[00:00:00] Speaker 03:
Thank you.

[00:00:00] Speaker 03:
Good morning, Your Honors.

[00:00:02] Speaker 03:
May it please the court, my name is Karen Swigert, and I'm appearing on behalf of Appellant Kate Adams.

[00:00:08] Speaker 03:
On New Year's Eve 2013, Kate Adams allegedly sent a private text message to a friend condemning racist images.

[00:00:15] Speaker 03:
Seven years later, Ms.

[00:00:16] Speaker 03:
Adams was constructively discharged from her employment for those private messages.

[00:00:20] Speaker 03:
It is undisputed that Ms.

[00:00:21] Speaker 03:
Adams was off duty when she sent those messages.

[00:00:25] Speaker 03:
It is also undisputed that

[00:00:28] Speaker 03:
Ms.

[00:00:28] Speaker 03:
Adams speech was unrelated to her employment.

[00:00:32] Speaker 03:
The issue on appeal here is the district court dismissed Ms.

[00:00:36] Speaker 03:
Adams First Amendment retaliation claims holding that Ms.

[00:00:39] Speaker 03:
Adams speech condemning racist images did not involve a matter of public concern.

[00:00:44] Speaker 03:
And this court granted interlocutory appeal to decide the narrow issue of whether private speech condemning racism

[00:00:50] Speaker 03:
should be afforded First Amendment protection.

[00:00:52] Speaker 00:
Oh, go ahead.

[00:00:54] Speaker 00:
A quick point to clarify.

[00:00:56] Speaker 00:
Does the record indicate or do the allegations indicate that there was something about two different people and I didn't understand whether the text message had been sent two different times or it was two people on the same text thread?

[00:01:12] Speaker 03:
We actually don't know that, Your Honor.

[00:01:13] Speaker 03:
There's a lot to be worked out in discovery.

[00:01:18] Speaker 03:
We have a very limited view of what was in these text messages.

[00:01:22] Speaker 03:
My client didn't have these text messages any longer, and so that is something that we don't know at this point.

[00:01:28] Speaker 04:
So my understanding is that this happened in 2013 on New Year's Eve, correct?

[00:01:33] Speaker 04:
Correct, Your Honor.

[00:01:36] Speaker 04:
Your client sent some videos of her kids on whatever they were doing.

[00:01:42] Speaker 04:
They were playing.

[00:01:46] Speaker 04:
They weren't videos, but they were screenshots or something, or picture images.

[00:01:52] Speaker 04:
And the claim was, I guess we're only able to recover part of them, because when this all becomes relevant, it's how many years later?

[00:02:01] Speaker 04:
Seven years later, Your Honor.

[00:02:03] Speaker 04:
Seven years later.

[00:02:04] Speaker 04:
And so at the time, it's between, they're all police officers, and at that time, what is your client's rank at that time?

[00:02:16] Speaker 03:
That's a good question.

[00:02:17] Speaker 03:
I believe that in 2017, she became chief of police.

[00:02:22] Speaker 03:
I'm not sure what her rank was at that time, but I believe she would have still been in management at that point.

[00:02:27] Speaker 04:
A captain, probably.

[00:02:28] Speaker 03:
Probably, Your Honor.

[00:02:29] Speaker 04:
And the two other people that saw these were what rank?

[00:02:33] Speaker 03:
I believe they were the same rank, Your Honor.

[00:02:35] Speaker 04:
So they were all like captains or something along those lines.

[00:02:38] Speaker 04:
And they were friends at the time.

[00:02:40] Speaker 04:
And so nothing comes about here.

[00:02:43] Speaker 04:
And then later it sounds like they weren't friends, possibility, because your client becomes chief of police and there are allegations that she had an IA investigation on one of these, there were complaints and then that person started complaining about her and that somehow so it came about.

[00:03:04] Speaker 04:
So the employment action where your client

[00:03:09] Speaker 04:
Basically, you're claiming she was forced to resign because of these ... We can't call them videos.

[00:03:17] Speaker 04:
What should we call them?

[00:03:19] Speaker 03:
I would say ... Green shots?

[00:03:22] Speaker 03:
I think that works.

[00:03:23] Speaker 03:
I mean, screenshots, yes.

[00:03:24] Speaker 04:
Green shots.

[00:03:26] Speaker 04:
Okay.

[00:03:26] Speaker 04:
In the district court's concern was that protecting ... It's really undisputed in the record that there was no employment grievance going on at that particular time.

[00:03:36] Speaker 04:
So we're really talking about on matters of public concern.

[00:03:41] Speaker 04:
And does an employee's First Amendment right to speak extend to all non-job related speech or only to non-job related speech on matters of public concern?

[00:03:56] Speaker 03:
I think that's an open question, Your Honor.

[00:03:58] Speaker 03:
I think that the Supreme Court in Roe versus San Diego has shaded that it might not be required to have that public concern requirement.

