Welcome to Short circuit, your podcast on the
Federal Courts of appeals. I'm your special host
today, Ben
an attorney at the Institute for Justice, and
this is a special live edition at the
Hogan Levels law firm. In downtown, Washington Dc.
So I'd like to start by just thanking
Hogan for their hospitality and having us here.
I think that it's now becoming
sort of a thing that every good law
firm has to have, which is hosting a
podcast for their summer associates and we're glad
to be able to to provide that here.
And this is a real treat for me
because I'm gonna be on a panel here
talking about 3 cases from the courts of
appeals with my former and current colleagues.
Because I was an associate at Hogan levels
for about 2 and a half years before
coming to I j, and so I'm excited
to be back.
Our 3 panel. We're gonna talk about cases
today, are first, my current colleague, Kirby Thomas
West, who actually, has an office directly next
to mine at I j their headquarters in
Arlington, and she's gonna be talking about authority
first amendment issue for public school teachers.
We also have Sean Mara, who's a partner
at Hogan Levels in the appellate group. He's
also a Twitter Long M and a repeat
guest
on
the short circuit podcast podcasts. So we look
forward to having him back to talk about
maritime shipping and the car muscles that can
arise from Matt.
And finally,
is another Hogan is a Hogan associate in
the Appellate group and another former colleague of
mine. Danielle
Des Stem, who's gonna be talking about guns
and standing. But before jumping into those exciting
cases, I just wanted to give Sean and
Danielle a chance to talk about you know,
what is what is Hogan like? What is
it like being in the Appellate group here.
You know, we're we're happy to be here
and we love to to hear about what...
What happens in these have?
Well, we're we're really excited to have you
back ben, as I mentioned before we started
taping. If you just wanna jump in in,
like, bang out some brief while you're here.
We'd love to have you back.
But we're really, really excited to have short
circuit with us and I who have
both been someone that we've supported. I know
through our mucous practice and others through some
of the great work you've been doing in
the 19 83 civil rights space.
As I mentioned also, 1 of my greatest
regrets as an attorneys that I once had
to file a brief an opposition against the
New Orleans
tour guide licensing regime that I j challenge
than that we defended. But although we succeeded
in that particular challenge, it was still really
great work that I j does. In both
occupational licensing, forfeit
and civil rights that is, really, I think
can draw people together across the spectrum. Also
really excited to have our summer associates with
us, today, who have been doing a lot
of really interesting and great work, shout out
in particular to my team that will be
helping a different libertarian organization, the Kay Institute
file an ami brief in support of a
section 19 83 plaintiff in the Supreme court
this coming Monday, which has been a really
fun
opportunity for them to get to see a
brief from, honestly, the very beginning of its
conception through the outline to the drafting and
all the way to the filing working with,
your friend and mine, Clark Nellie from the
Kay Institute.
And Danielle, what's your practice like, what brought
you here? Oh, what brought me here? I
mean, it's been a while now. But, you
know, if you talk to any Hogan person,
I think we will always say the thing
that brought us here is the people, and
the thing that keeps me here is the
people, and it's just been such a wonderful
pleasure to work with Sean. And you for
a brief stint while we overlap and everyone
else in our group and broadly at the
firm.
I think our firm is just a really
wonderful place to be a lawyer and to
learn the practice of law, and I'm excited
to be joining you on the panel here
to today. Great. And speaking of people and
people who like to make silence
at home.
Why don't we we talk about this fifth
circuit today case that you're you're bringing to
us today.
Sure. So I'm gonna talk about pax and
Versatile,
a fifth circuit decision that they issued last
month.
And as Ben preview is a case about
silence and standing, although it is really a
lot more about standing than it is about
silence.
And the facts are actually comparatively simple at
least as compared to the 3 cases you're
gonna hear today.
There's a federal law that has a long
regulated silence
by requiring individuals who wish to make 1
for personal, non commercial use to pay tax,
file a written application, and if the application
is approved register the silence.
In 20 21, Texas decided it did not
like that law. And so it passed its
own, designed to wholly displace the federal regime,
The law at a silence that is manufactured
in Texas and remains in Texas is not
subject to federal law or regulation.
Individual plaintiffs and the state of Texas sued
seeking an injunction to stop the federal law
from applying to silence that were made in
Texas.
So that's the background. But like I said,
this case is really much more about standing
than it is about silence.
The district court found the individual plaintiffs and
the state locked standing, and here is the
part that may surprise you, the fit circuit
affirmed. Found
so just a couple of here to sort
of set the table in terms of the
standards for standing that we're working with.
