[00:00:00] Speaker 03:
Thank you, Your Honor. Matthew Hoffman for Plaintiff Roderick Tice, who is here today. I would like to reserve five minutes for rebuttal, please. Very well. May it please the court. I would like to discuss two main points today. First, Rod did not speak for the government. As the Supreme Court and Kennedy made clear, official duty speech is speech at the behest of the employer. Rod's personal messages in his office are just that, personal. Intermountain allows employees the freedom to decorate their offices with all manner of personal speech. It doesn't direct, restrict, or forbid personal messages in employee offices.

[00:00:33] Speaker 03:
So naturally, employees display all manner of photos, books, posters, and even ideological speech. But Kennedy invalidates the district court's holding that personal speech somehow morphs into the government's speech just because students may see it.

[00:00:46] Speaker 03:
Second, Intermountain has no evidence to meet its burden to show disruption to the services it provides to the public. Rod displayed Johnny the Walrus for two years. There's no evidence of missed appointments, students asking for a different social worker, or Rod being unable to do his job.

[00:01:04] Speaker 03:
No student or parent ever complained about it. Indeed, Intermountain didn't even know about Johnny the Walrus until Rod mentioned it during an interview. Only a single offended teacher criticized the religious viewpoints of he is he and she is she, and later coordinated a setup to have Rod further disciplined. Neither is there any forecast of reasonable disruption. The innocuous covers of Rod's books express a truthful, positive message. The books conveyed the same message taught in Legrand's science and English classes. So it makes sense that none of the four students that read he is he and she is she were uncomfortable with them.

[00:01:37] Speaker 03:
This court should reverse with instructions to enter a preliminary injunction favoring Rod.

[00:01:42] Speaker 03:
First, on the official duties point. Coach Kennedy's case controls here.

[00:01:48] Speaker 03:
In that case, both Kennedy and Rod in this case spoke within the school environment, they were still on duty. They spoke in front of students, yet they spoke at a time when other teachers, other employees were free to attend to all manner of personal tasks. In Coach Kennedy's case, they're free to send text messages, talk with family, check the sports score on their phone, or a variety of other personal things. In Rod's case, Intermount and establish that teachers and employees are free to decorate their office is with personal speech.

[00:02:20] Speaker 01:
So, counsel, let me ask you a few questions about that. So the 11th Circuit in the Wood case reads Kennedy more limited, I think, than you would read it. What is your take on that case?

[00:02:32] Speaker 01:
Is that because that was Wood wrongly decided in your view?

[00:02:35] Speaker 03:
I don't think Wood was necessarily wrongly decided. I think it does have some language about Kennedy, but Wood, if you look at it, it's in-class teacher speech in front of students. So there the teacher wanted to write pronouns on the board, wear the pin. So that is speech that's directly to students within the class. But here we have Intermountain displays off or allows employees to display the decorations as personal speech.

[00:02:59] Speaker 01:
Well, I think the issue here, though, is that, as I see it, is that viewpoint discrimination is allowed if it's government speech.

[00:03:09] Speaker 01:
And so then the question is, is this government speech or not under Garcetti and under the – I forget the name of the other case we have, which has like the factors you look at, another one of these factor tests. So your view, though, under Wood is that Wood is distinguishable from this case because why?

[00:03:26] Speaker 03:
Because it's in-class speech directly to students.

[00:03:29] Speaker 01:
Well, wasn't – I'm trying to see the difference here because this was in his job. His job was to meet with students to administer some examinations, if I understand it correctly.

[00:03:38] Speaker 03:
Correct.

[00:03:39] Speaker 01:
How is that different than being a teacher in a classroom in this situation?

[00:03:44] Speaker 03:
Because in that case, in the Wood case, the Florida law made it so that the teacher's official duties were not to include these things when she's in the classroom. But in this case, Intermountain's policy allows the decorations as personal speech. So that's like and it's a personal form, kind of like Coach Kennedy praying at midfield. So even though that speech is in front of students, Coach Kennedy spoke in front of students, just because it's there in his office doesn't immediately transform into government speech.

[00:04:14] Speaker 03:
Because, Your Honor, you talked about the factor test, but what it ultimately boils down to in Kennedy is speech at the best of the employer.

[00:04:21] Speaker 04:
In Kennedy, the court, in plain of itself, Kennedy agreed not to engage in prayer meetings in the locker room, for example, during, you know, before the game, right? Because even though the locker room was in the scope of his employment duties. So in this case, why is the office, at least during the period in which Mr. Tice is counseling students or testing them, right? Is engaged in the scope of his employment.

[00:04:52] Speaker 04:
And that, my understanding is that was the restriction that was, uh, not enjoined here, right? Was that the requirement to just remove the books during that period of time when he was actively engaged in the scope of his duties?

[00:05:09] Speaker 03:
Well, I'd say first, Your Honor, I don't think... That's what the district court's injunction went to just when it was in front of students, but Intermountain's policy was that he had to remove them at all times because even to co-workers, they could appear to be a bias.

