[00:00:03] Speaker 01: We'll call our next case. [00:00:06] Speaker 01: Case number 23-5133, Brown versus City of Tulsa. [00:00:10] Speaker 01: Counsel, please proceed. [00:00:13] Speaker 02: Thank you. [00:00:13] Speaker 02: May it please the court, I'm Robert Muse. [00:00:15] Speaker 02: It's my honor and privilege to represent the plaintiff, Appellant Wayne Brown, in this important case involving the First Amendment rights of government employees. [00:00:23] Speaker 02: I'd like to reserve three minutes of my time for rebuttal. [00:00:26] Speaker 02: I will do my level best to attempt to do so. [00:00:29] Speaker 02: Here we have a well-known Indy police activist who was able to change the life of a young [00:00:33] Speaker 02: police officer by complaining about the viewpoint of certain posts appearing on the officer's Facebook page, posts that the officer made several years prior to when he was even hired by the Tulsa Police Department. [00:00:45] Speaker 02: The city in their press release bragged that within one hour and 15 minutes of receiving the complaint from the activists, the city, through its chief of police, fired Officer Brown. [00:00:58] Speaker 02: This is not a hard case. [00:00:59] Speaker 02: It shouldn't be. [00:01:01] Speaker 02: Controlling law compels the reversal of the district court's patently wrong decision. [00:01:06] Speaker 02: The firing of Officer Brown violated his constitutionally protected interest and freedom of expression. [00:01:13] Speaker 02: It's well established in a line of Supreme Court cases and cases from this court that a state may not discharge an employee on a basis that infringes that employee's constitutionally protected interest and freedom of speech. [00:01:26] Speaker 02: And here, plaintiff's speech, which was his social media posts, [00:01:30] Speaker 02: was made as a private citizen commenting on matters of public concern. [00:01:34] Speaker 00: Should we think about the chronology here? [00:01:38] Speaker 00: How should we be thinking about the chronology here? [00:01:40] Speaker 00: The speech predates his employment by several years, but it stayed up after he was employed by the police department and he changed his profile picture, right? [00:01:56] Speaker 00: Did he continue speaking that whole time? [00:01:59] Speaker 00: Or should we be thinking about it as there's a period of time that is speech that predates and then time that post dates his employment? [00:02:08] Speaker 02: Yeah, the timing of this is, to me, is critical. [00:02:12] Speaker 02: It's very important. [00:02:13] Speaker 02: As the courts have said, and Flynn again repeated it, when you're balancing, you look at the content, context, manner, time, and place of the employee's expression. [00:02:22] Speaker 02: So when you put that into that context, [00:02:26] Speaker 02: When he made this speech, and granted, I think most people understand how social media works. [00:02:31] Speaker 02: I mean, to be able to find a post that is six years old, you have to do some actual digging in his Facebook page. [00:02:38] Speaker 02: The other thing, if you look at the latest post, it was three to six years prior to him being hired with a post that were objectionable. [00:02:44] Speaker 02: So that means from the three years prior to when he was hired, there was no objectionable speech. [00:02:50] Speaker 02: And the problem, if he wanted an opportunity, you saw on the record, he wanted an opportunity to talk to the chief of police, even an opportunity to take down those posts if that was the case. [00:02:58] Speaker 02: Nothing. [00:02:58] Speaker 02: An hour and 15 minutes, they fired him. [00:03:00] Speaker 00: Did the policy contemplate, or can the policy be fairly read as a takedown policy? [00:03:06] Speaker 02: As a takedown policy? [00:03:08] Speaker 02: That can be problematic. [00:03:10] Speaker 02: You know, I tend to be a free speech purist. [00:03:12] Speaker 02: I know in the government employee context, there are situations where the speech can disrupt [00:03:18] Speaker 02: the operations of the government, and this really goes to the point of this case. [00:03:23] Speaker 02: And this is, I know when you're dealing with the balancing test is how to draw where a line should be drawn, but there is a legal line drawn here. [00:03:29] Speaker 02: It was emphasized in Flanagan. [00:03:31] Speaker 02: They cited it in the Fourth Circuit case in footnote eight. [00:03:36] Speaker 02: In Flanagan, the public reaction to speech is not a legitimate basis for restricting that speech, even in the employment context. [00:03:44] Speaker 02: There has