This is really about the injury factor requirement,
which means you need an injury that's concrete,
particularly and actual or imminent, rather than hypothetical.
The case came before the court on a
motion of some... Motion for summary judgment, so
the requirements were more rigorous than if it
was at an earlier stage in the proceedings.
2 further wrinkles. The first is that this
case involved a pre reinforcement challenge, meaning the
individual plaintiffs were challenging the federal law. For
it had been applied to them, and they
were also seeking an injunction. And all of
that combined generally raises the standing bar
So to kind of dis it all, the
plaintiffs had to show a serious intention to
engage in conduct prescribed by federal law, and
credible threat of prosecution in order to have
standing.
The panel was 3 conservative appoint t's,
and they unanimously held that both the individual
plaintiffs and the state's lacked standing.
So for the individual plaintiff,
I know those longtime listeners to the podcast
are probably familiar with this, but since we
have the summers in the room,
typically, you would write a declaration. The working
with the plaintiff and the lawyer, explaining how
the law applies to you how you're gonna
be hurt by this law in order to
show why you would have standing.
And I think it's worth quoting verbatim, what
the individual plaintiff
declarations said here.
Quote,
I intend to personally manage... Manufacture a silence
from my own non commercial personal use.
The silence error will be manufactured in my
home from basic materials, without the inclusion of
any part imported from another state, other than
a generic and insignificant part, such as a
spring, screw, nut or pin.
It's
that might leave you with a couple of
questions?
Like
what kind of silence are are you planning
to make?
When are you planning to make that silence
sir? Are you planning to comply with the
Federal requirements to
apply for
permission to make the silence search to register
it to pay the tax.
They said absolutely nothing about any of that,
and that is the fundamental basis on which
the fifth circuit get held that they lacked
standing.
The fifth circuit gave 2 primary reasons for
its conclusion as to the individuals. The first
was that they never said they intended to
do anything illegal.
Federal law only prohibits making a silence or
if you don't comply with the requirements, and
the plaintiffs never said they were going to
fore those actions or that they were unable
to do them, like, if didn't have enough
money to pay the tax or they were
stat prevented from satisfying any of the filing
requirements.
They In the court distinguished between a case
like this and cases where you have a
blanket prohibition, which is comparatively common in the
gun context.
So a loss saying no 1 under the
age of 21 can carry a firearm full
stop. You don't have to do anything in
advance to trigger the law. It just applies
to you as long as you have a
firearm.
And the second basis the court gave was
that they didn't give... The individuals didn't give
enough detail to show a serious intent to
make a silence sir such that any injury
was imminent.
And again, it looked at other second amendment
cases, including 1 where the plaintiff talked in
detail about the type of gun he wanted
to buy, the dealer he planned to buy
it from and the price.
Basically, in those cases, the gist is that
if not for this law, I would go
by this gun today. And that was missing
here. There was nothing sufficiently detailed about their
imminent intended to make these silence.
So that was the individuals But this case
had a second plaintiff, which was the state
of Texas.
Interestingly,
the law here actually required Texas to file
complaint seeking to uphold the Texas law, asking
for what's called the decor judgment, so declaring
the Texas law. Is constitutional and legal.
If any plaintiff petition to the state and
asked them to do it, which is how
the state of Texas got involved here, And
I think you can actually tell from the
brief the fifth circuit, that Texas didn't really
think this case was all that worth lit
because it devoted only, like, 3 pages.
To Texas own standing arguments,
but they were here, and they had to
make them. So they put forth 2 bases
on which Texas supposedly had standing.
I'm gonna just pause and say a couple
words again because we have the somewhere in
the room about something called the Mel bar,
which might not be familiar to everyone.
So the Mel bar is a doctor that
says states can't bring what's called a parents
pat suit against the federal government.
The idea is that when you bring a
parents suit your suing on behalf of the
citizens that you represent to protect their interests.
But when you're suing the federal government, the
federal government is supposed to be representing those
same citizen interests, so the state can't really
step into its shoes.
There are some ways that you can get
around this bar. However, by assert what are
called Quasi sovereign and sovereign interests.
So Texas invoked both theories, it's that It
had a quasi sovereign interest in its citizens
health and well being and a sovereign interest
in the power to create and enforce its
own legal code, but the Fifth circuit rejected
both. These are both recognized ways get around
Mel, but Texas just haven't done enough to
show they applied here.
