Transcripts For CSPAN3 Oral 20240705 : vimarsana.com

From their private social media accounts. Thntiffs took legal and won at both the District D Court e u. S. Court of appeals level. The School Board Members then appealed the decision to the u. S. Supreme court and because this is now have through june to issue ruling. The oral argument is about an hour and 40 minutes. Please the court, indivua who hold Public Office are still private citizens two. When acting and their personal capacity they retain the first amenen rights to decideho can participate in the Community Discussion that they host at their own property. Th they e ee to block users from theipersonal social media pages unless they chose to operate those inthe cup is e official capacity. The only woab task to determine the capacity in which they actedis to ask whether eyexercise a duty or authority of their job. The answer is plainly no. As rethe state itself does not control or even facilitate their operation of e pages. The officials yielded greater right or privilege that y other private citizen denying accesstotheir own property. The nintciuit instead held even if an official was not actually doing her job it would exist so long the pages anit look like she was brewed that type of reasonable observer inquiry capable of consistent appcaon. It is also fuamentally misguided. Official power to ock does not include the peance at al respondents insist that the petitioners were intheir job so because they use the pages to communicate about their jobs. Th the type of excessively broad job descriptn is court has repeatedly rejected because officials to operate in either capacity the state action taskshould require a clear and objective eviden capae differencing between the two. That is essential preserving the robust individual liberty thdoctrine is led to protect. I welcome thiscourts questions. If you have the exact sa exchange here, but from an official site or school board, uld it make a difference yes, your honor, that would be exercising okay. Letasme the official has discretion withthe option to either do this onthe school site or the School Board Site or a personal computer. What isw the difference . Your first type is the power that is being yielded is e power to exclude someone from government property. Just like ifit was the government building attempting to prohibit them from teng in the actualca what is happening is being excluded from private property. Private propertyis private. Lets talk about that briey. What if you ce the site l with the petitioners computer at ho t it is thE School Board si is not a government computer. The question is who controls the accoun in this case it is the account of the account that they created before they held office and an account they will continue to hold after th leave office. Is this a site site determination or message by message . In other rd, say you have site that is used every now and then for what you might chacrize as official announcements. The rest of the time, it is like my child got a blue ribbon orSomething Like that. Do you look at each episode of ocde, or whatever as governmental because they use it for governmental things from time to time, or do you say you go through the whole analysis the specific conduc that is being chalng is the blocking. The question , is the blocking the official action . In general think that will be answered at a sitewide level, either government accot personal account. That is true, even if meof the speechcould be viewed as official. If, for example a Government Official made an announcement at a mpaign rally, the announcement, the speech might be viewed as official. That would convert a Campaign Rally into government forum. I am not sure i follow the answer. What peenge of governmental o blocking backandforth do ou you have to have before you y every blocking ise should be characterized with state action . I dont think it is a percta, your honor. When a public offialuses personal property engage in speech, the right way of thinking about that is all of that speech is personal. I concede all of speech on that site yes. That is speech that they n engage in. I agree that there are certain n thingsth they can do that would be governmental. For example the office using the example of on the social mea page. That is inherently governmental and if they are excluded from that, that would be state action. I would agree that is true whether they do a page in general or st once. Unsel, i think the chief asked portant question, lets break it wn facebook is somewhat easier because people cabe blocked omommenting, but theystill have access to look at the information. Lets assume that there is something that went wrong with the city website. The city is noasking the councilmember to post all of their evacuation programs and to have comments with respect to citizens who might need assistan and they converted it to an official site. You said if it is mixed, personal, and business, then it remains personal. On thathythetical, i would agree wi the state action. E state would be responsible for any blocng that the individual had done. Yes. The critical as why is because in your hythical is it identical to the sixth circuit or the Authority Test . You use the wordcontrol and facilitate. Tell me what is the difference in what you are proposing. We think thauthority is the right task. E hard question is figuring out if youre exercising duty or authority. Corol and is the way to figure th t. So is much narrower. It defines something stated by law. Frankly, in my experience there isa lot of customary acons that are not fined by law, but they are expected of Government Officials. Telling the mayor to post this information. Nobodywres that in the law. We dont dispute that point. It defines it much more narrowly. If they do, we do not agree with it. The critical point, in your hypothetical how we kn it is action is contl. Your example was the mayor told the city adnistrator to do it. The mayor coulnot have told the citymister to do it because their personal property. That is not atis happening. There is no evidence this case what do we do with what was then twitter, i will continue to call it twitter becae thats what it is here. What do we do with twitter where the blocking blocks, especially now blocks access. Previously you could look at the twitter account and you could t st. What happens now when you do not have your own account you cannot even look. If youre blocked you are t permitted to look . It depends on what youre being blocked from. The critical point is that my clients, all their speech was speech that they could not perform in their individual capacity. Even though they are Government Officials, they have the right to speak about the ve government in their individual what if you showed a Facebook Page two 1000 people and 999 them would think this is an official pa, under t your test it would not matter. It shouldnt matter and i will give you two reasons why. First, the challenge here is they are challenging blocking and my clients power to oc here is the hypothetical that wi ke that clear. Iminyou are a Police Officer and you finish ur