[00:05:21] Speaker 04:
Right, but you're appealing that part of it.

[00:05:23] Speaker 03:
Yeah, that's correct. So... Because Coach Kennedy, I think the distinguish you make between Kennedy shows how it applies in this case. Because in Coach Kennedy's case, when he's talking to the students as part of the post-game talk, that is part of his official duties. That's what the employer defines. It's not a reasonable observer test based on what people might interpret. I think that's what Kennedy makes clear. And Intermountain here defines the office declarations in defendant Van Nuys' declaration as to be personal speech, a speech that's not part of the employment responsibilities.

[00:05:55] Speaker 03:
I think you could think of it this way. If Rod never posted the books up, he didn't have the duty to put them up. He didn't have to decorate the office with specific things, so that really can't be part of his employment duties. Now, there can be other ways that you would get to speech that might be disruptive. I think that comes in under Pickering. But after Kennedy, the employment duties inquiry defines the private speech.

[00:06:18] Speaker 04:
I recall, though, and I can't remember the form, but that Mr. Tice said that The reason why he displayed the books was to make the students feel more comfortable.

[00:06:28] Speaker 03:
I think so. And that's what Intermountain allows for office decorations. That doesn't turn it into the employment duties that he wants to make his office more kid-friendly and express a positive message. Because, again, Intermountain never made that part of his employment duties. And they could.

[00:06:44] Speaker 03:
This doesn't have to be a big issue because they could redefine what is allowed in the office. It could be only class speech. There could be no decorations allowed at all. That's their authority as an employer, but that's not what they did in this case because when they allow all the employees to have the personal speech on their office, it can't just become official duty speech after the fact when students might see it. I think that's what, you know, that repeats the kind of the Johnson error that the Supreme Court reversed.

[00:07:12] Speaker 04:
He's speaking to the students during their appointments. Is he acting within the scope of his official duties?

[00:07:21] Speaker 03:
When he's giving them the test, yeah. Yes, I agree.

[00:07:24] Speaker 04:
When they come in, is every conversation he has with that student part of his job duties when they're coming into his office to be tested? Is he acting within the scope of his employment?

[00:07:36] Speaker 03:
I don't think every conversation, no. I think, you know, schools operate with all manners of personal speech. You know, teachers or social workers talk about the sports game last night. I don't think that that personal speech is official duty speech. And that's what Kennedy says, not all speech in the office environment is official duty speech. You can't have this accessible.

[00:07:55] Speaker 04:
But I'm asking that student comes in for an appointment.

[00:07:59] Speaker 04:
From the time they come in for an appointment to the time they leave, is he acting within the scope of his employment?

[00:08:06] Speaker 03:
I think that's part of his duties, yes.

[00:08:09] Speaker 03:
But again, the books were defined by Intermountain as not part of his official duties. So even though they sat on the bookshelf there, that is not him speaking on behalf of Intermountain. That's the allowed personal decorations.

[00:08:23] Speaker 04:
I mean, a little part of the difficulty here is, right, part of your claim rests on that being speech, right, communication to the students, not just, you know, paint color, right? And so it's communication that's the definition of speech. And at that time, in the scope of that office visit, that is communication. In fact, it was intended communication to the students. Is that right?

[00:08:49] Speaker 03:
Yeah, they express a message. I agree. I agree. But I think you can't treat that everything he says within the office environment is official duty speech because Intermountain didn't define it as part of his duties. And students would be exposed to, I think, all manner of these messages, you know, the pro-union or the pro-LGBTQ speech, which Intermountain allowed. But that, again, did not become part of their official duties just because students might see it. It's not, you know, in the Fifth Circuit case, Barber v. Rounds, it's not the visibility-based test.

[00:09:20] Speaker 03:
It's not just the fact that it was speech in the office environment. Because, you know, the record shows he's not using these books as part of official duties. They do communicate a message. They are on the bookshelf behind him or on his desk. But that's allowed under Intermountain's policy as official duty decorations. I think the fact that Intermountain can come in here after the fact and censor that speech is a very broad rule that would allow a wide swath of public employee speech.

[00:09:50] Speaker 03:
In another school district, it could be the rainbow ally flag sticker that could be stopped as official duty speech just because it's on the teacher's desk. And schools can have policies about these, but the policy here established that it was personal speech.

[00:10:04] Speaker 01:
Let me ask you this because I anticipate an argument they may make, so I want to give you a chance to hit it now.

[00:10:09] Speaker 01:
let's say a teacher did something completely off the rails, and I'm not saying that's what happened here, but some Jeffrey Epstein type, they want to talk to kids about that. What could the school do to prevent them from doing that under your theory?

[00:10:22] Speaker 03:
Well, if it's during curricular time when the math teacher says, when the math teacher's duty is to teach math, then you say you can't talk about Epstein. That's part of your official duties to teach math. That's not what this is about. So I think defining the scope of duties, and as we talked about before, Intermountain could have another policy where they didn't allow office decorations or limit it to certain things. Right.