I didn't have any unique quasi sovereign interest
that the plaintiffs themselves couldn't assert, which is
a requirement here. Otherwise, Texas is just sort
of volunteering his tribute to use a popular
phrase
from the hunger games to lit those claims
on its citizens behalf.
And second, although there is a sovereign interest
in enforcing your own legal code, the mere
desire to I state citizens from federal law
doesn't cut it. You have to actually set
up a legal code, set up a program,
administer that program, do something more than say,
hey, hey, we don't like that federal loss,
so it's not gonna apply in tech.
So that is Packs and block.
The plaintiffs have until early August to petition
for re recurring on Bong, so it's possible
This case isn't done, although
if the attention given to these issues in
the brief any indication, I think that petition
is probably not forthcoming.
But, you know, just a couple of thoughts
about some broader trends that I think this
case exe identifies.
Longtime listeners and recent supreme court watchers
we'll probably know that the fifth circuit has
not been doing so well, particularly on standing
issues in the Supreme Court recently.
I counted them up, and I got
9 fifth circuit cases on review this term,
6 of which were reversed by the Supreme
Court, and 5 of those 6 reversals were
either unanimous or 8 1 votes,
all written by conservative members of the court,
Justices Thomas Kavanaugh,
Roberts and Barrett.
In the alliance for hip bureaucratic medicine case,
that if a case, it was a 9
reversal, and the... They explicitly called out with
the Supreme Court referred to as the fifth
circuit unprecedented and limitless approach to standing.
Same in Murphy, finding no standing to challenge
a government
actions with social media,
and
called their justice Barrett called the fifth circuits
doctor startling
broad and boundless.
We also have some previous cases from earlier
terms again, striking down fifth circuit standing decisions
as making an uncharted path or entirely novel
so for example, Us first, Texas,
California, Texas,
Dover Brown, which was the student loan borrowers
case,
And then holland versus Bur,
which was a case about Texas standing to
sue under this Quasi sovereign and sovereign interest
doctrine.
So
maybe 1 takeaway from this case is Texas
or excuse me,
the fifth circuit is getting the message.
Remains to be seen. You know, the facts
here, I think we're very different from those
cases and particularly since it didn't seem like
the state belief too strongly in its interest
maybe the fifth circuit just kind of took
that as an out.
I I also think there's a very interesting
footnote in this that flags in argument in
Texas was making about the Mel bar. So
So Texas argued that the Mel bar shouldn't
apply at all when you're dealing with Quasi
sovereign interests and the fifth circuit get flagged
we're not gonna answer that question because they
haven't an asserted and adequate quasi sovereign interest,
but this is definitely an area that I
expect will see continued litigation on, and it's
something that courts and comment have already been
talking about for a while, particularly as we've
seen so many more suits from states challenging
the federal government in recent years.
So we... At I j, obviously, are our
bread and butter is bringing constitutional claims against
the state or federal governments
And, so, you know, the first time is
always drafting a a complaint or declarations for
an injunction. And I don't think I've ever
sent 1 to our director of litigation Dana
Berlin leonard.
Where the comment did not come back. You
need more details on precisely how you've been
injured. So I'm curious Kirby,
did this case strike a chord for you.
It definitely did. Yes. I actually, Danielle, you're
talking about them if a pressed stone case,
and 1 of my last appearances on short
circuit was when the... Circuit had just decided
them mi a preston case, and we were
contrasting that with a case out of the
fourth circuit in which the fourth circuit held
that parents who are challenging a Maryland schools
policy on,
not notifying parents if children were socially transitioning
and schools using different pronouns and different names
on that those parents didn't have standing,
and the parents said, well, the whole point
of the policy is that we don't know
if we're affected, but we have children in
the school and the 4 circuit there theirs
said the parents didn't have standing. And then
the fifth circuit had just said that these
doctors did have standing infected in this kind
of more outrageous situation, the them if a
pre case. And I think
whenever the standing it issues comes up. As
as Ben said, it does strike a cord
because courts can be really all over the
place. And I think
I'm interested as Danielle had to see if
the supreme court's kind of recent cases on
this will
provide a little bit more consistency in the
lower courts, but I think still generally frustrating
for public interest lawyers. What happens is
if a court does not want to decide
a case,
they can find a way to use standing
to kick you out, which is why
Dana Berlin is quite right to say, add
more detail, and we need to be careful
about how we draft our complaints. And I
think this case also is a good example
of how much the states are really taking
a lead in a lot of what used
to be public interest litigation. I mean, it
used to be, you know, back in the
day, I'm old enough to remember where you
had to, like, troll and find some person
who was actually affected by it and sure
maybe they were being supported by groups that
had sort of a broader ideological interest but
you actually had to go find people.
