[00:00:00] Speaker 03:
Each side has 15 minutes for argument.

[00:00:05] Speaker 03:
And let's start with Ms.

[00:00:08] Speaker 03:
Reynolds' counsel, if you would please specify how much time you would like to reserve for rebuttal.

[00:00:17] Speaker 04:
Good morning, Your Honor.

[00:00:19] Speaker 04:
Um, just to be clear as the appellee, I was anticipating I'd go second.

[00:00:23] Speaker 03:
Oh, you're right.

[00:00:24] Speaker 03:
You're right.

[00:00:24] Speaker 03:
I apologize.

[00:00:25] Speaker 03:
Let's, let's have, uh, Mr. Preston's counsel go first.

[00:00:29] Speaker 03:
And how much time would you like to reserve for rebuttal?

[00:00:32] Speaker 01:
Good morning, your honor.

[00:00:33] Speaker 01:
Five minutes, if I may.

[00:00:36] Speaker 03:
That's fine.

[00:00:37] Speaker 01:
Go ahead, please.

[00:00:41] Speaker 01:
Good morning.

[00:00:41] Speaker 01:
May I please the court?

[00:00:42] Speaker 01:
I'm deputy city attorney, Tara Steely, on behalf of supervisor Preston.

[00:00:47] Speaker 01:
Preston is entitled to qualified immunity because Reynolds has not alleged a violation of her constitutional rights.

[00:00:54] Speaker 01:
Under Linkey, Preston did not engage in state action, which is a necessary element of Reynolds' First Amendment claim.

[00:01:00] Speaker 01:
Instead, Preston exercised his own First Amendment rights on Twitter when he controlled who could access his posts.

[00:01:07] Speaker 01:
Reynolds asserts that the court's decision in Garnier transformed his account into a designated public forum.

[00:01:14] Speaker 01:
And thereafter, she experienced...

[00:01:18] Speaker 01:
I can, thank you.

[00:01:23] Speaker 01:
She alleges that thereafter, after Garnier was decided, that she experienced a continuing violation of her First Amendment rights.

[00:01:32] Speaker 01:
But the Supreme Court foreclosed that argument when it vacated Garnier and announced a new standard in Lincoln.

[00:01:38] Speaker 01:
The first prong of the qualified immunity test applies the law as it exists today.

[00:01:44] Speaker 01:
Reynolds' claim, therefore, cannot be based on Garnier.

[00:01:47] Speaker 01:
she must state a claim under Linkey.

[00:01:50] Speaker 02:
So should this court, counsel, should this court reach both prongs of the qualified immunity analysis?

[00:01:57] Speaker 01:
I think you should, Your Honor, especially because we do have a new standard announced in Linkey.

[00:02:02] Speaker 01:
So I think it would be appropriate for this court to analyze whether the allegations have stated a claim under Linkey.

[00:02:09] Speaker 01:
And also, if they do, then reach the second prong, which is

[00:02:14] Speaker 01:
whether that law was clearly established at the time of the posts.

[00:02:19] Speaker 03:
But we don't have a district court order analyzing the first prong of qualified immunity, and the record is pretty sparse.

[00:02:27] Speaker 01:
That's true.

[00:02:27] Speaker 03:
Do you still think we should go ahead?

[00:02:30] Speaker 01:
I do, Your Honor.

[00:02:31] Speaker 01:
I mean, this court gave counsel from Reynolds an opportunity to come forward and explain why they think they've stated a claim under Linkey.

[00:02:39] Speaker 01:
They have not done so.

[00:02:40] Speaker 01:
But even if

[00:02:42] Speaker 01:
You know, I agree that they did not brief this case under Linkey, of course, because it was just decided a couple months ago.

[00:02:49] Speaker 01:
But nonetheless, Reynolds is entitled to qualified immunity because the Linkey test was necessarily not known to him at the time he acted during the relevant time period of this case, which is 2020.

[00:03:02] Speaker 01:
I mean, sorry, 2022.

[00:03:05] Speaker 03:
Would it be fair to give

[00:03:09] Speaker 03:
Miss Reynolds opportunity to amend the complaint in light of linky.

[00:03:13] Speaker 03:
It's a new test established by the Supreme Court.