[00:10:45] Speaker 01:
I mean, just in the fact of this case, let's say a student goes in and let's say Mr. Tice is subbed out. He gets to take vacation. So he's on vacation. So they have the sub who fills in for Mr. Tice. And that person puts up, you know, books about Jeffrey Epstein. And he puts them in the same places that the He Is He and She Is She books are put up. Could the school stop him from doing that?

[00:11:07] Speaker 03:
I think that goes – well, they could do it ex ante with the policy, and they could do it after the fact or based on reasonable forecasts of disruption under Pickering.

[00:11:18] Speaker 01:
So, yeah, I think the school's not – So it would be a – you think that would be a Pickering analysis as to whether they could pull the books there, not a this is government speech or not government speech?

[00:11:27] Speaker 03:
Under the facts of this case, yes, because Intermountain has defined declarations as personal speech. They could have a different policy. But here, once you're in that land, you can't, you know, after the fact, stop these books from going up when other teachers have other ideological speech that's allowed.

[00:11:42] Speaker 01:
But your view would be, though, under Pickering, then you could analyze whether putting the Jeffrey Epstein books would be so disruptive that they could be pulled. So your view is the school could still pull them just under a different.

[00:11:55] Speaker 00:
line of reasoning yeah absolutely i mean this the schools are not powerless in these situations i think they have a lot of control defining it on the front end or are you going to the reasonable forecast of disruption and and they can regulate that in the office environment so on that on that's where the heckler's veto thing comes so i understand this is what i anticipated your argument was that you can you can do it on the front end by by having a very dystopian type thing where nobody gets to put up decorations right so that that is one way that if you don't I mean, literally, if you don't like certain viewpoints, you can just say this is a no-speech zone, no private speech zone.

[00:12:29] Speaker 00:
So they could do that on the front end. And you agree with that, right?

[00:12:32] Speaker 03:
They could do that. I mean, you can have no policy.

[00:12:34] Speaker 00:
They didn't do that, but your argument is they didn't do that. No private speech allowed. You can't wear T-shirts that say Def Leppard or whatever, right? And then on the back end, if somebody puts up a Nazi symbol, they decide they're going to put up a Nazi symbol, in theory they could try to do something under Pickering balancing. The question, I guess, is, And I think that's right, and I think that's what our case law says, but on the back end, what do you do with a heckler's veto and that? Because, you know, at the end, on the facts here, it does seem like basically they decided to make an example out of them after the first decision, and so they brought in a, and that makes sense that that's going to happen in today's culture.

[00:13:15] Speaker 00:
So what do you do? What do we do, I guess? What does the court do about how do we distinguish a heckler's veto from, you know, this is going to, this is going to be super disruptive. Because what it does is it kind of incentivizes people to be disruptive, right? That's the problem with the pickering.

[00:13:32] Speaker 03:
What do we do about it? Sure. So I think in Dodge, the mere disagreement that comes with a controversial viewpoint cannot be disruption.

[00:13:39] Speaker 00:
But we, I mean, this is Portland, right? So, like, they've learned how to make disagreement into trying to burn down a courthouse. So, like, if you, like, but that's the problem, right? Like, they just keep turning up the volume and adding violence and everything until, and so what do, What do we – I understand – I'm just trying to figure out – and pickering is pickering. We have this pickering balancing.

[00:14:01] Speaker 00:
I guess your argument would be we're not anywhere near close to that. If people are lighting a school on fire in response to his books, then we'll figure out what to do about it at that point. But they weren't doing that yet.

[00:14:12] Speaker 03:
No, I think – I mean, there's no evidence of any disruption. There's no evidence of impacted services. And the complaint, it's clear in this case, was just based on the religious viewpoint. So I think we're nowhere near that. You know, Pickering, as Your Honor pointed out, is a values-based balancing test. So it's hard to kind of weed out the viewpoint discrimination from there. In other contexts, it's clear that viewpoint discrimination is unconstitutional. But here, there can be some judgments that account for that because the employer's responsibility is to the public. But, you know, unlike in Damiano, for instance, there's no credible allegations of actual policy violations here.

[00:14:47] Speaker 03:
It really just is targeting the views.

[00:14:49] Speaker 04:
Right, but in Damiano, we explained that it is a balancing test, right? And there's a question of how heavy the First Amendment interests are. And in that case, they were high because the employees were talking about a public matter outside, largely outside of the school context. It was a website about state policy.

[00:15:13] Speaker 04:
Here we have almost the polar opposite where it's a, in-school, office, and at least on this preliminary injunction, we're talking about during the time that an employee is meeting with students. So that is pretty much the opposite of what was presented in Damiano.

[00:15:34] Speaker 03:
I see my time is running low, but I'll say, Judge Chung, I don't think it's completely the opposite because content is king in the inquiry here on balancing, and so it's similar content to what's in Damiano.