But now it seems like... And this is
honestly true of both red and blue states
that when you have you know, a democratic
administration, you have a wave of red states
and elected attorney generals who wanna make a
name by suing the federal government. And when
you have a Republican administration, you have a
group of blue states that go and sue
the federal government to try to make a
name for themselves. And it's really a change
as to how much we've seen sort of
state standing being the question because the state
to the ones who we're taking the lead
in these big cases either to get favorable
venues or honestly just because they think it's
it's good publicity for their attorneys generals. It's
way different than even it was, you know,
10:20 years ago.
And so why don't we turn now to
a case where standing is not an issue
where Ind dispute, somebody was being made to
pay 500 dollars. They said that they didn't
wanna pay. And what happened there shot. Sure.
So this is a case out the Dc
circuit, issued on July fifth right after the
July fourth holiday called evergreen shipping agency versus
federal Maritime Commission. First of all, at the
very beginning, disclaimer,
myself and my colleague, Kate S filed an
Ami brief in support of the petition in
this case, so it is a Hogan case.
But I love this case even beyond working
on it because it's has everything that I
love about administrative law appeals, which is that
you learn about the plumbing of parts of
the world that you have taken for granted
all of your life and, like, learn that
for everything that occurs. There is a group
of people intensely focused on this really small
thing
that you have no idea about So, for
instance, you may not have known there's an
agency called the Federal Maritime Commission, which among
other things, it it it like many sort
of new deal era type
agencies
have a requirement that practices that relate to,
again, among other things, shipping containers, be, quote,
just in reasonable.
Which is a very broad term. But shipping
containers are those things that you see on
those giant ocean freighter
they then get transferred to the back of
semi and they go to warehouses and shipping
containers literally make the world run, which is
something I discovered during all of this.
Because
think about how stuff gets from, you know,
China, Japan to your doorstep. If somebody makes
it They put in a container. They put
the container on a ship. The can... The
ship comes to a Us port. They take
it off the ship. They deliver it to
a warehouse. They deliver it to a store.
And these shipping containers make the whole thing
work because if you don't have shipping containers
either to go back
to Asia or any place else, you can't
ship new things.
And if they're sitting on a port somewhere,
you can't get the stuff to your house.
So, you know, during Covid, when people used
to say, oh, we're having supply chain issues,
this is the stuff they're talking about. And
so a big issue in the freight industry
I came to learn is something called freight
fluidity.
Which is the question of is this sort
of circular process of getting containers
to where they need to be happening because
if it's not, the whole thing gets sn.
And it's like a traffic jam where once
it gets bad, it could progressively gets worse.
So...
And this can happen in 2 ways. 1
is now you don't pick up your container
in time, and so it's sitting on the
port and you can't get new stuff in
or
you keep it for too long, and it's
not going back to where it should.
Waiting too long is called D mirage, holding
it too long is called detention, and they're
basically 2 sides of the same coin.
And so 1 of the ways the shipping
industry tries to incentivize people to return things
or pick up things when they supposed to
is, you have a contract, and it says
if you don't pick it up or deliver
it by this period, we're gonna start charging
you. It's essentially a late fee.
But it's subject to the fair federal Maritime
superintendents to say whether it's just or reasonable.
So, you know, I think shippers wanna say,
look, whatever's is in the contract should go.
And the people who pick up and drop
off these things want more careful to your
superintendents by the agency. And everybody kind of
petition to say, how about we have some
sort of rule that defines what is just
reasonable which respect to these charges.
And what the Federal Maritime Commission said was
well, we're not gonna set you know, out,
we're not gonna set out a hard rule
but we're gonna issue an interpretive guidance that
says,
primarily what we're gonna focus on is this
incentive principle? In other words, is this fee
incentivizing you to pick off or drop off
on time. And if the fee isn't doing
that, it's gonna be unjust and reasonable.
But in response the comments from everybody who
said, wait a second. Wait a second Wait
a second. That shouldn't be the only thing
you think about. The Federal Maritime Commission said,
but don't worry.
We're gonna consider all the facts and circumstances
in any case. You know, it's 1 of
those multi factor balance tests where no 1
factor is controlling.