[00:03:17] Speaker 01:
So I don't think so, and the reason is for the reason I just said, which is that even if she could amend her complaint to state a claim under linky, Reynolds is still I'm not sorry, not Reynolds.

[00:03:28] Speaker 01:
Preston is still entitled to qualified immunity, and that's because the Reynolds sorry, the linky standard was not clearly established.

[00:03:37] Speaker 02:
That may be true.

[00:03:38] Speaker 02:
And I think that that sort of perhaps supports the view that under the second prong, Preston is entitled to qualified immunity.

[00:03:48] Speaker 02:
But, you know, my question, I think the one Judge Coe's following up on really relates to whether or not the first prong

[00:03:54] Speaker 02:
of the analysis relating to whether there was a constitutional violation in the first instance should be addressed by this court at the motion to dismiss stage when Ms.

[00:04:05] Speaker 02:
Reynolds hasn't had an opportunity to amend or complete.

[00:04:09] Speaker 01:
I think what's important under the first prong of the analysis is to recognize that the Linkey standard is the governing standard.

[00:04:19] Speaker 01:
We see under Sandoval that that's the standard the court applies.

[00:04:22] Speaker 01:
And then once the court makes that determination, then the only remaining thing for the court to decide is whether that law was clearly established during the relevant time period.

[00:04:32] Speaker 01:
And I think it's clear that it was not since Linkey was established, was just announced two months ago.

[00:04:40] Speaker 01:
So I don't think this court has to decide whether the Constitution was violated under Linkey.

[00:04:46] Speaker 01:
I think it's enough to recognize that Linkey sets the governing standard

[00:04:50] Speaker 01:
and then apply the second prong of the qualified immunity analysis.

[00:04:54] Speaker 03:
So I'm unclear.

[00:04:55] Speaker 03:
You're saying reach the first prong, but that is whether a constitutional violation has occurred.

[00:04:59] Speaker 03:
And now you're saying, well, now you don't need to really reach whether a constitutional violation has occurred.

[00:05:04] Speaker 03:
What exactly is the city's position?

[00:05:07] Speaker 00:
Sounds like don't reach the first prong is now what you're saying.

[00:05:10] Speaker 01:
I think the importance of the first prong is to identify what is the challenge conduct at issue, right?

[00:05:16] Speaker 01:
And the challenge conduct cannot be anything based on Garnier.

[00:05:20] Speaker 01:
It has to be an allegation under Linkey.

[00:05:24] Speaker 01:
But I think, again, the important thing is that Linkey was not governing law at the time of the actions at issue in this case, which, again, is from the 2022 time period.

[00:05:38] Speaker 03:
So it sounds like you're saying just identify what the dispute is, but don't reach whether a constitutional violation has taken place.

[00:05:47] Speaker 03:
Is that your position?

[00:05:49] Speaker 01:
I think that's correct, Your Honor.

[00:05:51] Speaker 03:
Well, then I would interpret that to mean don't reach prong one.

[00:05:56] Speaker 01:
Is that incorrect?

[00:05:58] Speaker 01:
Well, I think it's not necessary to resolve prong one.

[00:06:02] Speaker 01:
I think you have to look at prong one to determine what is the governing, the challenge conduct

[00:06:08] Speaker 01:
that's an issue in prom too.

[00:06:11] Speaker 01:
Because whatever the challenge conduct is has to be something that at least arguably could state a violation of the constitution under prom law.

[00:06:22] Speaker 03:
Would you can see that the tweet regarding defunding the San Francisco Police Department is speech in a matter within which Preston and the Board of Supervisors would have responsibility would have it would fall within Preston's bailiwick.

[00:06:46] Speaker 01:
So the question of whether so under the Linkey test, the first standard is whether the

[00:06:52] Speaker 01:
City has authorized Preston to speak on his behalf about a particular matter within his bailiwick.

[00:06:59] Speaker 01:
So the board can act in some way about defunding the police, but the city has not authorized Preston to speak on the city's behalf about that topic.

[00:07:14] Speaker 03:
But you would concede that it would be a matter for which the Board of Supervisors would have responsibility, correct?

[00:07:24] Speaker 01:
Certainly voting on funding for departments within the City is something that the Board can do as a body.