to be some disruption in the internal operations. [00:03:48] Speaker 03: that get back to Judge Rossman's questions of chronology, because if we were to determine this was essentially continuous expression, so that at every moment that post is still on a Facebook account, and I'm not a [00:04:03] Speaker 03: Facebook user, but you said, well, it takes a lot of effort to find it. [00:04:07] Speaker 03: I don't know if that's true. [00:04:08] Speaker 03: That wasn't sort of part of the record of this case. [00:04:11] Speaker 03: But if we were to find that by leaving it on his Facebook account that that's essentially continuous expression so that the day this person from the community found it, [00:04:21] Speaker 03: Wouldn't that then negate their responsibility under the test to show actual disruption and rather they could just show that they were intended to avoid disruption? [00:04:29] Speaker 03: That changes the analysis, right? [00:04:31] Speaker 02: It doesn't, not at all, because the disruption has to be to the internal operations, not to the public's response to it. [00:04:39] Speaker 02: That was the only, in fact, the only internal disruption here with the record evidence was the firing of them. [00:04:45] Speaker 02: The Captain Bell, who was the one that was given the duty of going down and firing him, if you recall from the testimony, he told Officer Brown that he thought this firing was BS, right? [00:04:55] Speaker 02: Because they knew that their leadership was throwing the officers under the bus because this well-known political activist was trolling their Facebook pages to try to get rid of them. [00:05:05] Speaker 02: Think about the policy implications of this for government employees. [00:05:08] Speaker 02: If you can be held accountable, [00:05:09] Speaker 02: For some post that you made six years prior to being employed, and you can be fired on that basis, during that six years of period, something that might have been offensive today might not have been offensive six years ago. [00:05:22] Speaker 02: And yet they're holding to this standard. [00:05:24] Speaker 02: This is a fundamental right to freedom of speech that we're dealing with. [00:05:27] Speaker 02: And the court has said time and again, you cannot condition public employment on that. [00:05:32] Speaker 02: And if it all depends on what the public reaction is, that if you have an activist who happens to have a well-mobilized, [00:05:38] Speaker 02: incentivized, organized, affront to this police officer, then that is what is the balance of determining whether it's a First Amendment right? [00:05:44] Speaker 03: You're looking at the viewpoint, the speech itself. [00:05:46] Speaker 03: I mean, one of the images, as I understand the record, that was a basis of termination involved a post that had the Confederate flag. [00:05:54] Speaker 03: So if Officer Brownley was Officer Brown, could he just hoist a Confederate flag outside his home and not be subject to recourse because that's protected speech? [00:06:03] Speaker 02: Do I think so? [00:06:04] Speaker 02: Absolutely. [00:06:05] Speaker 02: This is the problem with viewpoint discrimination. [00:06:09] Speaker 02: And that's what this is, viewpoint discrimination. [00:06:11] Speaker 02: Because not everybody views the Confederate flag as an offensive symbol. [00:06:15] Speaker 02: There's plenty of people who view it historically. [00:06:17] Speaker 02: I was in the Marines for 13 years. [00:06:18] Speaker 02: I studied the Civil War. [00:06:19] Speaker 02: I tend to view it as a historical matter. [00:06:23] Speaker 02: It was a picture. [00:06:24] Speaker 02: That image had President Trump, then candidate Trump in a police uniform riding the line with the Confederate flag in the background. [00:06:31] Speaker 02: I was going to say President Trump is a white supremacist supporter, so now we can fire him because of that. [00:06:39] Speaker 02: This is a problem with viewpoint discrimination. [00:06:44] Speaker 02: Offense is viewpoint. [00:06:46] Speaker 02: Unless there's some effect on the internal operations, such as you criticize your fellow officer, or you criticize the chain of command, or you do something that disrupts the internal operations and chain of command, I could see that as being problematic. [00:07:00] Speaker 03: You may be a free speech absolutist, but that's not the test we have to employ. [00:07:05] Speaker 03: Pickering test in the third factor is a balance. [00:07:11] Speaker 03: without us sort of invading into the viewpoints of Mr. Brown or as the city views them, we're looking at the interest again in this