[00:04:05] Speaker 03:
I think that this court in Dibble has also suggested that.

[00:04:08] Speaker 03:
But we would say that under either standard, obviously under the standard, if you're required to meet the matter of public concern requirement for private speech, that this would pass and should be remanded for further consideration.

[00:04:20] Speaker 03:
But also, if there is a public concern requirement, I think that this also meets that.

[00:04:25] Speaker 03:
Because you have a situation here

[00:04:26] Speaker 03:
Whether or not a speech is in private or made publicly, it still has First Amendment protection.

[00:04:37] Speaker 03:
images related to racism and discussing racism.

[00:04:41] Speaker 03:
And this court and the Supreme Court has consistently said that racism is a matter of public concern.

[00:04:47] Speaker 04:
So your best cases are Rankin and Hernandez?

[00:04:51] Speaker 03:
Rankin, Hernandez, Your Honor.

[00:04:53] Speaker 03:
I would say for also NTEU, the court gave a great analysis there.

[00:04:58] Speaker 03:
The Supreme Court talked about

[00:04:59] Speaker 03:
What are the speech that wouldn't be related to job and employment that would be protected under the First Amendment?

[00:05:08] Speaker 03:
So you have a case where an engineer is speaking about I don't remember that this I think was a dance recitals but NTEU gives a lot of examples of work related cases where

[00:05:20] Speaker 03:
First Amendment speech is protected, even if it's not specifically related to something in the person's job.

[00:05:27] Speaker 00:
Let me ask, I think your toughest case to overcome, at least for me, is the City of San Diego case.

[00:05:33] Speaker 00:
And that's the case of the police officer who was posting videos and selling them.

[00:05:37] Speaker 00:
I guess he was in a police uniform and would undress himself and do other things.

[00:05:43] Speaker 00:
And there the court said, in a procurium opinion reversing our court said, it's not an NTEU case because that case did involve an adverse impact on the employer, even if the speech itself was not related to an employee grievance or internal operations of the police department.

[00:06:04] Speaker 00:
But then it also said, not all public employees' private speech requires pickering balancing.

[00:06:12] Speaker 00:
And it said that that case was not a matter of public concern because it didn't, and it was using Connick as a guidepost for figuring out what we should consider to be matters of public concern.

[00:06:28] Speaker 00:
Why is this purely private text message between two people different than the San Diego videos?

[00:06:36] Speaker 03:
I think that with the San Diego videos, it was getting to a place where it was impacting the workplace.

[00:06:43] Speaker 03:
And that moves it into a different analysis than what you have here.

[00:06:47] Speaker 03:
There was no allegation at this point in the proceedings that this was somehow hurting morale or hurting the department.

[00:06:54] Speaker 03:
It was a very different scenario than the San Diego case.

[00:06:59] Speaker 03:
And I think when you have, again, when you look at the NTEU cases, speech that is innocuous or not impacting the workplace, there's two different paths that you can choose in terms of the case law.

[00:07:13] Speaker 03:
And I think that the court chose the wrong one.

[00:07:15] Speaker 03:
The district court chose those that are for the close call cases.

[00:07:20] Speaker 03:
And that's when you get into looking at the form and the context.

[00:07:24] Speaker 03:
When you look at the content itself, and again, this court has said content is king.

[00:07:28] Speaker 03:
content is the primary thing that you look at.

[00:07:31] Speaker 03:
Racism is a matter of public concern.

[00:07:34] Speaker 00:
The court didn't need to get to form in context because the content itself... So in your view, any text message that involves racist content would be a matter of public concern?

[00:07:45] Speaker 00:
Because racism just always, almost like per se, is a matter of public concern?

[00:07:49] Speaker 00:
Any kind of racist text message of any kind would necessarily require pickering balancing?

[00:07:55] Speaker 03:
I think it would, Your Honor, and I think that's demanded by the court's standard and conic, and also has been adopted by this court.

[00:08:02] Speaker 03:
When you're talking about racial discrimination or racism, other things, that is inherently an issue that is a matter of concern for the public.

[00:08:09] Speaker 00:
I mean, if you're talking about racial discrimination, I would agree.

[00:08:12] Speaker 00:
If someone goes and puts a post up on Facebook or somewhere else on a platform saying, I denounce racism, or you're

[00:08:21] Speaker 00:
Articulating your views about racism, I would agree with you.

[00:08:25] Speaker 00:
I think that clearly is a matter of public concern.

[00:08:28] Speaker 00:
I guess to me, it's a little bit more fuzzy sharing a racist joke or a racist photo.

[00:08:34] Speaker 00:
And I'm not suggesting that Ms.

[00:08:35] Speaker 00:
Adams, that that was her intention, but I'm just, it seems a little bit hard for me to accept that just the pure sharing of it between two private individuals is enough to necessarily make it a matter of public concern.

[00:08:46] Speaker 03:
Well, let's talk about this, too, in terms of you mentioned the Pickering Balancing Test.