[00:07:32] Speaker 01:
Yes.

[00:07:33] Speaker 03:
Let me ask the

[00:07:36] Speaker 03:
In the, I believe as a supplemental brief, Ms.

[00:07:38] Speaker 03:
Reynolds says that the San Francisco Administrative Code 2.80 does give Mr. Preston the responsibility to inform the citizenry about the goings on of local government.

[00:07:55] Speaker 03:
So why isn't that authorization to speak on behalf of the city and county?

[00:08:01] Speaker 01:
That's a section that designates newspapers to official reporters for the city.

[00:08:07] Speaker 01:
Nothing in that section designates Supervisor Preston with the authority to speak for the city.

[00:08:13] Speaker 01:
He's a legislator.

[00:08:14] Speaker 01:
He's an elected official.

[00:08:15] Speaker 01:
So under this court's decision on Bosquist, he speaks for his constituents.

[00:08:23] Speaker 01:
He speaks for himself as an elected official and not as a spokesperson for the city.

[00:08:29] Speaker 01:
uh, spouting the city's point of view.

[00:08:32] Speaker 03:
But the section doesn't say it has to be newspaper.

[00:08:35] Speaker 03:
It says to best accomplish this, the city and county should, but it doesn't say it doesn't prohibit other forms of media.

[00:08:47] Speaker 03:
It just says, well, the probably the best method is newspaper.

[00:08:50] Speaker 01:
It certainly doesn't prohibit Preston from communicating with the public.

[00:08:58] Speaker 01:
But I think the important thing is that he is not authorized to speak on the city's behalf.

[00:09:06] Speaker 01:
I think we see that in Linkey.

[00:09:09] Speaker 01:
The court there said it's not enough just to say that someone is authorized to speak to the public.

[00:09:15] Speaker 01:
They have to be authorized to speak on the city's behalf about a matter that the city has authorized them to speak.

[00:09:29] Speaker 01:
If there are no further questions, I'll save them any time for rebuttal.

[00:09:34] Speaker 03:
Yeah, I have one more question.

[00:09:36] Speaker 03:
Miss Reynolds argues that if she can show that there was state action in any one Twitter post, and that's a question of fact that we should affirm, what's your response to that?

[00:09:52] Speaker 01:
So she would have to show that during the time period where she was blocked,

[00:09:58] Speaker 01:
that there is a Twitter post that satisfies the Linkey standard.

[00:10:03] Speaker 01:
And then I would say even so, the court should not affirm because the Linkey standard was not clearly established during the time period of that post.

[00:10:12] Speaker 01:
And again, we're speaking in hypotheticals because Reynolds council has not identified a post during that time period that does satisfy Linkey.

[00:10:20] Speaker 01:
But even if she did, I think reversal is still appropriate because the law was not clearly established

[00:10:31] Speaker 03:
All right, then you have five minutes and 22 seconds for rebuttal.

[00:10:35] Speaker 03:
Let's hear from Ms.

[00:10:36] Speaker 03:
Reynolds' counsel.

[00:10:38] Speaker 03:
Thank you.

[00:10:42] Speaker 04:
Good morning, and may it please the court, Jesse Franklin Murdoch for the plaintiff, Susan Dyer Reynolds.

[00:10:49] Speaker 04:
This case is about a government official's unconstitutional exclusion of a journalist from a designated public forum he chose to create on the internet because he didn't like her and he didn't like her political views.

[00:11:02] Speaker 04:
The court should affirm the district court's denial of Supervisor Preston's motion to dismiss because his decision to continue excluding Reynolds from the designated public forum on Twitter after this court decided Garnier violated clearly established law.

[00:11:19] Speaker 00:
But Garnier has now been vacated.

[00:11:23] Speaker 00:
So under Kim Retta, I don't see how that could be clearly established law.

[00:11:29] Speaker 00:
So I mean, I guess the question is, what is the law?

[00:11:33] Speaker 00:
What was clearly established at the time of Preston's conduct?

[00:11:38] Speaker 04:
Certainly, Your Honor.

[00:11:39] Speaker 04:
So the clearly established right, and even under the case that Preston cites in the supplemental brief about applying, looking to whether the right was clearly established at the time of the challenge conduct, that right would be access to a designated public forum.