shift and youre running late pick the kids up from school. You run down the street in your unorand you push someone out of the way. Everyone on the street assumes you are inyour job and in hot pursuit of a felony. That is not state action your acting in a personal capacity and your power to push someone out e way does not is not thpower of uniform. Sadie account mager has a page and the account mage put the seal on it and says this is the town nar page, this is the ple to look to find information abouwhat the town mag is doing and this is the place to expressyour views on important issues th come before the town nar. There is thg personal on the ge the town manager does not use y Public Resources to create the page and there is nothing in thjodescription that says he has a du to have such a page and he is not relying on y ecial authority in creating this page. You would say in that instance the town manager can blk comments based on a viewpoint. The town manager can block anyone who expresses criticism of what the town manager is doing and thereby create the impression that evyo in the town thinks the town manager is doing the right thing. With one possible caveat, when yosa the town manager page, if u say this is the pageirunning in my official capacity, then i wod not take th pition. That statement has content behind it. And you say this is the town manager page, what you are admitting is the town managers boss can te him what to do on the ge. He is admitting that it is a governmental page. Ifhe says, as i think your hypothetical was meant to say, saying i am the to manager, this is ati think, this is where you want to talk to me. That, under this Court Decision , is what anGovernment Official can do in their personal capacity. Atmeans President Trumps itter account was also personal . I think that is a harder question because erwas use of a government stafr to help them on thpage. Suppose that there was a. Suppose they gave every ts indication of writing this tweets himself and suppose he posted them so there was not a staffer involved. Yes, your honor, heis engaging and his First Amendment rightsto talk about the goveme in his individual capit he seems to be doin a lo of government on his twitter account. Sometimes he was announcing policies, even when he wasnt, i dont think a citizen would be able to understa e trump presidency, if you wi, without any access to all the things that e esident said on that accountit was an important part of how he yielded his authority. To cut a citizen off from that is the t citizen off from how the government works. A couple things about that first, President Trump s done the same thinfo maralago or a Campaign Rally. He gave every one of the spch at his personal residence it would not convert his residence into government property. In terms ofople being cut of people do not have the right to acce personal property. It seems a ttle foseon the wrong end of the stick, if you will. The fact that it was his personal property seems nehe here nor there. Really he was doing vernment on it and wielding his authority on it and announcing policy on it, it s part of the way government operated. Hereswhi do not think that is quite right. Imagine he put on his page a clear disclaimer this is my page that i am using to talk my personal capacity to talk about it. Every single word the twitter account why shouldnt require that then, if you are right . It seems to me that the problem we are having is even if we agree thyou that government ficials can operate in their personal capacity and official capacity, why shld they get tohoe ether or not they are doing one orthe other without saying making a clear disclaimer or making it clear that this is actually happening the dark personal pacity two reons, one conceptual and one practical. The conceptual recent is because the First Amendment does not compel speech it you cannot have it both. To the extent that we know and agre you that the person can operate in or the other, i do not undeta why it would be a compulsion to have them do so clearly. Bause, what is being said is if everyone agrees that my client said this intheir individual capacity and have the First Amendment right to do so, but they will lose those rights unless they put up a disclaimer im not yi lose the right. You can go down road a a or b, you have the freedom to do that. The question is hodo we know what you have chos . A condition that is being qued to go down road a then b. Let mealso give you a actical reason. You are setting up trap for thunry. There are a lot Government Officials in this country, they probably will not read the courts decision. The only way that they can exercise their rights to exude people from their person pperty is to include a disclaimer, some ofthose be people will not it and they will lose their First Amendment rights. That is the exact oropposite of how it work this court adopts assumptions and rules that will protect the First Amendment. Those are boundaries to make sure you do noinadvertently lose your rights. This is the case where there are First Amendment interest on both sides. There may be first amdmt interest in protecting the private speech of gornnt employees. There are also First Amendment interest in enabling citizens to access thimportant parts ofheir government. I think it mas these cases hard is that there are First Amendment issues all er the place. It is entirely in my clients control whether these pages are used in didual capacity or official capacity. Whatever rsamendment interest is on the other side week. We just have to put up a disclaimer and their right evaporat. On the one hand you would be opng a rule that every Government Official in this country runs the risk of inadvertently losing control over the property because they did not put up a disclaimer area on the other hand you have a disclaimer and the clients are blocked and Everything Else happened the same. Comments . Justice alito . Isthe act that is at issue in this case, the person who owns the Facebook Page says or is at ise, the forumso to speak, that is created by enabling comments . The act of challenges unblocki from the page so it is thforum, so to speak. E specific act thats being challenged is being blocked from the page. How you characterize the page whether you view it as a form or not is underlying. It could a private forum or could be bl forum. The First Amendment issues on thother side are the free speech issues of the people who are blocked. Right. They do not ha any first amendm interest in accessing private property. Th was this courts decision. If it is a private accoun there is no question that this is not owned by the government or coroed by the government. It is in my clnts power whether to open it up the a public. That is why, they havevery minimal interest and it ul be wiped out with a disclaimer and there are a lot of good reass y the court did not require that. The other thing i will say about a disclaimer, if there is concern about confio the right place to do that is by the state regulated. Raer than this court adopting a rule of cotitional law that the first amdmt of its owfoe requires a disclaimer, the