[00:08:50] Speaker 03:
We're not there yet.

[00:08:51] Speaker 03:
We haven't even gotten to the part where you balance it.

[00:08:53] Speaker 03:
We're just at, is this a matter of public concern?

[00:08:56] Speaker 03:
Once you get to Pickering Balancing, you then decide, you weigh it and look at the potential damage for the agency and other things.

[00:09:03] Speaker 04:
So even if your client wins here, it would go back, and then there's more that has to be done.

[00:09:09] Speaker 03:
Yes, Your Honor.

[00:09:11] Speaker 02:
Why do you say that under CONNIC that form and context don't matter?

[00:09:16] Speaker 02:
I would say that... Basically, it's content, form, context, and you're saying, no, form and context don't matter.

[00:09:26] Speaker 03:
I would say that for cases where...

[00:09:27] Speaker 03:
The content is so clear that they don't matter.

[00:09:31] Speaker 03:
And if you look at her name.

[00:09:32] Speaker 02:
What's your best case on that?

[00:09:34] Speaker 03:
Hernandez.

[00:09:35] Speaker 02:
Because the problem I have with this is that you've got this, as Judge Sanchez said, it's not posted.

[00:09:43] Speaker 02:
It's saying, oh, here's what some jerk sent me.

[00:09:47] Speaker 02:
Why does that automatically qualify when the context is private and intended not for public consumption?

[00:09:55] Speaker 03:
If you look at, so the cases again, this court has said that content is king and content has primacy in terms of reviewing whether this is a matter of public concern.

[00:10:05] Speaker 03:
If the content is there, there's no need to get those other things.

[00:10:09] Speaker 03:
And again, if you look at Hernandez, this court has said that.

[00:10:11] Speaker 04:
Do you think that it said that or it said when the content is so clear that the others become less?

[00:10:17] Speaker 04:
Or did it say you don't need to worry about the other?

[00:10:20] Speaker 04:
I think it's- I mean, Hernandez seemed to focus on if you have a

[00:10:24] Speaker 04:
a subject matter that's clearly would be a public concern.

[00:10:29] Speaker 04:
They did seem less concerned about the other two, but I think Judge Shub said, well, I'm concerned that we're conflating all three.

[00:10:39] Speaker 03:
Contents, I would argue that the standard that's out there is that

[00:10:43] Speaker 03:
If there is content that is a matter of public concern, the other two you don't need to look at.

[00:10:50] Speaker 03:
And the only time that you have to get to those other two is when it is a close call case.

[00:10:55] Speaker 03:
So when it's a workplace grievance, when it's something within the

[00:10:59] Speaker 00:
you know, inner workings of the department or... I guess I have a bit of a hard time with that because Hernandez, I think the form really did matter.

[00:11:08] Speaker 00:
The fact that this was posted on Facebook, it was to friends, but it was generally accessible, meant that it was a form of speaking out into the public square, and then you have this content, these anti-Muslim statements that were being made on those postings.

[00:11:23] Speaker 00:
That seems to me to be pretty different than a private text message between two individuals.

[00:11:27] Speaker 00:
Are there any Ninth Circuit cases that talk about this in the context of private text messages?

[00:11:35] Speaker 03:
There aren't.

[00:11:36] Speaker 03:
This isn't something, at least not that I have found, Your Honor.

[00:11:40] Speaker 04:
I would say, though... What about the case on the bar where the

[00:11:44] Speaker 04:
person said something about, I hope they get the guy, I hope they get Reg in the neck, heard the newscast.

[00:11:50] Speaker 03:
That is the, I believe it's Reven is how it's pronounced case, Your Honor, and that one was certainly in a workplace that was a private message, and there's a lot of case law, and that was a Supreme Court case, Reven.

[00:12:02] Speaker 00:
Oh, you mean Rankin?

[00:12:03] Speaker 03:
Rankin, I'm sorry, Your Honor, yes.

[00:12:05] Speaker 03:
In the Rankin case, again, that was a private, one person to another, it was overheard, and on that basis, that person was,

[00:12:13] Speaker 03:
I believe they were removed from office or whatever their employment was.

[00:12:17] Speaker 03:
So certainly there are cases out there and this court has ruled itself that privacy.

[00:12:22] Speaker 04:
Well, and that and the Supreme Court said, was that person working at the time or ranking?

[00:12:27] Speaker 03:
I believe they were, Your Honor.

[00:12:29] Speaker 04:
Yeah.

[00:12:30] Speaker 04:
But it was said to someone else in response to a bulletin that some sort of news announcement that there had been an attempt on Reagan's life or something like that.

[00:12:40] Speaker 04:
And they said, next time I hope you get him.

[00:12:43] Speaker 04:
But they said that that was protected speech?

[00:12:45] Speaker 03:
They did, Your Honor.

[00:12:46] Speaker 03:
That was protected.