[00:11:55] Speaker 04:
That did not change from

[00:11:57] Speaker 04:
Before Garnier to Garnier to Linkey, what changed was how state action applies in the context of social media.

[00:12:07] Speaker 04:
But the right to access a designated public forum and the fact that a designated public forum can exist through a public official social media account, that has not changed.

[00:12:17] Speaker 02:
Let me ask you this question in a slightly different way, which is, are you relying on or what are you relying on

[00:12:25] Speaker 02:
beyond Garnier.

[00:12:26] Speaker 02:
In my view, as Judge Thomas just articulated, the case is not applicable for purposes of establishing the clearly established prong because it's been vacated.

[00:12:37] Speaker 02:
So other than Garnier, are you relying on any other case for your position that the right was clearly established?

[00:12:47] Speaker 04:
So Your Honor, I would answer that by saying that Garnier did not invent the notion of designated public forums.

[00:12:54] Speaker 02:
But what other case?

[00:12:56] Speaker 02:
So what other authority are you relying on?

[00:12:59] Speaker 04:
Specifically for the right to access a designated public forum on social media, that would be Garnier, Your Honor.

[00:13:06] Speaker 02:
And you have no other case that you can cite to us for that proposition?

[00:13:12] Speaker 04:
Before the Supreme, sorry, before the Ninth Circuit decided Garnier, Your Honor,

[00:13:17] Speaker 04:
We agree with it.

[00:13:18] Speaker 04:
We did not challenge the argument below that up until that point, the right had not been clearly established.

[00:13:25] Speaker 04:
The right was clearly established at the time of the challenge conduct.

[00:13:28] Speaker 04:
And the right continues to exist today, even though the standard for how it's satisfied is different.

[00:13:34] Speaker 00:
But the problem is that Garnier, that case is, it's vacated.

[00:13:39] Speaker 00:
And so it cannot, it can't be relied upon

[00:13:44] Speaker 00:
for the notion that the law was clearly established at the time of the conduct in question in this case.

[00:13:53] Speaker 00:
So if you don't have anything besides Garnier, I just can't see how you prevail.

[00:14:01] Speaker 04:
Certainly, Your Honor.

[00:14:02] Speaker 04:
And I would submit that the way that courts view

[00:14:06] Speaker 04:
qualified immunity when the law changes contemplates that you would apply different standards to the clearly established analysis versus whether there was a violation of the constitutional right.

[00:14:18] Speaker 04:
If it was merely the case that a change in the law meant that it couldn't have been clearly established at the time of the violation, there would be no need to conduct that splitting analysis that the case that Preston site Sandoval contemplates.

[00:14:31] Speaker 04:
Otherwise,

[00:14:33] Speaker 04:
the mere change in law would show that you can't meet fairly established.

[00:14:37] Speaker 04:
But the fact that you apply both of those tests indicates that there is that splitting that takes place.

[00:14:43] Speaker 04:
You look to whether

[00:14:44] Speaker 04:
at the time of the challenge conduct was the right that we are asserting, which was the First Amendment violation that took place when there was an unconstitutional exclusion from the designated public forum.

[00:14:55] Speaker 04:
That right was clearly established in that relevant five-month time period that we're talking about.

[00:15:01] Speaker 04:
And even under today's standard, Linkey, there's still a constitutional violation.

[00:15:05] Speaker 00:
It sounds like what you're arguing is that we should ignore the fact that Darnay has been vacated.

[00:15:11] Speaker 00:
Is that what you're

[00:15:13] Speaker 00:
suggest.

[00:15:13] Speaker 00:
I want to make sure I understand.

[00:15:15] Speaker 04:
Not at all, Your Honor.

[00:15:16] Speaker 04:
I recognize that going forward, once we clear this qualified immunity hurdle, Garnier is not relevant for its articulation of state action.

[00:15:25] Speaker 04:
That is now Linkey.

[00:15:26] Speaker 04:
We're stuck with Linkey for that.

[00:15:28] Speaker 00:
Not going forward.

[00:15:29] Speaker 00:
I mean, I think the notion under Camretta, and tell me if you have a different reading of that decision, but

[00:15:37] Speaker 00:
I think the notion under Kim Retta is that we cannot look back now to 2023 or whatever date or 2020 and say that because Garnier was in existence then, that that clearly established the law then.