[00:15:46] Speaker 04:
Well, that was a comment about state policy or policy or school district policy. And here, is there policy or was there a comment on school policy being taken?

[00:16:00] Speaker 03:
Nothing I'm aware of, but it's religious speech. It's speech on a matter of public debate. You know, the binary view of gender is intermountain said. So I think it's an important topic. The content is king. It did occur in the office environment, which I think kind of is the safety valve that shows that schools have more authority in the school environment. But that's not dispositive. I mean, there's all sorts of just intro workplace comments like Rankin versus McPherson. This is a Supreme Court case where office speech is still protected speech. It still expresses a matter of public concern, intermounted and seated below.

[00:16:33] Speaker 03:
So I think in the Pickering balancing, it still weighs high for the content and the circumstances don't detract from that. And I just think that Intermountain's ledger is so absent of evidence, which is their burden to show here, they just have the complaint from the teacher, no disruption to the actual services, that Rod still has to win under the pickering balancing.

[00:16:53] Speaker 01:
Do you want to reserve? I would reserve. Thank you. And, Ms. Dodds, we give them five minutes.

[00:17:11] Speaker 02:
Thank you. May it please the court and counsel. Blake Fry for the defendants and appellees.

[00:17:16] Speaker 02:
There are some preliminary issues here before getting to the merits, including issues of mootness and jurisdiction. But since we've spent most of the time talking about the merits of the order, I'll address that first.

[00:17:29] Speaker 02:
The preliminary injunction motion asked for an order that would allow the plaintiff to continue displaying these books in his office while students were present. And the court denied that motion for a pretty discreet reason.

[00:17:42] Speaker 02:
As we've discussed, speech claims by public employees are resolved by pickering, and pickering is a sequential test.

[00:17:49] Speaker 02:
The first part of that test, the plaintiff has the burden to show that his speech was offered in his capacity as a private citizen and not as an employee, and that it was on a matter of public concern. And if the plaintiff fails to meet that burden, either one of those, then the test ends and the inquiry ends. And the speech can be restricted because if the speech, for example, is...

[00:18:10] Speaker 02:
spoken in the capacity of the plaintiff's capacity as a public employee, then it's essentially the government's speech, and the government can control its own message. And the court here found that the plaintiff displayed the books in his capacity as an employee, and for that reason that he didn't have a likelihood of success on the merits. The standard of review is abuse of discretion, and the court's conclusions of law are reviewed de novo as evidence, as the law is, not as it should be or it might be in the future, and the findings of fact are reviewed for clear error.

[00:18:45] Speaker 02:
So if the court got the law right, the findings, and in this case the finding that the plaintiff was offering these books in his capacity as an employee, can't be the basis of reversal unless that finding was clearly erroneous.

[00:19:02] Speaker 02:
So the district court found that the plaintiff was acting in his capacity as a public employee largely by relying on this Court's previous decisions in Johnson v. Poway School District, and as that was reiterated somewhat in Dodge v. Evergreen School District. So Johnson v. Poway School District comes from a very similar scenario.

[00:19:24] Speaker 00:
And Johnson and Evergreen both make the same point that when a... Can I ask you some... So, you know, we've got the first question is, is it public concern? And as I recall...

[00:19:38] Speaker 00:
you have some arguments as to why it's not a matter of public concern. Basically, it's such bad speech that it's not a matter of public concern, if I understand, if I understood your argument correctly. But it didn't seem like you really fought that too hard, especially before until.

[00:19:52] Speaker 00:
So do you, is it your position that the personal decorations, you know, the decorations that are in various people's offices are all government speech? In other words, if they put up and said, you know, if they had to put up a picture of Mount Hood, you know, because they thought it was beautiful, right, and they'd hiked up there or something, that those are all government speech, or is your position that some of those are private speech, but this one's government speech? So that's our first question, I guess.

[00:20:23] Speaker 02:
Well, I mean, it would vary on the – it would depend on the context.

[00:20:25] Speaker 00:
It would depend on – Okay, so the answer to my question sounds like it's that some can be private speech. So your position is not that every display is public speech in their offices, right?

[00:20:38] Speaker 02:
Not everything, but I also want to make the distinction.

[00:20:40] Speaker 00:
So what is the distinguishing characteristic? I think you're about to get to that. I think your distinguishing characteristic is if it's really important or like a really – but is it something – what makes it government speech in this context?

[00:20:50] Speaker 02:
In this case, it makes it not government speech, but it's speech offered in the plaintiff's capacity as an employee. And the basis for the district – But what is the distinction? Yeah. And so the basis for the district court's decision here was, first of all, he is expressly trying to express a message, and that message is – against transgender persons or whatever. So let's just start with that.

[00:21:13] Speaker 00:
Every time you're trying to express a message, that it becomes then public government speech, or is it only certain messages? So, like, if you had up your favorite band, you know, let's say it wasn't a controversial band, you're obviously trying to express a message that you like this band. Would you say that was public government speech, or would you say that was their private speech in a private capacity?