much better way to handle it is the state of california, if they think there is a problem d people are confused, they caregulate. They can regulate my clients because my clies e Government Employees, the state has the power to regulate in thatcacity and that is how you do with th issue, that is especially true and go back to a poini made earlier, blocking does not turn onthe confusion. My clients can block them whether or not they were confused about the page images like the officer running down thstreet. Justice sotomayo you keep saying that what matters is this user but a personal user and a government us uld do the same thing ually. I know atis important to the government as well, i dont know why that matters. If the issue, what it seems it is evolving withthis convsaon is whether is particular act in this context is Government Action or not not if its personal orbuness. If it is personal or business may inform ifwe have to take a co step or not but if it is a personal account, then we have to figure out if its inused. I think you said that, falited being used for governmentusess. That was the governments example of if a private acunt starts doing this on legislation , th ocess is governmental, ist it . Yes, your honor. Lets su a mayor said i am setting up a hotline for emergencies on my facebook or twitter. If you have an emergency, ll that hotline and i wi use the power of my office to set motion government response for your emeen. It seems to me that is Government Action. The state is facilitating, by the duties it is given, his abity to put Government Resources into action. The response to that phone call is vernment action. For example if he routinely uses our response to oscalls in an official way, that process doesnt become government faction . Could exclude sls, jews, whoever he wanted to exclude, lacks, women, because that is a social account. Imine if mayor bloomberg as an t of charity set up in p his capacity a inteetsystem like that he paid for it out of his own pocket, no governme resources were used, no one in the state of new york tell him how to run that was his own personal exchange. Th would be personal y isnt that accot facilitating his duties as mayor . He is using it to now put the resources of e vernment to us he, ke any other private citizen is helpinpele contact the government. Any private citizen has the ability to do that. E estion is if the Government Officials acting the capacity of the government thats that is if the individual hathe ability to put the mechanism into effect. Atis the backend. I conceded the backend responses clearly state action. For me is all intertwined. I nt think so. I think you can vethat phone system set up by a wealthy donor and that clearly would not be state action it would be private charitable giving. Just liketh court held, a goveme official could be acting in their individu capacity even when speaking about informatioth learn as part of theib. That does not mean they are doing their job. The way to find out if they are doing their job is tofind out if they are using gornnt resources and if the government cacontrol what they are doing, if they are ing something only the government can do none of that is true. To the contrary these pages, the usernames of e pages are mpaign slogans. My clients are electe officials who have to run for reelection. What they are doing is what officiall over the cotry do, they talk to their constituents to show what a good job they have been doing and y ey should be reected. I dont know why they have personal accounts. If they had a personal count theycod have done both things atis to talk to the an family without everyone in town talking to them. If this is not their Campaign Page thats like say their Campaign Page is ex officio of y ty if the user names of the pas, say they are Campaign Slogans that is a good atit is a campai ge. I anotr example is that they do not have aCampaign Page. They would have tobe the only two officials in america who decided not to have a social media page when they were running for reelection or these were those pages. Just to press on this a little bit anthen go back to justice thomasisoriginal question soi understand the answer. There is a person and th become a School Board Member and they set up a private account, so they are t using a preexisting account, they set up a private account. The only thing this account are related to thE School Board. It haweare having a meeting, d enda, the resolution, meeting me, minutes, job postings, ficial reports, all scolboard business. There is also commentary. The board would like to know what you think about this. I would like to know what you think about this. Please come to the meeting and please give your comments me on this page about what yo think of agenda item number three at the next meeting. Atis the content of the page. State action or not. That is something an individual can do in their privatcacity and there is no objective evidence with resources or anything else that they are beg done at all. Everything you said could ppen in the clients backyard. Evytng you said could happen if my client went to church and ask fellow congressman i have a difficult issucong up, what should i do . Enyou say control, i guess there are some officials with a line of command. A School Board Member, they are a school armember, they are the control. Why do you need somebody insisting on the content . Theyarthe state. Ey are state officials but they could be acng in either capacity it is a way of disentangling the two. If your boss can tell you what to do, then we know youre acngas an official. If your boss cannot tell yo what to do, th is subject to First Amendment balainthat we know youre acting in a personal capacity. In my case E School Board official, theris limited oversightthat is just a matter of state law. Imagine of the state of califoiahad a official webpages and they are all regular and by the czar he sa put up the state tt do this, that, and the other thing and dont do this. Noone would think that guy could tell my clients what to do. Thank you. Justice gorsuch. On your side in both cases we have profusion ofpossible st you have offered one, the solicitogeral has offered another. You now have time to ewon this case for a number of months and think about it, what is your be advice for us onyour side of the feed what test you propose. I continue tothink the best test is ok at duties and authorities. If there neither the exercise of du nor authority th not state action. That is all you have do to resolve this case. That raises the for the question of w do you know if they are duties or authority at th int we are not talking about the te we are talking about how to implemt the test. What the court should look li at is objective indicia and then detangling the twcapacities. Things like usof resources, exercise supervision and exerseexclusive duties. It will help yofigure out if this is actually exercising duties, or is it instead exercising First Amendment and talk about the government. How does that te interact in griffin in your review . Griffin was exercising the authorits his office. He was a Deputy Sheriff and