So this brings us to evergreen shipping. And
as Ben mentioned, it is a case that
went all the way to the Dc circuit
on 510
dollars.
But the... But it's obviously the broader principle
because these detain and d mirage principles are
hundreds of millions of dollars to the to
the shipping industry. And more importantly,
they are how you get the freight going
because they don't really want your late fee,
what they want is they want you to
pick up and drop off on time.
So what happened in this case was typical
Covid situation,
they couldn't get the container out of the
warehouse and back to the port of Savannah
where it's supposed to. They ran out of
what's called free time, which is essentially your
grace period to return it.
But they couldn't return to Savannah when they
wanted to because the port of Savannah was
closed for the Memorial Day holiday. So the
shoes so the...
The holder of the container said, well, gosh,
the incentive principle doesn't apply because we couldn't
return it. The port was closed. And our
response was
or, you know, the Evergreen response was, but
you could have dropped it off sooner when
you were supposed to, and you knew about
this closure way in advance. Memorial Days the
same time every year and you knew the
port was gonna be closed.
And the Federal Maritime Commission said, well, under
our incentive principal, it's
it's not incentivizing therefore, the fees are unreasonable.
And,
Evergreen took a petition for review to the
Dc circuit.
And it's a great breezy 10 page opinion.
I really recommend it. It also sort of
covers a lot of the administrative procedure act
basics.
Of how agencies have to go about carrying
out their duties.
Because first of all, the Dc circuit said,
wait. You promised 1 thing, and then you
said another. When you pass this interpretive rule,
you said,
you were gonna consider all the facts and
circumstances.
But when it actually came time to apply
this in practice,
all you looked at was this incentive principle,
which is the very thing you said you
weren't gonna do agency.
You need to look at all the circumstances,
including the fact that they already had free
time with this that you knew about the
closure in advance. All of these other factors
that you never considered,
And moreover, by the way, when you did
discuss some factors, you didn't really explain why
what you were doing.
So, you know, the essence of agency action
I always say is, it's not a question
of Are you right? It's did you do
your homework? Did you check the boxes? Did
you do the things you said you were
gonna do? And I think, actually this carries
across. What Ben was saying about the declarations
is, you know, agency should always say a
little bit more? Like, okay. You have a
conclusion? Well, why?
Well, why to And then if somebody has
an obvious response to that, well, why don't
you agree with it? And so, you know,
the the 2 takeaways, I think for agencies
are, 1, don't pull bait and switches. Don't
say you're gonna do 1 thing and do
another. And second, always make sure if you're
say you're gonna have a totality of the
circumstances,
actually consider the totality of the circumstances in
March, through each factor.
But I think the broader implication is is
that it's going to be
easier for shipping companies to justify these charges,
which should then hopefully make an easier for
products to get to your door.
So 1 thing that was, you know, I
had never heard of the Federal Maritime commission
before reading this case. And, you know, in
most of the economy, people just make agreements
with people. You write a contract then you
honor the contract, and there's no federal bureau
looking over your shoulder to decide whether it
was a good contract. And this 1 also
seemed weird because the the commission itself seemed
to be inviting, briefing on, like, this specific
question of how to imply this incentive rule.
So I just wondering, you know,
since you were representing, you know, the industry
at large, I'm curious like, what is there...
What's really going on behind this? Like, why
Why is there this fight over 500 dollars
in this agency that seems to be nit
picking me in this... Straight. Yeah. So this
is, I think really a test case because,
you know, the the commission actually did invite
and send invite Ami brief. And the way
it's typically handled is they're like a small
claims hearing officer that would resolve these things,
and their decisions are often final, but the
commission as they have the right do kind
of took on this case to try to
state some broad principles. There's But unfortunately, the
broad principle, they decided to state was the
incentive rule controls overall,
even though, again, they had promised that they
weren't going to do that. And I think
the broader, you know, sort of push pull
is between
people who take containers. Who, you know, would
like to not pay as much money. And
the industry, which again, I represent the industry
so that I get to characterize this is
they wanna try to keep their freight flowing
as freely as possible, and really what they
want is they want their contracts to control
to a large extent.
You know, the idea is even if when
the Federal Maritime commission was created this was
a large, you know, the shippers were kind
of mono monopoly and they can impose
terms. Now there's a lot of competition in
the industry. If you don't like us ship
with somebody else.
And, you know, there actually terms do vary
between contracts on how much free time you
get or how much the detain or mirage
fee is. There's a lot of competent tissue.
