [00:25:31] Speaker 01: Someone could go get a writ of mandate and require the government to follow the statute or perhaps the CBA. [00:25:38] Speaker 01: The First Amendment argument would be, if you're letting the speaker talk about stuff that has nothing to do with what the statute and the CBA says or the grounds for access, [00:25:49] Speaker 01: then perhaps you could argue it's not reasonable to exclude others who want to sell Tupperware. [00:25:55] Speaker 01: But that's not this case. [00:25:57] Speaker 01: That's a harder case and a more interesting case. [00:26:00] Speaker 01: This is the case of a union that was allowed to come in for the purpose of talking about the union. [00:26:07] Speaker 01: And that's what the union was talking about. [00:26:10] Speaker 01: It's like Perry, where the representative was allowed to use the mail [00:26:16] Speaker 01: quote, as representative of the teachers and there was nothing in the record to suggest that the representative was [00:26:23] Speaker 01: using the mail for any other purpose. [00:26:27] Speaker 01: The case the plaintiff wants to set up is the case where the union is speaking completely outside of what the statute and the CBA say that it's allowed to speak about. [00:26:39] Speaker 01: But that's not this case. [00:26:41] Speaker 01: And it's actually a much easier case than Perry, because in Perry, the CBA uniquely disqualified the rival union [00:26:51] Speaker 01: from using the internal email system. [00:26:53] Speaker 01: Other outsiders could use it, the exclusive representative could use it, but not the rival union. [00:27:00] Speaker 01: Here, nobody has access to the new employee orientations. [00:27:05] Speaker 01: No outsiders get to participate. [00:27:08] Speaker 01: No outsiders have ever gotten to participate. [00:27:11] Speaker 01: And the, you know, the decision to exclude outsiders is in viewpoint discrimination because it's not based on viewpoint. [00:27:19] Speaker 01: And it's perfectly reasonable because this is, you know, during the workday on work time. [00:27:26] Speaker 01: Unless the court has questions, we would urge that the court does not have to break any new ground to affirm the district court below and that the district court was right. [00:27:40] Speaker 01: That the tape here, the transcript, it was about the union. [00:27:46] Speaker 04: Thank you. [00:27:56] Speaker 00: Well, Your Honors, thank you again. [00:27:57] Speaker 00: Respectfully, this is the Tupperware case. [00:28:01] Speaker 00: Freedom Foundation is part of a conspiracy of dark forces against the union that want to take over your lives, owned by millionaires and billionaires, and the only remedy for you is to join a private political association. [00:28:13] Speaker 00: That point in particular was very interesting. [00:28:16] Speaker 00: The idea that the legislature's interest in this case was to open up taxpayer-funded venues with public employees for recruitment with private political organizations. [00:28:27] Speaker 00: That's not the purpose of these. [00:28:28] Speaker 00: new employee orientations. [00:28:30] Speaker 04: Your remedy not a First Amendment issue but going into state court to get an injunction against future misuse of the situation. [00:28:44] Speaker 00: Because our position, Your Honor, pursuant to cases like Rosenberger and Lamb's Chapel would be that once the government has opened up a forum, has enabled speech, and then excludes other speakers who wish to speak on the same topics that have been opened up, [00:28:59] Speaker 06: But counsel, it's not only the same topics. [00:29:01] Speaker 06: In Rosenberger, all of the student groups had the same status. [00:29:06] Speaker 06: They were all student groups. [00:29:08] Speaker 06: Your client does not have the same status as the collective bargaining representative. [00:29:14] Speaker 06: So it's a different situation, it seems to me. [00:29:18] Speaker 00: I think that we have different, I would agree, Your Honor, we have different statuses insofar as the speech is cabined within the purpose for which the unions are supposed to be there. [00:29:27] Speaker 00: If I'm invited to give a speech and talk about being an attorney and what my job is as an attorney, I don't have to gripe about judges or I don't have to gripe about opposing counsel. [00:29:35] Speaker 00: That would be outside the scope of what my job is as an attorney. [00:29:38] Speaker 00: If I'm invited in as a third party to talk about health care, I'm not free to opine on pro-choice or pro-life. [00:29:54] Speaker 00: Because those things. [00:29:56] Speaker 03: I mean, there's debates about what should be covered under health insurance, right? [00:30:00] Speaker 03: Under the Affordable Care Act. [00:30:01] Speaker 03: Where, who's going to face that line? [00:30:04] Speaker 00: I think that's the point, Your Honor. [00:30:05] Speaker 00: Those public topics, those topics of contentious public concern are exactly the kind of topics that are encompassed by the First Amendment. [00:30:12] Speaker 03: But how do you deal with Cornelius? [00:30:14] Speaker 00: With Cornelius, I think, again, [00:30:18] Speaker 00: Those are different cases. [00:30:19] Speaker 00: I think that Cornelius, Perry, and Boardman, those cases dealing with status, the key distinctions, and I see my time is up, the key distinctions in Perry, Boardman, and other cases cited by my friends on the other side are the unions in those cases did not go beyond what was prescribed by the statute in the CBA. [00:30:36] Speaker 00: Those are factually distinct from what we have in this case. [00:30:40] Speaker 00: And we'll be asked the court to reverse. [00:30:42] Speaker 03: Thank you. [00:30:49] Speaker 03: This matter is submitted.