he arst someone as a Deputy Sheriff. The counterexample is the hypoal i gave earlier, a Police Officer in full uniform runs do e street and pushes someone out of the way, but he is going to pick his kid, it may have looked li he is doing his job, but he is not doing his job and he isnot invoking his power, that would not be state action. No lower court would define that as ste tion. Thank you. Justice kanah. Stto prs on how you would apply the test. I am assuming the information that ulbe posted is not also posted on a government te. It is only posted on th personal site. This picks up on Justice Kagans hypothetical suppose the city manager on the personal site says we have w recycling rules, you have to use a blue bin, has to be at the cu d it will be picked up on wednesdays, if you have questions contact me, thatis only the personal site, not personal site, is that state action . There might well be an argument. I assume that there isa duty as a state official to announce the rules. Pele need to know po what the rules ar that is very important. When you describe how to implement the test in response to justicgouchs you said resource exclusive duties. Its important and thswhat local officials do is announce rules. If announcing rules, state action. In and of itself. You said local officials around the country need guidance and that is true. Making rules as part of what they do and they need a clear answer and what is that x i think the clear answer is, if is is the only place the announce that ruled that a state action. Announcing that you cannot park on evennumbered sis of the street during snowstorms, at is the same. Yes. If its only it is perfectly neto a announce it officially a lot of this dendon if it is reposting or excluse posting, i thinkon the announcing of rus. Okay. What about notices. Announcing notices. Schools are closed tomorrow and is onlyona personal site. Thats not a rule but a tice. I think inneral to take a step back, it is if y youre exercising a duty of your Office Announcer that is t good enough for local officials. I agree. Itrng to think through, i am say thats there exci a duty. You have an obligationto inform everyone that i agree. It can be a lot things that i do not want to go safar the esys that saysany kind of public that is too far. For most of the potheticals i think youre asking the line of questions youre about to ask. If youre llg people things about the rules of the ro at the government, you have a du to disclose but you cannot sprules on people or tell people not tell them things they needtoknow in the official capacity. The only place you announce that isa government account, i assume that likely wi be a strong that yore using the account for vement purposes. Personal count you met. Ye personal account. In those hypotheticals, almost s certnlyour boss could tell you. You are the bo, to get back to the point. In this case, yes. Not of thnext case. Just reminders. A remierabout there have been a lot of thefts and burglaries in the neighborhood, lock your cars if youre going away for a few days. It is only on the rsal s site. Yes. Th rt of speech is something you can doany private citizen can do it and Government Officials do not have a duty. They could do that in thei official capacity. A for that sort of speech you need something more. You need to see thatthey are using staffers, or the bosses artelling the to do it, the speech by itself is not enough. I think you distinguished announcing rules if it is only on a personal site from noces of government information, that iski of fuzzy. And reminds would not. That is right. That is practical o information that people will need, i think. I hope so. Mr. Mooppan , when you are having th nversation with Justice Kavanaugh and you are talking post by post. E chief justice asked you at the start are we looking at whosacunt it is or specific acons . It sounded like to me when you are talking to Justice Kavanaug i understood your initial position to be no more the account. Which is it . I think it is true you are looking at the account. What i told the chief justice at e d of the colloquy and us now just capitol , if you use the account to give notice or engage with the public, i agree at th point it will be state action. Threason why it is important to think abouthis at the account level is there isa lot of speech that might viewed as official. If it is in an official duty provide information to people like the hythicals that Justice Kavanaugh was asking, announcing, for example that i am going to sign a bill. Ng announngthat im going to appoint judge. Those sorts of things are things you could do, ev if you view those asofficial. It does not mean youre using the prerty where you make that spee, you can engage in that type of speech at a Campaign Rally, at a church, in the backyard. We are looking post by post, i think. If you are ing exclusive duties, i agree. I have a question abouthe word duty. What e point of talking about duty and authority . It seems to me that duty is es sometimes described as obligations, you described it as an exclusive government duty , a reent that appears in the brief. Sometimee are things you have authority to do as a Government Official that you are not required or obligated todo it seems to me if you had e authority to do it, why are we talking about duty . I think you are right. Duty and authority can flipside i agree with all that. I think authoritdo add something beyond duty. I think whatit is most helpful for is the of staffing, the use of resources, things like that that do not rectly go to the question of is duty but i wielding authority. Thatso of thing is relevant for two reasons. One, it is good evidence th you are wielding a duty or authority if youre using Government Resources for staffing. And it is possible that in some cases the mere use of those soces alone could be state action. I just thk using the word authority get in the sixth circuit case that seems to be what the opinion is. That is the value ofthority in the sixth circuit opinion. Ems like a weird way to deri it. I think about more as evence. I am losing a whole lot because i dont want to use the word duty and if i just say authit maybe that would pick up what you are tain about. I do tnot think you are losing, i think eyare both sides of the same coin. You articulated the task, Justice Gorsuch said that we have a lot of what is the difference with the daig between the government position and your position x their focus on is this private property that the puofficial is inviting you onto versus the authority, duty and the test that you do . I do not think there is an daylight between our positions. They emphase operty as initial gating mechanm where we view the fact that it is private property and it is relevant to teining if youre exercising duties or authitof the office. At the end of the y the case is cashed out the sa way whether you apply r framework or there is you end upin a spot where if youre usg a private account and you are not exercising exclusive function and you are not using Government Resources an government cannot control it, then you shldunderstand that to beacting in your