So I think a lot of their argument
is, look, we can let the market solve
this.
That's the libertarian plug.
I I agreed, Ben, someone who is not
familiar with this and also learned about the
Maritime Commission for the first time reading this
case. It did seem like,
1 of the other factors that hadn't been
really at all addressed by the agency below
was the fact that this was contracted for
and that they... The... Because
very sophisticated parties had agreed that this was
the right the... You know, what the conditions
that they they wanted to be there. But,
I also agree with, Sean that it was
just such a an interesting peek into this
world that I was blissful unaware of of
how my Amazon package get. To me. So
I I did enjoy. I I also recommended
this to everybody's reading.
I completely agree with all of that and
just 1 other thing that I was really
interesting about this case, which Sean mentioned, but
might have gotten sort of lost in all
of any other interesting points about it is
that no 1 appealed the original decision. The
commission decided Su
to take this question up and to just
sort of articulate this role, and so
so much of the time. I think we
see these,
you know, insufficient agency decisions from agencies that
just don't want a case there in the
first place. They're like, really, come on guys.
We fine. Okay. We'll we'll just get rid
of it in a paragraph or 2. But
that was not this. The they chose to
take this case. They chose to answer this
question. So great illustration of the principal, you
know, be careful what you wish. Be careful
what you do when you're an agency. And
if you're gonna take that case, you should
definitely be offering some reasoning there.
For So we've talked about the grand federal
regulation of maritime shipping. We've talked about a
state fighting the Fed's over control of gun
legislation. In that state. But on the theory
that all politics is local, we're gonna take
a to a a little bit more of
a mundane, but still very important dispute over
1 teacher
getting fired in Massachusetts. So Kirby, why don't
you take us away on that 1? Happily.
So I am going to talk about a
case out of the first circuit. Called Mc
mckay versus Mad.
This is a case
Ben mentioned of a teacher in Massachusetts,
she is also active on Tiktok. So she's
a grandmother who is active on Tiktok and
had
posted 6 different tiktok posts, which I would
describe as Facebook memes. So they are the
kind of thing that my late grandmother who
was very sweet and very conservative, but also
surprisingly spicy on social media.
Might have posted. So they're a little bit
cra, a little bit crude, but not outside
of the mainstream of kind of conservative thought,
I would say.
She
had posted these 6 kind of controversial tiktok
posts under the name Nana Mac 4. Did
the Tiktok account did not include her real
name.
After posting these
tiktok put memes,
she was elected to
the born school committee in Massachusetts.
Later, she was then hired in a different
town about an hour away, hanover, Massachusetts as
a business and math teacher.
Shortly after she was hired in hanover,
back in born, where she was on the
school committee, someone,
brought the school committee, made school committee aware
of these controversial tiktok posts, and it became
a little bit of a hull balloon there.
They scheduled a meeting to discuss it. A
local paper ran a story about
herbs post son tiktok, and there was, you
know, a a number of complaints.
After this, the the drama made its way
to hanover where she then had post started
her job in the school year she had
hired in August, and then September had started
her job as a a high school teacher.
And she was ultimately
fired. It expressly because of the tiktok post.
In the District court, the district court granted
summary judgment for the defendants,
that
she
applying AAA framework
from a case called Ga versus Sub bios,
which is about
first amendment retaliation in the context of government
employees? So when can the federal government or
or not the federal government? When can any
government
fire an employee? And and how... What kind
of considerations? Do you have to take about
speech? Is it part of their job as
an employee? Or is it kind of speech
they were just making as a citizen outside
of their job.
And the main question on appeal
was the was the district court right to
apply that Ga city framework?
Or was this more like other kinds of
first amendment retaliation cases? So typically in a
first amendment retaliation case. What you have to
show is 1, you engaged in speech protected
by the first amendment.
2, there was some adverse action taken against
you by the government, and it... That action
would have deter a person of ordinary firm
from continuing to engage in protected speech,
And then third, that there's direct c sensation
between the adverse action and the speech that
you made. And what Miss Mc mckay argued
is
this should be just a normal first member
retaliation case. This was speech I made before
I got my job. This wasn't the kind
of thing liking Ga where the speech was
made as a part of the person exercising
their job duties, and it really makes sense
where, okay, you... I'm I'm treating you as
employer employee.
And how... This is this is relates to
how you are actually performing your job, and
we can take employment action against you because...
You know, you're... Just because your speech is,
or or part of your job is speech
doesn't mean that we can't, you know, fire
you for it if it's part of how
you're exercising your job.