[00:12:47] Speaker 03:
It was a private, another private conversation, one person to another.

[00:12:51] Speaker 03:
It was overheard by a supervisor, and that person was, there was action taken against them for it.

[00:12:58] Speaker 03:
And so I have, Your Honor's conversation, I don't think there's a case out there about text messages, but certainly there are analogous cases.

[00:13:08] Speaker 03:
And the court just spoke to the one that's the most important there, which is,

[00:13:13] Speaker 03:
the private case, private speech that was overheard.

[00:13:19] Speaker 03:
And I think that is a great analogy to what we have here.

[00:13:21] Speaker 03:
There was private speech, one text message to another.

[00:13:24] Speaker 03:
It was brought to the attention of the department seven years later.

[00:13:26] Speaker 03:
She was eventually discharged for it.

[00:13:30] Speaker 03:
And I feel like that's a good answer to your court's question.

[00:13:35] Speaker 04:
Do you want to, unless there's other questions, do you want to save the balance for rebuttal?

[00:13:39] Speaker 03:
I would, please, Your Honor.

[00:13:40] Speaker 03:
Thank you.

[00:13:49] Speaker 01:
Good morning, Your Honors.

[00:13:50] Speaker 01:
May I please support?

[00:13:50] Speaker 01:
Morning.

[00:13:51] Speaker 01:
My name is Dylan DeWitt.

[00:13:52] Speaker 01:
I represent Defendants Appellee, Sacramento County, and Scott Jones.

[00:13:56] Speaker 01:
Your Honors, the District Court made a well-reasoned and well-supported decision finding that plaintiff's racist images in a text message thread with a vague comment regarding who sent it to her were not a matter of public concern.

[00:14:09] Speaker 04:
Well, the District Court even acknowledged this is close.

[00:14:12] Speaker 04:
Okay, that's why we're here.

[00:14:14] Speaker 01:
You're right, Your Honor.

[00:14:14] Speaker 01:
It's close on the content.

[00:14:16] Speaker 01:
Of course, mentioning racism broadly may be close on the content, but that's why the district court needed to look to form in context to decide whether it took it over that prima facie burden there.

[00:14:29] Speaker 01:
On the content,

[00:14:30] Speaker 04:
Well, maybe you can start with what's the right default starting point when approaching a case of public employee speech?

[00:14:39] Speaker 04:
Do public employees generally have the same First Amendment protection as any citizens, or do public employees generally lack First Amendment protection except when speaking on matters of public concern?

[00:14:54] Speaker 04:
So what's your starting point?

[00:14:56] Speaker 01:
Right close to the middle, lean into your ladder.

[00:14:58] Speaker 01:
Okay, maybe you need to get a little more specific on that.

[00:15:03] Speaker 01:
The CONIC test acknowledges both protections for public employee speech while also acknowledging the needs of a government employer to act as an employer.

[00:15:15] Speaker 01:
That's why the prima facie element of public concern

[00:15:18] Speaker 01:
lends us to say a public employee's speech rights are limited to those of public concern.

[00:15:25] Speaker 04:
Well, it seems like at this point, at the juncture where we are, it's undisputed that there was no ongoing grievance or anything.

[00:15:33] Speaker 04:
These people were friends.

[00:15:35] Speaker 04:
It was on their own time.

[00:15:36] Speaker 04:
It was on a private.

[00:15:38] Speaker 04:
Is that pretty undisputed for what we have right here?

[00:15:42] Speaker 01:
It's undisputed, and it speaks directly to why the content falls short on the public concern element.

[00:15:47] Speaker 04:
Well, Hernandez is, I think, and Rankin are difficult cases for you.

[00:15:54] Speaker 04:
Because Rankin particularly, that was a private conversation that was overheard.

[00:16:00] Speaker 04:
And here, if you want to say it's a private conversation between these three people, but then

[00:16:09] Speaker 04:
Some seven years later, someone wants to get rid of the chief of police and brings that up, and it sounded like they even brought it up in the context that they said that she, they tried to imply that she was the one that circulated those, which I guess is undisputed at this point, that they were sent to her by someone, and she had a comment, look at what this racist thing that some stupid person sent to me.

[00:16:39] Speaker 04:
But that controversy wasn't involved at the time.

[00:16:42] Speaker 01:
That's true.

[00:16:44] Speaker 01:
A couple points there.

[00:16:47] Speaker 01:
First, speaking on the content of her text messages here, we're on a motion to dismiss, so we're going to take plaintiff's conclusory allegations that she was opposing the racist images at face value just for determining it.

[00:16:59] Speaker 01:
And second, regarding Rankin, and then Hernandez after that.

[00:17:04] Speaker 01:
Rankin specifically spoke on an item of legitimate news interest.

[00:17:09] Speaker 01:
And that's what set it apart from plaintiff's speech here.

[00:17:12] Speaker 01:
Plaintiff did not give any opinion to the public discourse that would have spoke to a news item.