personal capacity. Have the right as Government Officials to ta about their jobs in their person pacity and you should assum that when they do that on their own personal properey are acting in their person shion. At the beginning of yo argument you referred to unless mee is choosing to use their facebook account, twitter account, whatever in their official capacity. Justin kagans questions were getting to some of this. It is very difficult when you have an official whcan sometimes for a governor or President Trump it is harder hall then someone like a Police Officer whis a subordinate. Could start posting things inthis is official business of the chambers and that would not be okay. [ laughter ]. If governnewsom decides to do it he has the authority todefine it. I would think in your clients context, they do nohave full g Authority Just as board members. Le the board said we have taken a vote and you are the one who are the communication person. Then you would look at th source of authority. If, in that contt, i gus it is official by official. I am not understanding for your client why there would be an argument. It seemed like you were conceding and talking to ste kavanaugh about official announcemen. I if for ample there was a slush fund, you use money for inyour job and my clients use that money so i can buy a facebook account or use advertising on fabo, i dont think my clie ould act in a shion. I do agree with you, on e control piece of using control as evidence whether it is governmental or not, itbecomes harder the higher up you go because it is harder to idtify a superior who will tell you what to. Take the governor of cafornia. He does have a boss, itis the people of calirn. They can amend their constitution is a you as the goveorwhen you are exercising as an official capacity here is what he can ancaot say on a social media page. They could not do that r this sort of page, page thathe owned before he was governor and he will own after he is governor and a pace that he uses personally. Justice jackn. I i guess im still not clear why the ownness is not on the Government Officials tobe clear about the capacity in which they are operating. I take your point that you can have an invidual who is a public ofcial and they can operate in both worlds, official and also rsal. To the extent that weare having a prlem, or at least i am hang a problem, it is becaus we cannot identify ether this action is occurring in one wod re than another. We have said in cases, we recognize that even though Public Employees have a First Amendment right to spk,they can be limited. It does not seem responsive to me for you to say theyhave a First Amendment rit, so they s bearnoresponsibility in making clear as to when they are operating personally versus officially. Can you just say more about that . Short. I willsathree things. The first , what they are objeinto is the blocking. This is not a ca where they are compining, that th thought it was official and if they had known it was official Something Else would have happened. Everythi this case would have been exactly the same that paper is plastered th disclaimers. I guess atim trying to unrstand is when you isolate the blocking, you are right, that is the claim, wehave to think about, as Justice Kagan pointed out the implications of that for those people who want tothe page. They are beocked from either commenting or seeing information that is being posted on this particular page when the official says, that particular page is my private page and im operating in a private capacity, then i suppose we have one of answers. If we be that page is operating as the official government page and the person is being locked, then we have different set of answers. The question is, with respect to the blocking, is it happening in a personal or official capacity . Why woulit not be the public ofcis responsibility to say , if you aron this page and you are eithseeing or not seeing things, understand is a personal repository of information. I guess wh i would say, if n see that my clients could have doneth in personal capacity with disclaer the question is, where in the constitution are they obligated t up a disclaimer if they want maintain those rights create how are we supposed to kn . They have the burden of proo , they are the plaintiffs. The burden shou on them to show the oppositenoon my clients to disprove it. So you are saying, a public official can just make a decision about whworld they are operating , not let yone knowand it would be the are violating my constitutional rito determine that you are operating the official capaci. In a case like this where there is no jeive that they were doing it in a governmental role, there is no contro what about the page and w it looks . Appearance is consistent with a Campaign Page. A pace that look no different our page, the judges are lit. Can i ask one more question . Jusoda mayor came up with the private hotline to seek emergency help that i thought was interestin i had not thought of itfore. I understoodyoto say the response the governmentshes to your house as a result getting the communication would be offici tion. I am not clear as to the blocking that woulocr by the official from e official that they do not like wi respect to a page th was designated as this is the opportunity to callfo government help. I am creating this cebook page so that people can havea straight hotline to Government Resources. The person, i is thing is a private page so i can block latinos, i dont want any latinos on this page. Is that a oblem . Is that state action or not . If thats all there is i would say it is not. A private citizen can set up exact same page. This is a pato get you access if th did, wouldnt that implicate all the lines of think about whether or not a private tin is actually acting in a way that is attributable to the state . We dont just stop it i dont thk it is being met. The joint action between the private party and the state, where you are lookat, this is facilitatingstate service , you think it would not apply . Just think a wealthy person in the city said, i want to make i more easy for people to call and get access to g government and sets up a page. That is not joinaction that is independent. Thank u. Thank you, counsel. Mr. Jersey. Weagree with the petitioner that du d authority is the right way to figu out what capacity a public defendant is a acng. We think they should focus on a subset of cases regarding a denial of accesstoproperty. In those cases if the defean is exercising and offici duty to provide access li sting an official School Board Meeting, of course the state action, it does nomatter where it happens. For othekis of duties and where its ambiouis the kind of thing where a private citizen can do but also with a broad descriptioofthe official responsibilitie, think the nature of the prer should beall dispositive. If the defendant denies access to government property, probably state action. If the defendant denies acce to her own personal prer, she is probably ti and her capacity as a private property owner, not as an agent of the state. That framework, especially insofar as it prid a default