The first circuit said,
no. She was wrong and that... In a
in an opinion that I... I'm interested to
hear the rest of the pan thoughts on.
It's a little
more flip and style than I like in
a a legal opinion.
The judge refers to this as a sq
and kind of makes editorial sizes that she
didn't take her
termination on the chin,
just some kind of
style that doesn't resonate with me. But
the the first circuit said,
the Ga city fit framework was the right
framework to apply.
And, there, what you were looking at is
did the employee speak as a citizen on
a matter of public concern?
Second, did the government entity have adequate
justification for treating the employee differently than member
of the public
and third was the speech a motivating factor
in the adverse employment decision. Now here,
for the first and third factors.
Clearly, this was, you know, she was speaking
as a citizen on a matter of public
concern because she wasn't even an employee yet.
So this wasn't part of her job in
any way.
And then for was the speech motivating factor,
the the school said, we are firing you
because of your Tiktok post.
The question really was kind of more of
a balancing
between,
did the government have a sufficient interest? Did
the school have a sufficient... A sufficient interest
in minimizing disruption
to take this adverse action based on her
speech. And the first circuit said, yes, they
they did that there was a concern that
she was going to make the school
you know, unsafe environment for...
Lgbt students or minority students and that this
was a sufficient reason for
the the school to take this
action of terminating her employment.
And as I've probably kind of revealed from
my recount of the case, I think this
is pretty problematic.
I'm speaking to a lot of Gen years
who know that,
you know, your your public life or your
social media lives starts very, very early now,
and I don't think the court kind of
briefly touched on this, but I don't think
there's a way to draw a principled line
for at what point is it too far
back to look that you're going to be
disqualified from government employment for your...
Potentially your whole life because of something that
you said un wisely on social media.
And, you know, although this was someone who
was you know, older and a a grandmother,
and I think, you know, probably, it was
an era of judgment for her to be
making these kind of posts, you I don't
see a principled way to distinguish that from
a situation where somebody, you know, who's a
college student and and says some things that
are... In inc,
then
that can create employment problems for them in
the future. I see that as pretty pretty
problematic.
And, Danielle, I know that we were talking
before, we started recording that that the style
of the opinion also struck you.
Yeah. It did. You know,
the
the flip nature that Kirby mentioned struck me.
But I I will confess the thing that
stuck out most was actually the headings in
the brief.
They are table setting, the fallout, the main
course, just really not the sort of thing
you normally see in a judicial opinion.
And we were chatting, like, do we think
this is something the clerk wrote in, but
it seems perhaps this is maybe just this
judge's style?
You know, I I will confess it's a
little bit off putting to me as well.
I think there's a fine line between this
kind of clever in opinions that we've been
seeing more of,
and opinions that are not taking seriously the
very personal interests at issue, whether you agree
with what she said or not she's entitled
to have her day in court and something
that, you know, when I was clerk was
really drilled into me by my judges is
that we need to be very respectful of
that. And so
You know, who... However, it was written, whatever
the editing process was,
III agree that it just sort of didn't
sit quite right with me. And, you know,
something else that jumped out at me about
his opinion Kirby is that
They went out of their way to rationalize
the idea that, like, we're, you know, we're
looking to her previous, her pre employment post.
That's a... K under Ga, we have all
of these reasons, and then they had this
separate point where they said, well, and, it's
actually fine because she sort of made the
statements again. Once she was employed. And the
rationale they gave for that was that at
this school board meeting,
the statements came up, they were talking about
it
and miss Mc said,
I apologize for the statements or I apologize
for for how they came across loss, but
she didn't actually disc claim the statements.
And the court looked at that and said,
well, she's not claiming them, so she's basically
reaffirm them and making these statements again went
she's a government employee, and that seems like
another
concerning part of the test that they're applying
here. I am so glad you raised that.
That really stood out to me as well,
and it seems like you could have situation
where
your boss calls you in basically and says,
hey, I see these social media posts you
made a couple years ago, and I think
they're they're kinda problematic. Do you still think
those things? And you say yes. And then
essentially, that's like you making all of that
speech on the job, which just seems crazy
to me. I'm glad you raised that. Kinda
And Sean, you're,
a frequent participant in the the social media
space. And I follow you on Twitter. And
I I think I've ever seen anything.