balancing test and it's not absolute. [00:07:25] Speaker 03: So under my scenario where I'm saying your position is a police officer in Tulsa [00:07:30] Speaker 03: could waste a Confederate flag and not be subject to recourse because some people view that historical. [00:07:35] Speaker 03: Well, a lot of other people don't. [00:07:37] Speaker 03: Why couldn't the city in employing the Pickering Test in the Factor III say, we believe, even if it hasn't yet caused such active disruption within the force, but we're trying to get ahead to avoid disruption, why wouldn't that, in that scenario, the balance [00:07:56] Speaker 03: lead towards the city's determination. [00:07:58] Speaker 02: And again, this balancing test isn't simply a pushover. [00:08:02] Speaker 02: There's a substantial burden on the government under this balancing test for very good reasons. [00:08:07] Speaker 02: And again, going back to the main point, and the main point of what Flanagan and even that, again, the Fourth Circuit case, which it cited very favorably and dealt with racial issues and protests outside of the building, [00:08:18] Speaker 02: The court said, again, the public reaction to this speech is not a legitimate basis, regardless of the balance. [00:08:25] Speaker 00: Is it even possible to do the balancing at this stage? [00:08:28] Speaker 00: Is it possible to? [00:08:29] Speaker 00: Yes. [00:08:29] Speaker 00: Is it possible to do the balancing at the third step, at the motion to dismiss stage? [00:08:34] Speaker 00: In this case, not abstractly. [00:08:38] Speaker 02: Well, when you apply Flanagan, there is no balance, because their whole basis for disruption [00:08:45] Speaker 02: was a public response to the speech, and under Flanagan, that's not a legitimate basis. [00:08:48] Speaker 00: What about fields? [00:08:50] Speaker 02: Well, remember, Judge, this was an hour and 15 minutes after receiving. [00:08:54] Speaker 00: Right. [00:08:54] Speaker 00: What about fields? [00:08:56] Speaker 00: I mean, in fields, we recognize that the Tulsa Police Department must maintain public confidence that, quote, police protection will be available to the public and that the police will deal with all impartially. [00:09:11] Speaker 02: I'm very familiar with Fields, Your Honor. [00:09:12] Speaker 02: It was my case. [00:09:13] Speaker 00: Well, then I don't need to read this to you. [00:09:14] Speaker 00: No, you don't. [00:09:15] Speaker 00: You can tell me all about it. [00:09:16] Speaker 02: I can. [00:09:16] Speaker 02: I can tell you all about it. [00:09:17] Speaker 02: It was mainly a free exercise case. [00:09:18] Speaker 02: The free speech component came in on the filing of the lawsuit as a retaliation. [00:09:22] Speaker 02: And the court, what really was the main issue there was that it undermined, because he was challenging an order, an internal order of the police department from a senior to a [00:09:32] Speaker 02: to a junior officer, that that is where the disruption was going to be called into play. [00:09:36] Speaker 00: But it seems that the interest there is different. [00:09:38] Speaker 00: And for purposes of the third step, the interest recognized in field seems slightly different than the one at issue in Flanagan. [00:09:46] Speaker 00: Is it not? [00:09:48] Speaker 02: Well, it's only because, again, it's in the internal operations. [00:09:52] Speaker 02: Flanagan is very, very clear, very specific. [00:09:55] Speaker 00: You don't think that Fields is about the interest in maintaining public confidence and what people outside the department think of an officer's ability to treat the public impartially? [00:10:05] Speaker 02: If that's based on the reaction of the public to the speech, it's not a legitimate basis. [00:10:11] Speaker 02: And Fields did not address that in the way that Flanagan addressed it. [00:10:15] Speaker 02: Again, Fields was very scant on the First Amendment component. [00:10:19] Speaker 02: It was mainly a free exercise and establishment clause case. [00:10:21] Speaker 02: It was retaliation that came in. [00:10:23] Speaker 00: If I understand your position just on the law and I'm thinking about the clear, you know, think about this through the lens of the clearly established prong for qualified immunity. [00:10:31] Speaker 00: Is the case that establishes the law clearly here Flanagan? [00:10:35] Speaker 02: Absolutely. [00:10:36] Speaker 00: And is there any reason that we shouldn't think that in light of fields? [00:10:39] Speaker 02: Not at all. [00:10:40] Speaker 02: Absolutely not at all. [00:10:42] Speaker 02: And again, the factual scenario between