[00:17:18] Speaker 04:
Well, according to her at this point, she said that she condemned that some, this, what were, she condemned that someone had sent it to her and she thought that they were racist.

[00:17:29] Speaker 04:
So apparently she did.

[00:17:31] Speaker 01:
She did, but the question needs to be, would that be of public concern to the public?

[00:17:35] Speaker 04:
And without any more facts pleaded, and she's had an opportunity to add those facts, the conclusion on the content needs to be that- Well, but apparently, when you dredge this up seven years later, she was told, according to her, that, yeah, the public would be really concerned about that, and it'll be a whole firestorm, so why don't you resign?

[00:17:57] Speaker 01:
So I don't know, it seems like you're talking out of two sides of your mouth here.

[00:18:02] Speaker 01:
The form and context then come into play.

[00:18:05] Speaker 01:
Did she make an attempt to add this or put it into the public discourse as did Hernandez when he posted publicly on his Facebook page as Judge Sanchez had mentioned?

[00:18:15] Speaker 00:
But I mean, I agree with Judge Callahan.

[00:18:17] Speaker 00:
I think Rankin's your toughest case to overcome on your end, because the form is purely private.

[00:18:23] Speaker 00:
It's a passing comment between two private individuals.

[00:18:26] Speaker 00:
No one's trying to broadcast it anywhere.

[00:18:28] Speaker 00:
And how different is it to say, I hope they get him, and perhaps an unwise comment to make at a job.

[00:18:39] Speaker 00:
But how different is it then just, oh, hey,

[00:18:44] Speaker 00:
and unwise passing along of a racist screenshot.

[00:18:47] Speaker 00:
Why are they so different from each other?

[00:18:49] Speaker 01:
The difference comes from this court's guiding standards when determining whether the content might rise to the level of a public concern.

[00:18:57] Speaker 01:
Specifically, again, does it provide any kind of input to the public discourse?

[00:19:02] Speaker 01:
Is it something of legitimate news value?

[00:19:04] Speaker 01:
Or does it speak on operations of government functions?

[00:19:08] Speaker 01:
Obviously, Rankin didn't apply to that.

[00:19:10] Speaker 01:
But the former, it did.

[00:19:11] Speaker 01:
She was speaking directly to a news headline and giving her opinion, as any citizen speaking should be free to do so.

[00:19:19] Speaker 04:
If she had hypothetically made this comment, take the same comment, but it's before she was a police officer, could you discipline her for that?

[00:19:32] Speaker 01:
I believe so.

[00:19:34] Speaker 01:
It would have come under the same analysis here.

[00:19:37] Speaker 01:
You would look to whether the individual speaking was speaking to a matter of public concern and whether the form and context were intended to provide any kind of input into that context.

[00:19:51] Speaker 04:
So the fact that she was a police officer at the time has nothing to do with this?

[00:19:55] Speaker 04:
It has little to do with it.

[00:19:56] Speaker 04:
It seems like it has a little bit to do with whether you're a public employee or whether you were speaking as strictly a private citizen.

[00:20:03] Speaker 01:
It speaks to specifically why we get into this test in the first place because it's an employee engaging in this speech.

[00:20:17] Speaker 01:
It would even speak to why it's even more private, I would argue.

[00:20:21] Speaker 01:
The individual making the speech in a private text message that was not intended to be publicized in any manner.

[00:20:29] Speaker 01:
It was sharing racist meme images and then making a vague comment.

[00:20:34] Speaker 04:
But that's not the allegation here.

[00:20:35] Speaker 04:
They're not, I mean, they're, your facts in this case, and no one's disputing it, is they were screenshots that she spoke against.

[00:20:45] Speaker 04:
So you would be able to discipline her

[00:20:49] Speaker 04:
many, many years later for that conversation as a private citizen?

[00:20:54] Speaker 01:
You would be able to do so because she wouldn't be speaking on a matter of public concern.

[00:21:00] Speaker 01:
Whether the person is employed at the time or not, the Connick test applies, and the district court looked at the entirety of the record here and found that she couldn't meet that prima facie element.

[00:21:15] Speaker 02:
for the sake of argument that this speech was private and did not involve a matter of public concern.

[00:21:22] Speaker 02:
Did it become a matter of public concern when she was later disciplined?

[00:21:28] Speaker 01:
It did not, Your Honor.

[00:21:29] Speaker 02:
Why isn't that transformed as a matter of public concern when they say the public's going to be concerned about this and we're firing you?

[00:21:37] Speaker 02:
So we don't have a case law that really talks about whether private speech then later becomes a matter of public concern, but why is it not logical that when one would say in this case, it was private then but of public concern now?

[00:21:53] Speaker 01:
I think either way you would look at the entirety of the record and look to whether that speaker that employee.

[00:22:01] Speaker 04:
But according to your the allegations here is when the police department found out about it they told her if the public sees this.