[00:21:36] Speaker 02:
It's not the message in and of itself. My point is that he's expressing a message. So, I mean, there are allegations that these are just declarations that don't express a message. Well, we're here on a speech.

[00:21:46] Speaker 00:
No, no, no, no, that's not their allegation. They definitely think this is imparting a message. They think it's a private message. So that's really important. That's really important because they're not disputing. In fact, they never get past the first step if it's not expressing any message because it's not an issue of, I don't know how it would be an issue of public concern. So I don't think they're saying that it's not a message. I'm trying to figure out what you want us to make the distinction between when it becomes a private, assuming it's a message, when it's a private message, I like Mount Hood, I like Def Leppard, right, as opposed to a government message.

[00:22:20] Speaker 00:
What flips that switch?

[00:22:22] Speaker 02:
So this was addressed by this court in Johnson v. Poe, and this was also the basis for the district court's decision. So in this instance, right, these were books displayed in the plaintiff's office, his school office, during the school day, and he was displaying them to students who were in his office for evaluations. And so what this court said, I mean, that was the basis essentially for the district court's decision here.

[00:22:46] Speaker 00:
So it's the talking about them in addition? So if he never, if, you know, if a student, I'm just trying to figure out where your line is, because if he just had the books, which would essentially be like a picture of them, because nobody's getting in. So he's got a picture, Johnny the Walrus has got a picture on the front of it just saying they're, And the student says, what is that? And he says, can't talk about it.

[00:23:07] Speaker 00:
Is that a government message at that point?

[00:23:11] Speaker 02:
Well, how this court resolved this question in Johnson v. Poway School District was that one of the ways you asked, especially in the context of a public school, is whether an observer, like a student in this instance, would reasonably view this speech as being either sponsored or condoned at the very least by the school. And so it's, and the reason for this standard, which is particular to the public school.

[00:23:37] Speaker 00:
Okay, so their position is, as you're walking around the school, you see all kinds of offices and decorations up, and those decorations are all private speech, you know, Black Lives Matter, various messages, and those are private speech. And in fact, they get some of their power from the fact that they're private speech. Oh, this teacher believes in Black Lives Matter. If it was just the, Government's official message of Black Lives Matter, it wouldn't matter. It wouldn't it wouldn't bear as much weight. And so their position is, why is this different?

[00:24:08] Speaker 00:
And that's what I'm trying to figure out is what makes this different.

[00:24:10] Speaker 02:
I don't agree that all those are private speech.

[00:24:13] Speaker 00:
Do you think the Black Lives Matter signs are also perceived as government speech by and that and the signs that are pro LGBTQ, that those are, you know, the rainbow flags and stuff that people have up in their carols? That's all government speech in your view.

[00:24:27] Speaker 02:
Yeah, because in that case, the school district could decide that that is essentially a speech in those employees' capacity as an employee, and it could control that message because that speech is offered in those employees' capacity as an employee.

[00:24:47] Speaker 02:
And by the way, I do want to make the point that there's a lot of allegations about these other signs. The inner mountain...

[00:24:55] Speaker 02:
is not in control of these schools and not in control of these other employees.

[00:24:59] Speaker 00:
No, but it would matter to the reason you said the test is what a reasonable observer would think. So like if if, you know, if the kids are running around and, you know, it's got a pride flag and then underneath is a little plaque that says this is my personal views. This is not on behalf of the school district. Right. You know, so like to make it really clear. So the kids are like, OK, this is OK. That's a private speech lesson learned. And then they go into his office and they see this thing. And so it would influence their, it influences the context under which a reasonable observer would evaluate whether these books are government or private speech, the environment that these kids are running around in, correct?

[00:25:35] Speaker 02:
Well, one of the basis for the court's treatment in Poeway of this public school context of being special is that school employees have access to a young and captive audience. And that's why ultimately the test comes down to or one of the one of the basis the test comes down to in this context is would a student viewing the speech view it as being sponsored by the school or at least condoned by the school? And in the example of the other posters, the Black Lives Matter poster, the answer is still yes.

[00:26:12] Speaker 02:
A student would view that as positive. being promoted or sponsored by the school, and that still makes it employee speech.

[00:26:19] Speaker 00:
And yes, the school district... Certain circularity, because in some ways, if the student is a very bright student and reads the Ninth Circuit's case law and basically says, on really important issues, we only allow one side to speak. We don't allow the others. So because we control the speech, it therefore is government speech. You see what I'm saying? Because you say, well, on... On these hot-button social issues, you know, abortion, gender identity issues, LGBTQ, because we care so much about that, we will only allow one perspective to be spoken.

[00:26:52] Speaker 00:
And by saying we will only allow one perspective to be spoken, you're essentially turning it into government speech. It starts to feel a little bit like circularity there, like you're actually bootstrapping it into being government speech by saying, well, the government, we only allow one half of the debate.