the two are considerably different. [00:10:46] Speaker 02: Again, one was dealing with the internal operations of the police department. [00:10:48] Speaker 02: This was an anti-police activist who mobilized his forces to create a public controversy about these posts. [00:10:55] Speaker 02: And again, bear in mind, the city bragged of the fact that after an hour and 15 minutes, [00:10:59] Speaker 02: Really, there was that much of an internal disruption? [00:11:02] Speaker 02: Not at all. [00:11:03] Speaker 02: Like I said, the only internal disruption was that the police officers, now the rank and file, think that the senior leadership is going to throw them under the bus as soon as somebody complains about their speech that they may have made six years ago. [00:11:16] Speaker 02: Six years ago. [00:11:17] Speaker 03: Counsel, you started by saying this is an easy case, and then Judge Rossman asked you, can we even do the pickering balancing at this point when it was a 12b6 dismissal? [00:11:25] Speaker 03: I thought that's when you were going to say, well, that's what makes this an easy case. [00:11:28] Speaker 03: So I'm going to give you that opportunity again. [00:11:30] Speaker 02: 12b6 makes it an easier case. [00:11:33] Speaker 02: This is an easy case because the the fact that they fired him based on the public's reaction to a speech as a matter of Flanagan Sorry end of story we we win this certainly at 12b6 quite frankly This thing's gonna soon as we get back here and trust this course gonna reverse and send it back down There'll be a summary judgment motion. [00:11:49] Speaker 02: They'll be coming right afterwards [00:11:50] Speaker 02: because this is so plainly a violation of the Constitution that it's, again, an hour and 15 minutes, speech he made six years prior to, wasn't even aware that the police department was concerned about this. [00:12:02] Speaker 02: He went to the police academy, he was hired in January of 2019, went to the police academy, all the investigations, backgrounds, he was on the ground. [00:12:13] Speaker 02: If his conduct, and that's one of the things I think is important, if his conduct [00:12:16] Speaker 02: somehow demonstrated or caused some disruption, that's a different issue. [00:12:20] Speaker 02: We're talking about pure speech. [00:12:22] Speaker 02: And I have two minutes and 52 minutes left that I'd like to reserve, if at all possible. [00:12:25] Speaker 02: You got it. [00:12:26] Speaker 02: Go ahead. [00:12:26] Speaker 02: Thank you. [00:12:43] Speaker 04: May I place the court? [00:12:44] Speaker 04: lost a bond with the city of Tulsa on behalf of the city of Tulsa and retired Chief Jordan. [00:12:51] Speaker 04: I'll jump in with I think that you're right on with the timing. [00:13:01] Speaker 04: I think this [00:13:02] Speaker 04: It was a post that was continuously posted. [00:13:06] Speaker 04: He had the opportunity, once he became a police officer, knew about the policy. [00:13:14] Speaker 04: He could have taken the post down. [00:13:15] Speaker 04: He could have made it private. [00:13:17] Speaker 04: He didn't do that. [00:13:18] Speaker 00: Is the policy a takedown policy? [00:13:21] Speaker 00: Should we understand it that way? [00:13:22] Speaker 04: I don't believe so. [00:13:24] Speaker 04: I don't believe so. [00:13:24] Speaker 00: So why did he have an obligation to remove speech that he made years before? [00:13:31] Speaker 00: he was employed by the police department. [00:13:33] Speaker 04: Because of the, as you've mentioned, the public employer has an interest in the public's confidence and in the efficient operation of its enterprise. [00:13:45] Speaker 04: And if officers are allowed to make posts that are [00:13:52] Speaker 04: discriminatory and expressed bias against segments of our community on the basis of their religious beliefs or on their race. [00:14:05] Speaker 04: That tremendously hurts the city's ability to do that. [00:14:10] Speaker 01: What if these posts had been taken down, but before they were somebody screenshotted them and then brought them down and gave them to the chief and said, look at this, look what a rotten guy you've hired. [00:14:21] Speaker 01: He's terrible. [00:14:23] Speaker 01: He's violating all your policies. [00:14:24] Speaker 01: We want him gone. [00:14:25] Speaker 01: These posts were taken down. [00:14:30] Speaker 01: They were three to six years old before he was ever hired. [00:14:32] Speaker 01: They were down before he was hired. [00:14:36] Speaker 04: I think that would be a different scenario. [00:14:38] Speaker 04: I think that we would not have the