rule for hard case we think it is reconsistent with the purpose of the state action doctrine, we will resoe ese cases today and he others like them and we will oithe need for this court to set forth a one size fits all broader duty and Authority Test. I welcome esons. At exactly is property . The contra lks about terms of services, i guess, i am no a facebook person, i assume that they would not consider the service property. What extlis the property . It is a form of virtual property. It is the account th you can post speech, you can have conversations, you can openit up to everyone or just a friend. It a form of virtl property. I hate to use the word forum, because that term is overad in this context but it is a virtuaforum of sorts. It is no difference then a hotel that offers itballroom for rent to people and you might sign a contract and have terms of service. Wh you take that hotel you have certaideees of control. You have one stick and a bund of property sticks and you cod oose what you do. This is a virtual space of the same sort. Just to follow updo you think you have to take into consideration the role of the provider, facebook, since they can evict you from this room th u are in . This accou . Not in these cases. I agree there are some difficult questions astothe extent of ownership and control over virtual property as between facebook, twitter and petitioners. What should be undisputedan it is undisputed is that the School District has no ownership or control over these pages and that is the relevant question in these cases. What if something looks an awful lot like an official event but is not labeled and is held on prive operty . I think the question in these cases is constitutional. The court says the constuon deals with substance and t shadows. I think the appearances are the kind of adow that should not tter to the substantive question on whether to use the petitioner test. It is the actualduty and authority been exercised. I think the court has rejected, the extent, invoking reasonable observer test, this was osin a variety of contexts, most recently in coach kenny case, maybe to a reasonable observer a lot of people would have thought that coach was acng in his official capacity. But the court did not rely on reasonable observers, as it saw the fax, delved into the fax. Lets say in a all town the population is divided over anissue. Lets say whether they will close do E Elementary School and send the children to another school 25 miles away to save money and the mayor is favor of closing down the school. The mayor holds a meeting on public property aneverybody can go and express their vis. After that meeting e mayor says, that did not go well. The an awful lot of opsition, lets have another meeting, th time we will have it on my farm and i will post people at the entrance and we will exclude the people who spoke against my proposal. Isthat allowed . The mayor is not nning for reelection, he is term limited, its not a campaign. If i derstand it, and if i can assume, when he does it on his farm he isnot using Government Resources, Security Guards are paid out of his own cket, totally fine, i think. Let me further assumethat the vote of the people on th farm meeting is not sohow ncsive and they do not have the authority he is just tang their views into account. It is no different than elected ficials anywhere or et Government Officials who choose to speak to republicans or democrats in order to get views on what they audit do when they exercise their official duty. I understand you can think of a lot of odious behavior by Government Officials being discriminatory anwhthey speak toand whom they listen to. At the end of the y the constitution does not prohibit ious behavior by private citizens. I want to return to a point, which i think is one of the most important points of the case which is, a lot the hypotheticals that the other side ves about Public Officials behaving dl if yourr narrow the state action doctrine, can be taken care of by their government employers or e state statutes. The government has much greater leeway to regulate than government as sovereign. Pl this court has decided a number of cases in which Government Employees acti their private capacity could nevertheless be related by private employers. Ure worried that there is not a code of conduct by officials and how they can support this in their rsal private capacity, such a code nduct is better the comes from the question that Justice Kavanaugh was asking, do you agree wi e answers to all of those questions, announcement to rules, pocies and what have you . I think that is bacay right if the duty isto provide access. If there is a duty say that yomust promulgate this information or notice in the coen no. It isnolike there is a duty at says you have to announce the road closures, you are in charge of road closures and u think it would be a good idea that citizens know so you announce the road closures on your site. If there not a specific duty to announce e road closure, i gather thats what you are saying, if you choose to do it your own site that is the rtof thing where we think that ke that is not. Mooppans answer. He said as long as there is not a government site whe the road closer is announced then it would be state action. If there is a duty to announcece is not a duty to anun, you arincharge of road closures and you thinits a good idea if people understa where the road closures were. I dont want to speak for mr. Mooppan, that sounds ke the kind of thing that a private citizen can do. Lemegive you an example. Let meuse my example. I thought we were starting off from a point if the only place th mebody can do where the road closures e s on your private side, mr. Opn said it was ste action, i was going to go on from there but you seem to contest that. Our view is that if there is a specific duty it is not a specific duty, duty does not rklike that. You are in charge of road closures, that is urduty. If you are not obligated to talk about road closur and tell the public about ro closures, if you do it on yo private site, then you are probably acting ina personal capacity. Now i age there may be ties to inform, in those cases if the only place you do it is on your personal site that might be state action whereas if you on both sides it would not be. E the sixth circuit seems to think the duty has to be written. Many duties are customary meaning, u are right, think if you are in charge ofroad closures, i have very little doubt that there is a written law that says, you must inform the public. That is what everybody does. Itis what tradition and process has provided for. You are ggting that that would not be taken into account. Not at all. Quite the opposite. We agree customs can defi the duties. You do not agree th the sixth circt narrow view at it has to be a wrten dutyas. We do noagree with the sixth circuits view. We agree that the custom is formed in the duty of the fice. If there is a duty inform in the discharge of that duty will bestate action no matter where it takes place. Where there is a doubt, if what you are doing is the dying access topersonal property, you are not acting in