[00:15:53] Speaker 00:
I think that the case has been vacated.

[00:15:56] Speaker 00:
I mean, it's wiped clean as if that decision never existed for our purposes.

[00:16:04] Speaker 00:
Am I reading Kim Retta wrong?

[00:16:07] Speaker 04:
So, Your Honor, I would go back to Sandoval, which was quoted in Preston's brief, and it says, the current law to determine if a constitutional violation took place under the first prong.

[00:16:19] Speaker 04:
So, direct, we agree, we apply limit key for the first prong.

[00:16:23] Speaker 04:
And then it's been, and then the second prong, it says, an objective examination of whether established case law would make clear to every reasonable official

[00:16:32] Speaker 04:
that the defendant's conduct was unlawful in the situation he confronted.

[00:16:36] Speaker 04:
So in the situation that he confronted, which was whether to keep Reynolds blocked from July 2022 to January 2023, at that time, the law was clearly established that the exclusion of Preston at that time did violate clearly established law.

[00:16:53] Speaker 04:
So under that splitting, we meet both prongs.

[00:16:56] Speaker 03:
One point is that the Supreme Court said that the approach the Ninth Circuit took in Carnegie was effectively wrong.

[00:17:05] Speaker 03:
It's inconsistent with Linkey.

[00:17:07] Speaker 03:
So how can we continue to apply that standard in determining whether state action exists or not here?

[00:17:14] Speaker 04:
Certainly, Your Honor.

[00:17:16] Speaker 04:
So in Linkey, they didn't get as far as whether it's a designated public forum or what the standard is for when you can block someone.

[00:17:24] Speaker 04:
All the Linkey court reached was, was there state action?

[00:17:28] Speaker 04:
And so everything that comes after that in the analysis

[00:17:32] Speaker 04:
is unaffected by Linkey.

[00:17:34] Speaker 04:
It's still the case that once you are engaging in state action on social media, you can't block someone without meeting the same test that you would meet to exclude any member of the public from any designated public forum.

[00:17:45] Speaker 03:
Well, okay, then let's look at Garnier.

[00:17:47] Speaker 03:
This case seems very different to me than Garnier.

[00:17:49] Speaker 03:
Here you have an explicit disclaimer.

[00:17:51] Speaker 03:
In Garnier, one of the trustees said, this is my official PoE Unified School District webpage.

[00:17:58] Speaker 03:
They had their official email address.

[00:18:00] Speaker 03:
They were carrying out statutory duties of soliciting constituent input, having constituents fill out surveys on the website.

[00:18:11] Speaker 03:
As opposed to this, which very much looks like a personal self-promotional

[00:18:16] Speaker 03:
campaign-related site that is not carrying out official duties.

[00:18:23] Speaker 03:
So even under Garnier, which I agree with my colleagues here, we can't follow, but even if it did apply here, it seems highly distinguishable and wouldn't support your case.

[00:18:38] Speaker 04:
So Your Honor, I would say in response to that, that the facts are different, but the outcome should be the same.

[00:18:44] Speaker 04:
So taking the facts Your Honor mentioned one at a time, there is the disclaimer here.

[00:18:49] Speaker 04:
Two points on that.

[00:18:50] Speaker 04:
First, even under Linkey, the disclaimer just gets you a presumption.

[00:18:54] Speaker 04:
It doesn't, it's not dispositive.

[00:18:56] Speaker 04:
And since we're here on a 12b6,

[00:18:58] Speaker 04:
I don't think it would be appropriate to weigh the facts that we've mustered with the presumption that the label gets.

[00:19:04] Speaker 04:
Second, I wouldn't concede that that label gets that presumption.

[00:19:08] Speaker 04:
The type of labels that were discussed in Linkey were things like personal account, something to clarify that you're not speaking as a government official.

[00:19:18] Speaker 04:
Now, the disclaimer here is opinions my own.

[00:19:21] Speaker 04:
I don't think that gets us to the same place because it follows that government officials do voice their own opinions, but that doesn't mean they're not voicing their opinions as government officials.