[00:27:08] Speaker 02:
Well, here, first of all, I agree. There is no viewpoint restriction of speech here. We have an anti-discrimination policy that prevents any disfavored group from being impugned. That is a content-based restriction of speech. But even if it had been a viewpoint-based restriction of speech, that's what Pickering allows. So in fact, when it comes to employee speech, the government, and in this case a school, is allowed to pick and choose between which messages it wants to allow and which message it doesn't.

[00:27:39] Speaker 02:
Because, again, if the speech is employee speech, it does fall.

[00:27:42] Speaker 00:
I understand that under Pickering you'd be able to do the balancing. I guess before we ever get to Pickering, we have to decide the second question of whether this is public or whether it's private. And the district court, at least, seemed to pretty firmly put its flag in the fact that this was public speech, you know, relying on Poe Way, et cetera. So we would never even get to Pickering. And I'm still just trying to figure out, as I understand it, you're saying this is public speech because – I think, am I understanding correctly? Because I'm a little surprised to hear you say that the Black Lives Matter and all of the personal paraphernalia that is around the school on this record, that's all public speech.

[00:28:21] Speaker 00:
And I guess your position is it's all government speech. It's all government speech because that's what the school district allows and it doesn't allow... Well, let me jump... I'm sorry, I'm jumping because I want to make sure I understand you.

[00:28:36] Speaker 01:
My understanding was is that If it's during school hours and it's during instruction of children or working with children, then the district can decide what is being said and what's not being said. Yes. Correct. And that's the bottom line. Yes. And regardless of whether it's pro this or anti that, if it's government speech, the government gets to make that call. Yes. I mean, in your view and in the district court's view, as I understand it, that's the end of this case.

[00:29:05] Speaker 01:
Effectively.

[00:29:06] Speaker 04:
Well, under Pickering, that's the end of the... I would say, just for clarity, I think from the bench, what we're talking about is the Garcetti test.

[00:29:14] Speaker 02:
Correct.

[00:29:14] Speaker 04:
Right here, public employee versus personal private speech. It's sometimes talked about as step two of the Pickering test, but when we talk about Pickering, what we're really talking about is the step five balancing test, which we only reach if it's private employee speech.

[00:29:36] Speaker 04:
So just for terminology clarity so we're not talking across each other, what the question is right now, we're at step two or one. Actually, one.

[00:29:46] Speaker 01:
Two. Because first it's public versus private, then two is this.

[00:29:49] Speaker 04:
Whether this is private speech or public employee speech. Because if it is public employee speech, if it is speech reasonably attributed to the government, which I think is the test that you're arguing for, or within the scope of employment, whatever test we apply to determine whether this is public employee speech or private employee speech, we stop, and we never reach the Pickering balancing test. So I think what we're asking is, should we stop, and if so, why?

[00:30:19] Speaker 02:
Yes, because, yes, and that was, again, that was the basis for the district court's decision. However, whatever the terminology is, the district court stopped at the finding, essentially, that this was speech in the plaintiff's capacity as an employee.

[00:30:33] Speaker 00:
So can I ask you a follow-up question to Judge Owens? So as I understood what the plaintiffs were saying, they don't disagree, I don't think, with Judge Owens' view that in the public school system they could ban all private speech. They could do that. I think, you know, what I said, the dystopian, you know, you imagine all the cubicles that are all, there's nothing on them at all. As I understand their argument is, They could do that, but they have not done that. In fact, what they've done is they've allowed, you know, just like you could say you can't wear shirts with your favorite rock band on them if you're a teacher, right?

[00:31:06] Speaker 00:
Because kids started getting in the fights about their rock bands, you know, or whatever. So you just can't wear them at all. But my understanding is they're saying, no, you can actually wear your shirt with your rock band on it. And then they're just like, you can't wear that particular shirt.

[00:31:24] Speaker 00:
And the reason I use the rock band thing is you don't imagine that the school has a particular view about what rock band is better or not. And so, as I understand, they're not disagreeing that the school could ban it. It's a question that they're saying the school did not do that. They, in fact, allowed people to decorate, which I allow my clerks to do, et cetera. And once they allowed that, then you can't just say, well, it happened in a school setting and therefore it must be public employee speech.

[00:31:55] Speaker 00:
That's my understanding of their argument. What is your, that you have to decide whether or not, was this the sign, was this just a personal sign they put up or is this actually something in their duties?

[00:32:08] Speaker 02:
The district's, and I mean the ESD, the district's directive here was narrow. It was only that he couldn't display the books while students were in his office. And the students are only in his office for evaluations. And so that was the basis for the district court's opinion. The directive from the ESD was not that he couldn't have these books in general or that he couldn't have these books when teachers were in his office. The directive was limited to when students were in his office. And the only reason students are in his office are for evaluations. And so that makes this case basically the same as Johnson versus Poway School District because the The students are only in his office for evaluations.