the capacity as a private property. Thank you, counsel. Justice thomas. Justice alito. Would it be practical to acquire or adopt a ru that puts a lot of prsure on Public Officials to separate eir Facebook Page, just to take that example. And official can have a personal profile, and official can have a Campaign Page, and official n have an official page. Those sound li wonderful things that a State Government can impose as is capacity as an employer. I do not think this court should impose it as a matter of federal law and it should not be the ca that the constitutional imposes that ki of precondition in order to exercise your constitution right. Mr. Mooppan said it woul be asking too much from Public Officials. I think it woul take the example that Justice Jackson brought up with disclaimers. You may think all you need to do is put up disclaimer that it. How good is it . Thank you. Justice sotomayor. Justice kagan. Justice kavanaugh. I think i will go to what Justice Kagan was asking abou the road closures and e rules. When i was discussing with your frnd, we were assuming that it wasnt also posted onthe government site, it was only posted on the personal site and then asking where does it cross the line. Why does it matter that it is posted on the goveme site or not . I guesit would matter because that would inform, just as you look at the facts of the case, whether you are acting in your personal capacity or on officialcapacity, which metaphorical hat you are wearing. If you scrge a duty, assuming there is a dutyto inform the public, if you discharge the duty on the official site and you amplified on your personal site, odds are you do it on your personal site you are doing it in rsal capacity. If you are blocke and you dont inform the public about the road closure anyou only do it on your persalsite you are probably discharging your official duty. It sounds like both of you wod ve a safe harbor if you are poing information on your personal site, that probably ll not be considered governmental. Nm that is righ i take the point that the other side makes that it might be de underinclusiveinsome cases. Think it i think i take the point that the other side makes, that that might be underinclusive in some cases,bui think thats better because that is the purpose of the state action dori, to preserve an area of individual freedom and t hold the state responsible for nduct that really cant control. Thank you. Justice barrett . So to Justice Kagans questions about announcements, et cetera, if individual posts on a peonal site can also be on a peonal site can also be a duty to make annocents, is that a situation in which your property framework, where the presumption is just defeated because its a personal accountingwhh you sometimes used for official purposes . Thatsrit. As i mentioned at the outset, the offialduty or authority you are exercising is one that requires access, like noticeancomment or official School Board Meeting where the public can speak, then yes, th ate action matters where you do it. You are blocking someone from accessing that particular s action is going to be state action no matter where it occurs. The word duty is important to you so i asd mr. Mooppan about this and authority. Youre really leaning onto the end it seemed inyour interchange with Justice Kagan at you saw difference between duty and authory. I think a duty, its less obvious in these cases and more obouin the next case, where hes a subordinate with a supervisor. So duty is important because you needtoknow, is he actually discharging the in he was suppedto do . An elected official like the School Board Members dont really have mu the way of those duties but they do have authority. They can invest the states power to do something that someone who doesnt ha the state power cant dopercocet in that sense, duty and authority might be different. For exame,that was a private Security Guard at the Glen Echo Park about the reason he got his Deputy Sheriff certification was so that he could make his arrest in his keeping out of the trespassers more effective. People listen to Deputy Sheriffs in a way they dont listen that was authorit t duty. Thats right. Justice jackson. Can i just go ckto Justice Alitos hypothetical, which i thought was really good, and ask this question . Suppose the puicmeeting doesnt occur. So you ha e mayor of the town and theres this controversial policy, and there is no Public Meeting to start because the mar ars that theres going to be quite a bit of acrimony, with people who want to come out differently than the mayor does. And so instead ofthe Public Meeting, the mayor says privately, im going to have anything on oufarm, or maybe even announces the meeting, that we are only letting in op who are likely to agree with my view. Same result, no state actionin that situation . I think probably state action in that situation. Think its something that Government Officials actuly do all the time. They might not want tomeet t with even their own cotituents who disagree with them. They might speak onlyto Democratic Party meetings and only ta edback from Democratic Party donors, and you know the solution for that, as i said, for elected officials, maybe the voters, and for appointed officials and employees, the state as employer can regulate that kind of behavior, even if its in its persalcapacity. It doesnt have to do so specifically. Can lieve that, say the mayors duties incle receiving feedback from the public, and if there s a duty to get feba from the public, i understand you would be saying that he would have two. And even if it was on his fa, he couldnt block people or it would be considered an official state action. I think it would have to be a pretty pretty specific action for that tonstitute state action. The duty is to out in general to speak to nstituents. I think thats exactly the kind of case that our heuristic, our test has a lot of purchase, which is its something that a private citizen n do, talk about a policy, get vis on a policy, advocate for a policy, analso within a sort of broad coepon of official responsibilities, then i think the natu the property to which access one final question just as a sort of theoretical matter. Does the government have an concern about the potential privatizatioofgovernment functions that could occur . I suppose im little worried about city mayors deciding to sort of shape the debate ofthe people in their community by having their meetings in private places so th others in the community cant comment. That seems me problematic as sort of a threcal matter, but the government ithinking says as long as the yo chooses to do this on private property, then he can exclude whoever he wants, because hes doing it in his personal capacity. Yeah, in the brickand mortarwod im not aware of this being a problem, if it is a problemink its best handled by the state, which can regulate its employees in the way that a state is sovereign caot. Thats the be way to handle those concerns, not a rule of conduct from this court as a matter of federal constitutional w. Thank you. Thank you, counsel. Rlin . Mr. Please justice and may it please the court, i have three