[00:22:10] Speaker 04:
they're just gonna go bananas.

[00:22:13] Speaker 04:
So they obviously, and when the public, and then someone sent it to the Sacramento Bee, and not even in the correct context, and bananas happened.

[00:22:25] Speaker 04:
So it just seems like a disingenuous argument to say, as I think my colleague was saying, well, the public was pretty concerned

[00:22:38] Speaker 01:
That's right, Your Honor.

[00:22:39] Speaker 01:
I think it's conflating the analysis a bit.

[00:22:41] Speaker 01:
What we're speaking to at that point is speaking more to the balancing test at the later stage.

[00:22:46] Speaker 01:
Here, we're just discussing that first prima facie element.

[00:22:49] Speaker 04:
Whether she gets past that so that the court goes on, right?

[00:22:54] Speaker 04:
She's just trying to state a cause of action right now, right?

[00:22:57] Speaker 01:
If she were to successfully state it, she'd need sufficient facts showing that she either made an attempt to contribute to the public discourse or made an attempt to speak on governmental functions.

[00:23:10] Speaker 01:
The entirety of the record here shows that she can't meet that first element.

[00:23:13] Speaker 04:
Well, what case would say that talking to two of your colleagues is not the public and two of your colleagues that are police captains?

[00:23:24] Speaker 04:
I mean, do we have

[00:23:25] Speaker 04:
I think part of it is we don't have that line drawing here, right?

[00:23:29] Speaker 04:
And that's what Judge Shub struggled with.

[00:23:30] Speaker 04:
That's why it's an interlocutory appeal.

[00:23:33] Speaker 01:
The privacy of the discussion is certainly a fact to consider.

[00:23:39] Speaker 01:
One case that can be looked to for guidance is the 10th Circuit's case in Landby Monroe, Monroe's rather, where the court looked to a text message sent by a former employee who had worked at a new district

[00:23:52] Speaker 01:
and texted a friend and colleague saying, I don't like working here anymore.

[00:23:57] Speaker 01:
Racism.

[00:24:00] Speaker 01:
That's all he said.

[00:24:00] Speaker 01:
There was no more context to it.

[00:24:02] Speaker 01:
He did not speak on any actual operating governmental functions in saying it.

[00:24:07] Speaker 01:
And the court there found, no, the content does not necessarily meet the standard.

[00:24:12] Speaker 01:
And even when we consider that form in context, the fact that the employee there went to lengths to ensure that he was keeping that message private between him and a friend cut against on the factors balance, it being a matter of public concern.

[00:24:28] Speaker 00:
When we think about whether something's a matter of public concern, should we consider what effect it might have if it gets revealed or no?

[00:24:40] Speaker 00:
Just to juxtapose two cases, the San Diego case obviously garnered a lot of public interest when it was revealed that this officer had been doing these strip teases and selling videos.

[00:24:53] Speaker 00:
But nevertheless, the Supreme Court there said that was not a matter of, that was not speech touching on a matter of public concern.

[00:25:00] Speaker 00:
But would it be different if the text messages here were already coming from a chief of police as opposed to someone of a lower rank?

[00:25:09] Speaker 00:
As Judge Callahan just mentioned, it did garner newspaper interest and coverage when it came out.

[00:25:15] Speaker 01:
Yeah, you're right, Your Honor.

[00:25:17] Speaker 01:
If you look to the city of San Diego v. Roe, that speech

[00:25:22] Speaker 01:
did, or rather, the governmental employer found that if this comes out, it will cause public outcry, but nevertheless looked at the intent of that speaker and the content of the speech and found that the public concern element fell short.

[00:25:38] Speaker 01:
Similarly here, there was no intent to make it public at the time of the speech.

[00:25:46] Speaker 01:
And like Roe, the content of it is not enough to create a matter of public concern, and the form and context of the speech also here cuts heavily against.

[00:25:56] Speaker 04:
It seems evolving technology, though.

[00:25:58] Speaker 04:
At the time, Rankin, it's in a bar.

[00:26:01] Speaker 04:
Okay, it's just people talking.

[00:26:03] Speaker 04:
Then in Hernandez versus the City of Phoenix, the officer posted xenophobic memes on his Facebook profile, and that was held to be speech on a matter of public concern.

[00:26:15] Speaker 04:
So, you know, we've kind of evolved from, first we didn't, I know it would be difficult for the students to understand, but we didn't always have iPhones, all right, and there wasn't, and even at the time that I think that Hernandez was, Facebook wasn't even as prominent at the time in 2013 as things have subsequently become.

[00:26:40] Speaker 04:
So the phone, when you're texting people,

[00:26:43] Speaker 04:
That was how that you could have group texts.

[00:26:46] Speaker 04:
You could have a lot of ways to reach people.

[00:26:50] Speaker 04:
That certainly seems like going more public than just talking to someone in your home.

[00:26:56] Speaker 04:
And Rankin says that that was enough in the bar.