[00:32:52] Speaker 02:
This is a school office. It's during the school day. And what the plaintiff is essentially arguing, and I think the court picked up on this, is that I could evaluate students in my office using my social worker hat, school social worker hat, and when that evaluation is over, I could switch hats and begin a discussion of these books with students. And in fact, what the plaintiff said during his interviews after this came up, in fact, on one occasion, he allowed a student to read the book and he discussed the book with the student.

[00:33:27] Speaker 00:
And that is why... So let's take away Johnny the Walrus and put in the photograph of Mount Hood. This teacher's got a photograph of Mount Hood. And he comes in, they do their test taking. And after the test is over, he says, what mountain is that? That's Mount Hood. I hiked up there last year with my wife. Well, really, and they start talking about, you know, this is common. Would you characterize the picture of Mount Hood and the subsequent discussion about Mount Hood, because the student asked about it, as public employee speech or as private speech?

[00:33:56] Speaker 02:
Well, I mean, the analogy is not perfect, because in that case, a picture doesn't express a message. We have something here that expressly expresses a message.

[00:34:08] Speaker 01:
In fact, it seems to me to kind of get to the end of it. It seems to me the answer is yes, they could tell him, look, when you're evaluating kids, evaluate the kid. Don't talk about Mount Hood. We're paying you to evaluate kids. We're not paying you to talk about geography. Seems to me for your position to win on the, we'll call it the Garcetti test, that that has to be the answer. The answer is we tell you what to say when you're dealing with kids. And whether, so we don't only talk about Mount Hood, you can't talk about Hood. Once you start saying, well, this Mount Hood is different than this, then I think that's really tough for your position.

[00:34:42] Speaker 01:
So it seems to me if it's going to be a government employee speech, it's kind of all or nothing. So I just want to make sure, because the district court seemed to treat it as all or nothing. It seems to me today we're kind of getting into something other than that, which to me I think is problematic for your position.

[00:34:57] Speaker 02:
Well, if it's employee speech, again, pickering allows viewpoint discrimination. And so I think what the court is getting at is can a school district, pick and choose what message it wants its employees to convey.

[00:35:10] Speaker 01:
The answer is clearly yes.

[00:35:11] Speaker 02:
The answer is yes.

[00:35:12] Speaker 01:
Because, for example, if the state of Oregon passed a version of Florida's law that banned pronouns on behalf of teachers, it seems to me the same analysis would apply, that the school district could – or I'll make it even easier. Let's say the state of Oregon passed a law saying teachers must have copies of he is he and she is he in classrooms. And a teacher wanted to bring a book that said the opposite of that. It seems to me, under your view of the case law, that school could force them to take that other book down because it would be inconsistent with the district's policy.

[00:35:47] Speaker 02:
Schools get to control the messages that they want to convey. That's correct, yes.

[00:35:50] Speaker 01:
And it seems to me that that's the core of your case. But once we start going down the road that I think is concerning Judge Van Dyke, then it gets really complicated really fast.

[00:36:01] Speaker 00:
I want to know if that is, is that the, Factually, is that what you think that the Intermountain Education Service, IES, did here was it completely said there will be no private speech in the form of declarations, et cetera?

[00:36:17] Speaker 02:
My first point is that there is no viewpoint restriction of speech. The books were prohibited under an anti-discrimination policy, and that is a conflict.

[00:36:27] Speaker 00:
I think I understand your argument on that, but I think I'm more interested in it. We don't have much time. Do you think that factually what the school did here is said there will be no personal decoration? We are only all the speeches, speech that you are giving on our behalf. Or did they allow some private speech here?

[00:36:50] Speaker 02:
Well, again, Intermountain is not in control of these schools. So Intermountain didn't allow anything. Intermountain was only concerned with this employee. And Intermountain is not concerned with these employees. other posters that are in the schools, because that is not Intermountain's, Intermountain has no control over it.

[00:37:08] Speaker 04:
Because Intermountain is an education services district, so it just supplies specialists who provide certain functions to various schools, right? So it has no control whatsoever over any other decorations in the school.

[00:37:22] Speaker 02:
Right, the posters, whatever, those are, and the teachers, those are all within the control of the school districts, and Intermountain serves the school districts.

[00:37:30] Speaker 00:
But did you, I mean, did Intermountain, so ignoring the school district, I'm not sure if we can because that's the environment he's in, but ignoring the school district, Intermountain has employees. Do you know if Intermountain's position was there will be no personal, none of the declarations, don't put up any personal declarations, all speech on our behalf?

[00:37:52] Speaker 02:
No, there's no blanket policy like that. The directive here was only limited to this one scenario only.

[00:37:59] Speaker 02:
So with that, that's my time. Thank you.

[00:38:01] Speaker 01:
Thank you, counsel.

[00:38:03] Speaker 02:
I think we gave you five minutes.