[00:19:30] Speaker 03:
But you would concede that a lot of the things that were in the post to which your client objects are all things that Mr. Preston has no power over.

[00:19:41] Speaker 03:
Medicare, canceling student debt, abolishing prisons, those are not within his bailiwick.

[00:19:49] Speaker 04:
Your honor, I don't think that the content of the specific post that led to this dispute matters, because under Linkey, what the court directed was that if it's a post by post blocking, like on Facebook, you can say, no comments on this post, then you look to the content of that post.

[00:20:06] Speaker 04:
But if it's an account-wide blocking, which is how it works on Twitter and how it actually took place here, Reynolds was blocked from the entire account.

[00:20:16] Speaker 04:
If there is state action going on anywhere in the account during the time of the violation, that's all we need to show.

[00:20:23] Speaker 04:
And I would say that probably the best example that we can come forward with is on page 123 of the excerpts of record, where

[00:20:31] Speaker 04:
We have an example of official action that the San Francisco Board of Supervisors took and Preston

[00:20:38] Speaker 04:
This wasn't during a campaign.

[00:20:39] Speaker 04:
It was about exactly at the midpoint of his term in office, put out an official statement on his official letterhead saying, here's my comment on what the board just did.

[00:20:48] Speaker 04:
The board endorsed the San Francisco Police Department's equipment policy.

[00:20:53] Speaker 04:
Preston thought this was a terrible decision.

[00:20:55] Speaker 04:
He communicated with his constituents that I think that this is abhorrent what the board has done, certainly something within the board's bailiwick.

[00:21:02] Speaker 04:
And Preston poked in his role as a member of this 11 person body

[00:21:09] Speaker 04:
communicated with his constituents what the board did and why he found it objectionable.

[00:21:16] Speaker 03:
If we disagree with you that the San Francisco Ministry of Code section 2.80 gives Mr. Preston the authority to speak on behalf of San Francisco, then how can you meet the first prong of the Linkey Test?

[00:21:34] Speaker 04:
Certainly, Your Honor.

[00:21:35] Speaker 04:
So I would say that Section 280 is not necessary for our argument.

[00:21:40] Speaker 04:
It merely backs it up.

[00:21:41] Speaker 04:
So in Linkey, Justice Barrett was clear that it's not just express authority, statutory authority that you look to.

[00:21:50] Speaker 04:
You can look to customs and usages and that type of authority as well.

[00:21:54] Speaker 04:
And in Preston's supplemental brief, there wasn't discussion of that type of authority.

[00:22:02] Speaker 04:
So our argument is that as a legislator, as a member of this 11-person body governing a city and county, that he had the natural customary authority to engage with his constituents.

[00:22:14] Speaker 04:
I would point the court to the Fifth Circuit's opinion in Williams v. United States, which was a Westfall Act case in which the issue before the court was, if a congressman goes on TV and allegedly engages in defamation, was that within the course and scope of his duties?

[00:22:30] Speaker 04:
And in order to decide that question, one of the considerations was, was that act going on TV and speaking about matters before Congress within the general authority, that was the word from the case, general authority given to him.

[00:22:43] Speaker 04:
The court concluded that he was acting within the course and scope of his duties because informing constituents and the public is a part of being a congressman.

[00:22:52] Speaker 04:
Is that a pre-linky decision?

[00:22:54] Speaker 03:
Is that a pre-linky decision?

[00:22:57] Speaker 04:
It is a pre-Linkey decision.

[00:22:58] Speaker 03:
Yeah.

[00:22:59] Speaker 03:
I mean, the example that Linkey gives on state action is you have to have a post that invokes statutory authority, that it has immediate legal effect, that information is not available anywhere else.

[00:23:11] Speaker 03:
So you're not just giving your public views, your views on matters of public concern.

[00:23:17] Speaker 03:
You're not just repeating things that are otherwise publicly available.

[00:23:22] Speaker 03:
I don't see how that Fifth Circuit pre-Linkey case should be determinative here.

[00:23:27] Speaker 04:
So, Your Honor, I would say that that case is one of many cases that point to the general fact, including Supreme Court cases such as Bonn v Floyd, that point to the fact that legislators have the duty, and we would submit therefore the authority, to speak to the public about matters within public concern.