[00:27:00] Speaker 01:
Rankin also weighed heavily that first factor, that content factor.

[00:27:05] Speaker 01:
But even looking at the form and context of it.

[00:27:09] Speaker 04:
Well, if people get fired for racist comments,

[00:27:13] Speaker 04:
It's hard to say that's not very of public concern.

[00:27:17] Speaker 04:
I mean, it seems like it's more a public, I think as Judge Sanchez said, it's obviously something of very public concern of people.

[00:27:28] Speaker 01:
It speaks directly to the necessity of considering all three factors in that analysis, also considering form and context.

[00:27:35] Speaker 04:
I mean, they have people at Halloween parties in blackface that then have to face situations many, many years later that that was racist.

[00:27:44] Speaker 01:
Yeah, in that situation, there would be no contribution to the legitimate news interest.

[00:27:50] Speaker 01:
There would be no operation of government.

[00:27:53] Speaker 01:
There would be no content that made it something that would make it of public interest.

[00:27:58] Speaker 01:
This court also mentioned in Weeks v. Behr that we avoid rigid tests like appellant is asking here, racism equals matter of public concern.

[00:28:08] Speaker 01:
We avoid those rigid tests because if we did so,

[00:28:11] Speaker 01:
we'd effectively raise every water cooler conversation to a constitutional issue, flooding the courts with First Amendment cases whenever a governmental employer took action.

[00:28:21] Speaker 04:
The issue in this case is not whether she made a racist comment because it's her position at this point

[00:28:28] Speaker 04:
that she was commenting on some racist screenshots that were sent to her and that it was disgusting.

[00:28:35] Speaker 01:
So... That's right, Your Honor.

[00:28:38] Speaker 01:
Again, I think the content factor weighs slightly for her.

[00:28:42] Speaker 01:
Again, she doesn't make any attempt to make it public, and that's why form and context are extremely important here.

[00:28:48] Speaker 01:
She specifically engaged purposely in private conversation, never intending for that conversation to be public.

[00:28:55] Speaker 04:
But it's not...

[00:28:57] Speaker 04:
It's not the intent for it to be public.

[00:28:59] Speaker 04:
It has to be on matters of public concern.

[00:29:01] Speaker 04:
Isn't that the element we're talking about?

[00:29:04] Speaker 04:
Not your intent.

[00:29:05] Speaker 04:
for it to be public.

[00:29:06] Speaker 01:
It is, but as this court has mentioned in Hernandez, also mentioned in the Roe case, the intent does matter.

[00:29:12] Speaker 01:
The speaker's intent at the time needs to be considered as to determining whether when making the speech, the employee intended to submit some kind of public concern item into the public discourse.

[00:29:25] Speaker 01:
And here, based on the content, form, and context, the district court correctly found that she did not.

[00:29:31] Speaker 04:
Well, there's kind of a saying that the Hell's Angels have, two can keep a secret if one is dead.

[00:29:36] Speaker 04:
So at the point that you tell one person something, don't you put it in the public domain at this point?

[00:29:43] Speaker 04:
Or certainly on a text, but I mean that they say, you know, love may not be forever, but the images that you post on Instagram certainly are.

[00:29:54] Speaker 01:
That's right, Your Honor.

[00:29:55] Speaker 01:
It does look to, at the time of the speech, did the employee intend to submit a matter of public concern?

[00:30:02] Speaker 01:
And here, based on those factors, she did not.

[00:30:05] Speaker 04:
OK.

[00:30:05] Speaker 01:
Thank you.

[00:30:06] Speaker 04:
Thank you.

[00:30:13] Speaker 03:
My colleague mentioned the 10th Circuit case, Lam versus Montrose.

[00:30:17] Speaker 03:
That was an unreported opinion and not binding in the 10th Circuit.

[00:30:21] Speaker 03:
And if you look at .

[00:30:21] Speaker 03:
.

[00:30:21] Speaker 03:
.

[00:30:21] Speaker 04:
Well, let me just ask you.

[00:30:22] Speaker 03:
Sure.

[00:30:22] Speaker 04:
I mean, obviously Judge Shubb and everyone's concerned about opening Pandora's box and making every comment one of public concern.

[00:30:31] Speaker 04:
What if all the facts are the same except Ms.

[00:30:35] Speaker 04:
Adams' texts were complaining about a contractor who had botched a project on her house?

[00:30:41] Speaker 04:
And she used harsh and colorful language that the department found unbecoming of an officer.

[00:30:46] Speaker 04:
What do you do with that?

[00:30:48] Speaker 03:
I think that's still a matter of public concern.

[00:30:50] Speaker 03:
It's an employment.

[00:30:52] Speaker 04:
The question, again, then gets later in the ... Well, so you're making everything a matter of public concern then.

[00:30:59] Speaker 03:
Well, if you look ... So look at the standard in Lane versus Frank's Supreme Court decision.