That has offended me or or or wanted
me to disrupt the school environment. I'm curious
if you had any thoughts arising out of
your own experience. You know, I think what's
Ironic about the tone that we've been talking
about judicial opinions is is that I think
some of it is driven by social media,
which is that if you have an opinion
that's a z or or at least in
your own mind,
it gets shared, and people who are in
the know, you know, say you're really clever
and
you know, like like, I think any sort
of writer who takes pride. You want people
to say, hey, this is cool. And so
something that sort of get you noticed is
to use these kinds of
tricks. And I think there's a couple problems.
1, the number of
judges as true of people who think they're
funny is probably far greater than the number
of you who are actually funny, and it's
even harder in the judicial context where we
are basically on pain of contempt forced to
laugh at your jokes, whether they're funny or
not,
harder And so I think there can be
a little bit of an echo chamber of
if you're only surrounded by people who are
sort of
told to tell you or make you believe
that you're funny, you believe that you are.
And second, that there is, of course, a
push towards accessible writing, but I think there
was a difference between clear writing and flip
writing.
You know, you have people like Judge Sutton
who are maybe not, you know, the funniest
in their opinions, but are remarkably clear and
use plain language. And you can understand what
they're saying.
And then there are sort of the writers
who I think think they're the next elena
C, who is actually quite funny and also
a very good writer and who can do
that,
but it's also 1 of those things where
it's a really high degree of difficulty unless
you're are certain that you can land it,
you really shouldn't try.
And there are some great examples of funny
z in opinions. You know, the classic example
is John Roberts had an opinion in the
Supreme court, which was about whether At and
T can have personal private and the Court
unanimously held a Didn't. And his last line
was we trust that At and T will
not take it personally. And what mit it's
not only funny, but it's good because 1,
it has something to do with the case.
It makes the point he was trying to
say, which is that you know, At and
T is not the kind of thing that
has personal anything.
And second, you're not punching down. You know,
At and T will not have its feelings
hurt by you making fun of it. The
same way it would be, you know, an
individual who lost your job.
So you just really have to think hard
before you deploy these kinds of rhetoric I
I think Sean is right that the court
was definitely writing here for a broader audience
in a way that hampered the opinion, but
the where... The place where you can best
see it is actually a place where I
agreed with the court on the on the
substance,
though not the tone, which is a footnote
in which the court scribes qualified immunity as
follows.
For those new to all this legal legal
mum jumbo, qualified immunity is a judge created
doctrine, which lets public officials off the hook
for money damages when they decide open legal
questions in reasonable will ultimately wrong ways, which...
Yeah. That's right. But again, the fact that
it starts with for those nude to all,
this legal Mum jumbo, I think is a
clue that the audience that the the court
was writing here for was perhaps not
the parties and lawyers who are going to
be referencing this case later. And, Sean, I'm
also glad you brought up Judge Sutton because
another thing I like about his writing style
is that he very often acknowledges when things.
Are difficult,
and that it's not always easy. And I
think in a case like this. I mean,
there... It is a tricky issue because if
you're running, you know, a government institution like
us are school.
You know, both of the jurisdictions and issue
here are more affluent, very progressive areas in
Massachusetts, 1 right across the bridge and Cape
Cod, the other on the North shore.
And so, like, I could definitely see, you
know, if this teacher comes in, and she
said controversial things about Lgbt, trans issues,
and immigration and race, that it could cause
a problem. But on the other hand,
obviously,
if she were saying that in a different
place
or if she had viewpoints that were more
con
to the people that she was, you know,
living near,
then it would be less of an issue.
And so there is implicitly sort of a
He veto or viewpoint discrimination going on here.
And I think that when you then have
a judge writing an opinion that's kinda dismissive
towards the plaintiff
you know, she's compounding that viewpoint discrimination that's
going on because she clearly also doesn't, you
know, share the views. Of the plaintiff in
this case.
And I think that it would be
not just a better opinion. That was more
respectful, but I think that it would be
more in line with the first amendment to
acknowledge, like, this is a tricky issue where
we've got government employment on the 1 hand,
but also free speech on the other, and
to take a respectful tone that doesn't compound
the first amendment violation, I think would have
been the preferable way to go about it.
Well, thank you all so much for taking
the time
to to chat with us about these cases.
Thank you again to Hogan Levels for hosting
us.
And on behalf of my colleague Anthony Sanders,
our our regular hosts. I'll conclude just by
encouraging all of you to get engaged.
So thank you to everybody for coming.
So for those on this half of the
room, I guess, they're the summer associates here.
It's like bride side groom side.