[00:38:16] Speaker 03:
Thank you, Your Honor. So the reasonable observer test in Poway is no longer good law. I think kind of the difficulties that come from that discussion show why part of the reason that Kennedy replaced it, that it is looking at the scope or looking at speech that's done on behalf of the employer so not everything that teachers say in school is employer speech and that's what that's you know what the supreme court said in kennedy so it cannot be the case that when intermountain allows these personal decorations for all teachers and it cannot come in after the fact and say because some students might reasonably perceive this to be the school district speech that it is now in fact our speech And so you can look.

[00:38:59] Speaker 03:
So you do disagree with the 11th Circuit then in Wood?

[00:39:03] Speaker 03:
No, because in Wood, it was a Florida law that said, you know, when you're, I don't know the exact text, but basically it's to the effect of when you're in a classroom introducing yourself to students, you cannot convey this message. So if Intermountain had done that, I think that's a completely different case. But they haven't done that.

[00:39:21] Speaker 01:
But it seems, I mean, that's a pretty personal thing is what your name is. I mean, it seems to me that that would be, It's hard for me to distinguish that from this case in terms of the school district having control over what is being said within the four walls of a classroom or other setting that's mandatory for students to attend.

[00:39:39] Speaker 03:
Yeah, I think the school has control over it because, as Kennedy said, it's the practical inquiry as to what the employer is paying the employee to do. And so in that case, you know, the 11th Circuit said this was speech she was employed to do when she's addressing students before class within the classroom setting. But that's not what it is here, because here it's just the personal office decorations, which all teachers, sorry, all employees had the freedom to do. And you can see that in our policy. I think it's at 197 and 198 in the record.

[00:40:11] Speaker 03:
It says, the policies do not require IMESD employees to ask permission before they present specific views or decorate the workplace. And then on the next page, Mr. Tice is not prevented from decorating his workplace with books other than those subject to the directive. And then Mr. Tice does not have to ask permission to decorate his office or to take expressive acts. So I think that establishes on the front end that this is not what Intermountain is paying him to do. It's not paying him to put up the books. It's not paying him to take down the books.

[00:40:42] Speaker 03:
And so I think that goes to the point that there is no longer the reasonable observer test then.

[00:40:49] Speaker 04:
I have a little trouble with the test that you're asking us to apply. It's like, what are they paying him to do? Are they paying him to display these books or not display these books? They are paying him to evaluate students, to meet with students and communicate with students and evaluate students, correct?

[00:41:06] Speaker 03:
That's correct.

[00:41:06] Speaker 04:
And within the scope of that employment, when he is performing those job duties, is he not acting as a public employee?

[00:41:19] Speaker 03:
when he is performing those job duties. Correct.

[00:41:21] Speaker 04:
So, and I'm not meaning like literally only when he's doing the test, but like during the time period in which he is engaged by the, I mean, his paycheck doesn't stop the minute the test ends, right? He's not being paid by the minute, right? He is acting as a public employee during the time period in place when he is meeting with students in his office, right?

[00:41:48] Speaker 04:
He is acting as a public employee, correct?

[00:41:51] Speaker 03:
That's correct, but okay.

[00:41:53] Speaker 04:
Okay. And then I understand that in Kennedy, there was a very fact-specific decision of that not literally everything a public employee does is necessarily as a public employee.

[00:42:09] Speaker 04:
But they also didn't say everything they do or everything they say, right?

[00:42:14] Speaker 04:
That's not literally within, you know, the specifics of their job description. is then private. I mean, I think there has to be some line drawing, right? There's some standard that we need to apply, which as far as I can tell is highly circumstantial about whether it would be perceived as private or public employee speech. Are you saying anything that they say that isn't literally carrying out any word that comes out of his mouth that isn't literally administering the test?

[00:42:46] Speaker 04:
is then his private speech in that context? And where would you draw the line?

[00:42:51] Speaker 03:
Yeah, so it doesn't have to literally be written down. Kennedy recognized it's a practical inquiry, not just, you know, what is your literal job duties. You have to look at the facts, and that looked at the facts. To Your Honor's previous point, Coach Kennedy was in the office environment, as the Supreme Court and this court recognized. He was still on the clock, as this court recognized in its decision. but that doesn't mean that everything he says was his official duty of speech. Same thing here. So what are the factors that this court looks to?

[00:43:22] Speaker 03:
Well, it can't be the reasonable observer test. I disagree, Your Honor, respectfully, that it is a reasonable observer test because Kennedy and then the Fifth Circuit in the recent decision makes clear it's not a visibility-based test. So it's a practical inquiry. You look at the job duties, the job description. If he's speaking pursuant to a government employee... Garcetti, government policy, sorry, Garcetti lays some of those factors out.

[00:43:46] Speaker 03:
So that's what you would look to and the factors in those cases. But here, as I just read the language from the policy, it is personal speech. And I see that I'm over time.

[00:43:55] Speaker 01:
All right. Thank you very much. Thank you very much to counsel on this case. Thank you to all the amicus. We read those things, so we appreciate all the many filings in this case. This matter is submitted. And Judge Sung and I will return tomorrow at 1.30.

[00:44:11] Speaker 00:
All rise.