actual disruption that we have. [00:14:43] Speaker 04: We also would not have the [00:14:45] Speaker 04: potential for more internal disruption that we've mentioned in our brief. [00:14:51] Speaker 00: Well how should we be considering the this sort of the type of potential disruptions and the type of interests that you articulate in your briefing at the 12b6 stage? [00:15:01] Speaker 00: I mean this concerns, I mean my question concerns how we're supposed to do the third step of Garcetti Pickering on a motion to dismiss and if we take all of the allegations [00:15:12] Speaker 00: here in the complaint. [00:15:14] Speaker 00: We can't look at your arguments about your interests at this stage, right? [00:15:20] Speaker 04: Well, it would just be the inferences that you can draw. [00:15:24] Speaker 04: I think it's easy to see how there would be internal disruption by one officer expressing bias against those that practice Islam, against those based on their race. [00:15:39] Speaker 03: Is it what you just said, inherently a fact-based determination? [00:15:43] Speaker 03: I mean, I read Flanagan to say here are the considerations that the court must undergo in doing this pickering balancing and this question about at the 12b6 stage where whatever they said in the complaint that's well-pleaded we have to accept as true, wasn't it error for the district judge to go forward on a balancing and make all these factual determinations at the motion to dismiss stage or why wasn't that error? [00:16:10] Speaker 04: I don't believe so, but because I think those facts were in the amendment complaint, I think that he relied on those facts. [00:16:18] Speaker 04: He took those as true. [00:16:19] Speaker 04: And based on those facts, he found that it was not sufficient to support a claim. [00:16:28] Speaker 04: I think that it's easy to see how there would be a disruption where you have, and the case law has said that there's to be [00:16:39] Speaker 04: great deference given when it involves law enforcement, when it involves a police department where there's a great deal of loyalty and confidence between the officers needed in order for an efficient operation. [00:16:55] Speaker 04: And if your backing officer has voiced that he doesn't like you, he doesn't like your race, your religious beliefs, [00:17:07] Speaker 04: Now you've got questions about, you know, can I be confident this person is going to back me? [00:17:13] Speaker 03: So you're at the balancing test. [00:17:15] Speaker 03: And again, I'm just looking at only the complaint here. [00:17:20] Speaker 03: And for example, you said a moment ago, well, when he was hired as police officer, he could have made his Facebook account settings private. [00:17:28] Speaker 03: Well, the complaint doesn't say anything as to whether or not his Facebook was set to public or private. [00:17:34] Speaker 03: And even so, you know, the timing aspect comes into play about when those settings could be changed. [00:17:39] Speaker 03: Again, isn't all that fact-based determination that a court would have to make at the district court level to delve into the mechanics of Facebook and who could have seen what when, and then to balance that against either actual disruptions or the potential to avoid disruptions. [00:17:55] Speaker 04: Well, I think the fact that there was I mean there were 300 shares of this post that was the copy of the images that Officer Brown shared. [00:18:14] Speaker 04: There were media inquiries. [00:18:17] Speaker 03: There was I think actually ‑‑ But all that came about because somebody else republished them. [00:18:24] Speaker 03: So how can you say, well, the media was interested in this. [00:18:28] Speaker 03: Wasn't that a result of him being fired and then that being put out into the public domain? [00:18:32] Speaker 03: It's not because he posted that six years prior, right? [00:18:36] Speaker 04: The Post didn't say anything about him being fired. [00:18:39] Speaker 04: The Post just had, hey, this Tulsa police officer posted this. [00:18:46] Speaker 04: Isn't this outrageous? [00:18:48] Speaker 04: And yeah, it was. [00:18:52] Speaker 04: And the city doesn't have to wait for [00:18:59] Speaker 04: wait to see what unfolds. [00:19:01] Speaker 04: It can act and that's why it did within an hour and 15 minutes to prevent more internal disruption that it could see. [00:19:10] Speaker 01: So it sounds like you're agreeing that the disruption is internal and that you don't rely on an external disruption. [00:19:20] Speaker 04: There's both, and I think the district court found both. [00:19:23] Speaker 01: There was