[00:31:05] Speaker 03:
It's a matter of political, social, or other concern to the community.

[00:31:10] Speaker 03:
Anything related to general interest or value of concern to the public.

[00:31:15] Speaker 03:
So if there's value of concern to the public, then it is a matter of public concern.

[00:31:21] Speaker 03:
That doesn't mean that you automatically skip over the rest of the pickering balancing to us.

[00:31:25] Speaker 00:
So Judge Callahan's example, complaining about a contractor at their home, that's a matter of public concern?

[00:31:34] Speaker 03:
Well, is it a matter that's of benefit to the public?

[00:31:39] Speaker 03:
So I guess I should clarify the court's question.

[00:31:41] Speaker 03:
Is it complaining directly to the contractor, or is it complaining to her?

[00:31:45] Speaker 04:
No, complaining to her two friends, just like if that's what she had complained about that night.

[00:31:49] Speaker 03:
I think that that's a much lesser opportunity for that to be happening.

[00:31:53] Speaker 04:
Well, you're kind of backing up, like beep, beep, because you saw the shocked look on her faces, because you're opening Pandora's box here.

[00:32:02] Speaker 04:
I think that goes against your argument.

[00:32:04] Speaker 03:
Well, why should the, I guess the question is why should the state be able to fire them?

[00:32:08] Speaker 04:
She can say whatever she wants and somehow it's a matter of public concern.

[00:32:11] Speaker 03:
I would say she can say if it's a subject of general interest and a value and concern to the public.

[00:32:16] Speaker 04:
But a home, but a contractor not doing a good job at her house, is that the same?

[00:32:22] Speaker 03:
It's not the same as racism, certainly.

[00:32:24] Speaker 03:
I think that racism is much closer to something that's of value and concern to the public and would be of interest to the public.

[00:32:30] Speaker 03:
That's the content there.

[00:32:32] Speaker 04:
But again, if you can... I'm not sure we'd be here if that had been the comment.

[00:32:36] Speaker 04:
Sure, but I'm also... But you're saying, but you just wanna fling that box right open and let everything she ever said... No, I mean, the question is, what is a...

[00:32:47] Speaker 03:
she was fired for this offense she was a fired fired for this speech so is that a matter of public concern it only becomes something that comes to this court if the person's fired over it and that's why we're here but then that's that's kind of a self-fulfilling prophecy if if if someone is fired over the position and it becomes newsworthy then that means

[00:33:07] Speaker 00:
anything that gets communicated becomes a matter of public concern, and it can't be that, can it?

[00:33:13] Speaker 00:
It can't be that, but that's why you have... I had my own example of, let's say a public official sends a text message that's adulterous, trying to set up a meeting with someone, and then that comes to light and a person's fired over it.

[00:33:27] Speaker 00:
Is that private message a matter of public concern in your view?

[00:33:32] Speaker 03:
The content, I don't think would be, I don't know if it would be a subject of general interest.

[00:33:38] Speaker 03:
I'm not sure about that.

[00:33:38] Speaker 04:
Her husband might care about it, but is it that they're trying to fool around with someone else, but does the whole community care about adultery?

[00:33:49] Speaker 03:
I think that's an open question for a court to consider when that comes up.

[00:33:52] Speaker 03:
But I think that the main thing, this is the first hurdle.

[00:33:56] Speaker 03:
We're at a motion to dismiss stage.

[00:33:57] Speaker 03:
Her First Amendment retaliation claims were kicked out because

[00:34:00] Speaker 03:
She didn't meet this threshold of matter of public concern.

[00:34:03] Speaker 03:
You get to those questions of whether there was some kind of detriment to the employment agency later on in the analysis.

[00:34:12] Speaker 03:
And I would just point the court to Disroachers versus City of San Bernardino where this court said only in a close case where subject matter is only marginally related to issues of public concern does the court look to whether a statement was made

[00:34:27] Speaker 03:
in a grudge or a private interest or something or else.

[00:34:30] Speaker 03:
That form and content only comes into play when you have something that is not squarely in the public's interest.

[00:34:37] Speaker 03:
Doesn't matter whether it's public or private.

[00:34:39] Speaker 03:
Doesn't matter whether it's about a workplace.

[00:34:42] Speaker 03:
It's that subject matter, that content that matters.

[00:34:44] Speaker 03:
And I would suggest that racism is something that's very important and central to our country still.

[00:34:50] Speaker 03:
It's still a matter of public concern.

[00:34:53] Speaker 04:
We don't appear to have any additional questions.

[00:34:56] Speaker 04:
Thank you, Your Honor.

[00:34:57] Speaker 04:
Thank you both for your argument.

[00:34:58] Speaker 04:
In this matter, it will stand submitted.

[00:35:00] Speaker 04:
So this court's going to be in recess until we come back out to speak to the students.

[00:35:06] Speaker 04:
And I believe that the law clerks will be talking to you.