[00:23:47] Speaker 04:
And I think that translating

[00:23:49] Speaker 04:
duty or authority in this very narrow way would lead us astray.

[00:23:53] Speaker 04:
For example, if Supervisor Preston were to go up to a local business in his district and say, you better take down that sign for my opponent or else I'm going to make sure that the Board of Supervisors ruins your business.

[00:24:06] Speaker 04:
I don't think there's any notion that that would be acceptable or constitutional conduct on his part.

[00:24:11] Speaker 04:
So that implies that he's able to speak

[00:24:14] Speaker 04:
just him not as through voting or proposing measures, but he's able to engage in speech that constitutes state action because he has this type of customary authority.

[00:24:26] Speaker 04:
We cited a number of instances in our brief on pages 13 to 14 of our supplemental brief in which Preston exercised this type of customary authority that it's natural for someone on an 11 person body to hold.

[00:24:39] Speaker 04:
For example, he

[00:24:40] Speaker 04:
personally negotiated with Safeway over its anticipated closure of a grocery store in his district.

[00:24:48] Speaker 04:
That goes beyond that narrow proposing ordinances and resolutions and voting on them that my friend on the other side said is the only authority he has.

[00:24:58] Speaker 04:
And if he has this type of authority to engage in state action through his speech outside of

[00:25:05] Speaker 04:
the board meetings in these avenues, it follows that he can also exercise that type of authority on social media.

[00:25:13] Speaker 04:
And that's why we cited his quote to the San Francisco Chronicle when following his spat with Elon Musk, he left Twitter.

[00:25:19] Speaker 04:
He said his constituents can follow him on these other platforms, implying that he uses social media as a way to discharge his customary duty to engage with members of the public and to exercise the authority that it's

[00:25:33] Speaker 04:
would be expected that members of an 11 person governing board have.

[00:25:42] Speaker 04:
And I see that I'm just about out of time, so I will submit there unless the court has any further questions.

[00:25:49] Speaker 03:
Thank you very much.

[00:25:50] Speaker 01:
Thank you, Your Honor.

[00:25:55] Speaker 01:
Thank you.

[00:25:56] Speaker 01:
I would just like to highlight that the first prong of the Linkey test is not about whether

[00:26:02] Speaker 01:
Preston can speak to constituents.

[00:26:05] Speaker 01:
Of course he can.

[00:26:06] Speaker 01:
The question is whether he can speak on the city's behalf.

[00:26:12] Speaker 01:
And that's the part that we're missing here.

[00:26:14] Speaker 01:
He is not authorized by a city law to speak on the city's behalf with respect to any of the matters of the post that issue.

[00:26:22] Speaker 01:
And just addressing the site at 124.

[00:26:27] Speaker 01:
In that example, he was tweeting something about something that happened earlier.

[00:26:32] Speaker 01:
Linkey tells us that that is not an example of state action.

[00:26:37] Speaker 01:
And finally, I would just like to remind the court that qualified immunity is designed to give public officials breathing room when there's open legal questions.

[00:26:46] Speaker 01:
It applies unless the person is plainly incompetent or knowingly violated the law.

[00:26:52] Speaker 01:
Our discussion today and the confusion involving the legal standard and the ever shifting landscape

[00:26:58] Speaker 01:
I think just demonstrates that Preston is entitled to qualified immunity because the law has not been clearly established.

[00:27:05] Speaker 01:
It's been a moving target over the course of the relevant time period.

[00:27:11] Speaker 01:
And if there are no further questions, then I will submit.

[00:27:16] Speaker 03:
Any further questions from the panel?

[00:27:18] Speaker 01:
Thank you.

[00:27:20] Speaker 03:
Judge Desai?

[00:27:21] Speaker 02:
No.

[00:27:21] Speaker 02:
No, thank you.

[00:27:22] Speaker 03:
All right.

[00:27:22] Speaker 03:
Well, thank you very much.

[00:27:23] Speaker 03:
And thank you to both counsel for your very helpful argument today.

[00:27:28] Speaker 03:
Thank you.

[00:27:29] Speaker 03:
Today's session is adjourned.

[00:27:30] Speaker 03:
Thank you all.

[00:27:31] Speaker 04:
Thank you.