actual disruption, and there was also potential for... I'm not suggesting that there wasn't, but as a legal matter, which one matters here, whether there was an internal disruption or an external disruption that you were trying to prevent? [00:19:39] Speaker 04: There well the case law talks about you know both the the efficient You know the efficient operation of the enterprise is is what? [00:19:49] Speaker 04: There's some tension in our case law isn't there there's a little bit of tension you would you agree that Flanagan's controlling I do not believe that this case is easily distinguishable from Flanagan I think the court and Flanagan found that [00:20:05] Speaker 04: any disruption related to the speech itself was too attenuated and I can see that in that case. [00:20:12] Speaker 04: In that case you have officers that are having off duty business where they are [00:20:20] Speaker 04: you know, just have part of their business is that they are selling and renting videos, have sexually explicit material in them. [00:20:29] Speaker 04: It's something that, you know, maybe somebody finds out that officers own this video store, maybe somebody is offended by those, and maybe it was just, it was so, you know, maybe it causes them to [00:20:45] Speaker 04: lose respect for the police department and not cooperate with the police department, it was very attenuated. [00:20:51] Speaker 04: Here we have, here's some offensive posts directly linked to Tulsa Police Department officer. [00:20:59] Speaker 04: You don't have to stretch so far to find the disruption caused by the speech itself in this case. [00:21:10] Speaker 01: If you have anything else, you're free to finish, but I'm not hearing any more questions. [00:21:13] Speaker 01: I have another question, if I may. [00:21:15] Speaker 01: Sure. [00:21:15] Speaker 03: If we were to remand on the First Amendment claims, would there be any reason why we shouldn't do the same on the qualified immunity analysis regarding Chief Jordan? [00:21:26] Speaker 04: I think that Chief Jordan is still would certainly be entitled to qualified immunity. [00:21:36] Speaker 04: I think that [00:21:41] Speaker 04: the fact that [00:21:42] Speaker 04: It's so unclear as to whether Flanagan was on point or, I mean, the district court determined it was not. [00:21:54] Speaker 04: I don't believe it is on point. [00:21:55] Speaker 04: I don't believe it would have informed Chief Jordan that what he was doing was going to be a violation of Officer Brandon's constitutional rights. [00:22:06] Speaker 00: So what would the clearly established law be here? [00:22:08] Speaker 00: Are you relying on fields? [00:22:09] Speaker 00: Are you saying the law is not clearly established? [00:22:12] Speaker 00: What's your position on assuming a constitutional violation, a First Amendment violation? [00:22:17] Speaker 04: I think Fields is very clear on the superior interests of the public employer in the public's confidence and in its efficient operation. [00:22:37] Speaker 04: And when that's impaired, the public employer does have the right to limit that speech. [00:22:50] Speaker 04: And I would just mention with a little bit more time that I have. [00:22:55] Speaker 04: on the equal protection claim. [00:23:00] Speaker 04: I think that that was properly dismissed by the law court and should be affirmed. [00:23:05] Speaker 04: An equal protection claim is where you have a government treating one group of citizens different from another group. [00:23:16] Speaker 04: We don't have that here. [00:23:17] Speaker 04: That's not been alleged here. [00:23:19] Speaker 04: It's not like there's anybody that, you know, all the TPD officers had a right to use Facebook. [00:23:30] Speaker 04: None of the TPD officers had a right to express bias on the basis of race or religious beliefs. [00:23:40] Speaker 04: It'd be one thing if there was, you know, some groups that were allowed to do that and some were, you know, accepted, but no, we're not going to let somebody [00:23:48] Speaker 04: express these views. [00:23:50] Speaker 04: It's not a viewpoint issue. [00:23:51] Speaker 04: It's a matter of public confidence. [00:23:56] Speaker 04: It's a matter of expressing bias towards any religion, any race. [00:24:09] Speaker 01: Thank you. [00:24:14] Speaker 01: You've got 249? [00:24:17] Speaker 02: No, give me 249. [00:24:19] Speaker 02: Okay, three seconds. [00:24:19] Speaker 02: I'll give them up. [00:24:21] Speaker 02: Your Honor, regarding the qualified immunity, Flanagan is on point. [00:24:23] Speaker 02: Is it clearly established law of which a reasonable person would have known? [00:24:27] Speaker 02: This is a direct quote from Flanagan. [00:24:30] Speaker 02: The employer, quote, cannot justify disciplinary inaction against the employee simply because some members of the public find the speech offensive. [00:24:39] Speaker 02: That is a long-standing principle of law. [00:24:41] Speaker 02: It's ingrained in Flanagan. [00:24:43] Speaker 02: It absolutely defeats qualified immunity. [00:24:45] Speaker 02: And again, I won't read the footnote, but look at footnote 8 in Flanagan where the court cites with favor the Fourth Circuit case where there was all this external disruption made that very point. [00:24:56] Speaker 02: It's called the heckless veto. [00:24:58] Speaker 02: The First Amendment knows no heckless veto. [00:24:59] Speaker 02: That is a long-standing principle of law. [00:25:02] Speaker 02: even in the employment context. [00:25:04] Speaker 01: So I doubt you're going to concede that there's any tension in our case law. [00:25:08] Speaker 01: Oh, there's none. [00:25:10] Speaker 02: There's absolutely none. [00:25:11] Speaker 02: And there shouldn't be. [00:25:12] Speaker 02: Think about the policy justifications. [00:25:14] Speaker 02: Think about if you rule on behalf of the Tulsa Police Department, how this incentivizes all these people with these agendas, this happens to be an anti-police agenda, to mobilize their social media forces to go after an individual in government and get them kicked out because the public is responding to a speech. [00:25:31] Speaker 02: The New York Supreme Court has said time and time and time again, [00:25:37] Speaker 02: You know, the speech on public issues must be uninhibited, robust, and wide open. [00:25:41] Speaker 02: We have a First Amendment for a reason. [00:25:42] Speaker 02: It what distinguishes us from all these other countries. [00:25:45] Speaker 02: And it's being eroded. [00:25:46] Speaker 01: So on the clearly established prong of the qualified immunity question, you wouldn't look at it and say that the chief could look at Flanagan and Fields, for example, and say, gosh, you know, after looking at these, I'm confused. [00:26:01] Speaker 01: There should be no confusion. [00:26:04] Speaker 02: Fields was not as much an employee speech case as Flanagan was. [00:26:08] Speaker 02: Flanagan was plainly on that point. [00:26:11] Speaker 00: Even if he could be confused, he can't be confused yet. [00:26:14] Speaker 00: We're at the motion to dismiss stage. [00:26:16] Speaker 00: Isn't our understanding of what the clearly established law is that we're [00:26:20] Speaker 00: on the hunt for, derived from how the first, the constitutional violation is formulated? [00:26:25] Speaker 02: Right, and the question of what is that time again, I think was the whole case, that doesn't have to be, it can even be a novel circumstances, have to be exactly on point. [00:26:31] Speaker 02: What is the established law? [00:26:33] Speaker 02: The established law is you can't justify the firing of a government employee based on [00:26:36] Speaker 02: the public reaction to speech. [00:26:38] Speaker 02: That was clearly established at the time that Mr. Brown was fired. [00:26:41] Speaker 00: And that supports the allegations in your complaint are Flanagan driven, right? [00:26:46] Speaker 02: Flanagan driven as well as a host of other First Amendment cases dealing with the free speech. [00:26:51] Speaker 02: Real fast and equal protection. [00:26:52] Speaker 02: I got 18 seconds. [00:26:54] Speaker 02: It's not a class of one case. [00:26:55] Speaker 02: It's not a [00:26:56] Speaker 02: disparate treatment case, they totally misapprehend it. [00:26:59] Speaker 02: This is the police department of the city of Chicago versus Mosley. [00:27:04] Speaker 02: The Supreme Court has said under equal protection, not to mention the First Amendment itself, when the government grants a form to individuals for speech, it can't prohibit speech because they dislike the viewpoint expressed. [00:27:15] Speaker 02: This is plainly viewpoint discrimination in a form. [00:27:17] Speaker 02: It's social media. [00:27:18] Speaker 02: He even admitted, the government admits, [00:27:20] Speaker 02: that the social media is a form that's open to all the offices. [00:27:23] Speaker 02: When you start engaging in viewpoint discrimination in that form, not only is it a First Amendment violation, it's an equal protection violation. [00:27:29] Speaker 02: Thank you, Counselor, you're on time. [00:27:31] Speaker 01: The case will be submitted and Counselor excused. [00:27:33] Speaker 01: Thanks both of you for your arguments.