potsto make first the District Court found factual finding based on petitioners owteimony that, quote, receiving feedback from constituents important part of their duties astrtees. California law, both decisional and constitutionaland statutory, that thusbylaws, to which ill return in a moment, and the content and aparance of the page confirms the District Courts finding that these pages were, quote, used as a to of governance. Because the trustees were doing their job when they maintained anth blocked dr. And mrs. Garnier from thospas, this case fits comfortably within isreports declaration west and lugar that state employment is genellsufficient to render the defendant nettle. Second, the record in the District Court contains onn records entire facebook feed from the time sh joined the board through summary judgment. Of the ndreds of posts i found only three that were truly nonjob related. T only were the posts all related to heb as p usd trustee, but the stct court found that the content of many of the post was possible only because of the trustee she was in thdirict courts words, quote, cloaked with the authority of state law. For example, oconnor raifs official position was why she could teinto classrooms during instructional time all ov the district, something that would get anybody who wa a private citizen arrested. Not onlydishe use these pages to provide informio about her official activities, that was availae where else, but she frequently solicid edback from the public on board related ises and used the word we to do so. And id like to direct the court to page 46, note12 of the brief where we cite e requirement by the board that you have a disclaimer if you are speaking in your peonal capacity. She never put that disclaimer anywhere. Instead she asked people to coact her using her official government email accounts. And third, thpages at issue here are in no sense Campaign Pages. The district courrected that argument on pages 114 to 115 of the petition appendix. She did have a campaign website. That website had a personal email address unlike her official email address here, i official email address here, i ms. Karlan, the petition , petitioners here and respondents in the next case, make much of the fact that if your broad definionof a state action is accepted, th it would actually reduce speech by Public Officials, and id like your reaction that. No it would not. No one has challenged the speech that was on thespages at all. If they are speaking Government Officials, they have bo governments own protection, so for example, there are a number of protections to Government Officials when they speak in thr ficial capacity. Plus, they still have all of the First Amendment rights as a baup and i think its really important to no re that all we are talking about is the state action issue. And the ideaat Government Officials are not going to nt to talk about their jobs at all if you tell them its state action just seems to me to be illusory. But im not sure about that. I mean if its characterized as a state action, a governmental site, then wouldnt anything they say be caterid as governmental speech on which the government could take a particular polica social, whatever view . I think its actually perhaps a little bit more collocated anthat, mr. Chief justice, because these are elected officials and part of their duty istalk about certain issues. Ani ink if the government told them theyre silynot position on what the board is taking, that in itself wod violate at least the california constitution and arguably the federal constitution. St to make sure i understand, we are characterizing a particul site as whether its governmental, a source of governmental authority, operated as a governmental entity, or private. Now if its private, people talking on it can say what they want. Their speech want be limited. If its government eech, then they have to do what the government tells them to do on f site. I think the one thing that they do have to do, and i think this is fair, and there were a number of questions of the fos,representing petitioners here, they do have to have a disclaimer to say this is a personal site. They did not ha this disclaimer, ms. Oconnor radcffthen says if you want ls to contact me, contact me on my official government email account, which shes not allowed to use for persalor political purposes. Your test is whether Government Officialardoing their jobs, right . Thats the starti point, and it eates what i would say is ki of rebuttable assumption that when a Government Official is doing her job, she is state actor. So the mayor in the Grocery Store and is repeed approached by constituents, and the mayor listens really doesnt want to be bothered, but listens to supporters and people o e sympathetic to the mayors program. But when somebody who is known opponent approaches the mayor, e yor says look, please call my office, isthe mayor doing his job when hes doing that . I think the answer that question, which is i think different than the answer i give in r case, is that when they are clearly offduty, th is, pushing a shopping cart downthaisle, arguably they are not doing their jo but when they create an ongoing site like the site here, they maintain a forum, if you ll, in which people can comment and people can talk to each other. Eyre not just talking to the mayor. And yes, that would be state action. Ected officials have told me they are always on call, theyaralways doing their job, they are always being approached by constituents. But if they satheyre doing their job then yes, i would say the starting point is yes they are state actors. Can they say i dont want to talk to you ghnow, the ice cream is melting . Of course they can, because thats not viatg somebody First Amendment rights. But if th are discriminating on the basis of viewpoint and theyre doing their job, then theres a problem. Arguably yes, thats what i was saying that i think when you are clearly offduty, youre not doing your b,even if you say youre doing your job, youre not acting in your official capacity. But here, there was a website. There was a Facebook Page. The Facebook Page says if you want to talk to , call me. Contact me at my offial office. What if all of her posts were done in the evening . They reall done between midnight and 1 00 a. M. . Is she on duty then . Is she doing her b then . Yes, in the same way that if you stay up until midnightd your reading briefs at home, youre doing your job, you are under cor law. He has a First Amendment right to come into your house and of course you are a state actor. Could we go back to what you said about disclaimers . Would a disclaimer turn this immediately into private action . No, buitwould be a much harder casefomy clients to win. Why know because you could say on the top of your website, this is my personal website but then be operating it as a tool of gornce. If its the same content and if you in fact are operating it as a tool of governance. But you have a disclaimer saying that youre not, that this is justyoas a person. Im not su that court wants to have a magic words test for state action. Anso you would still, i think, havetolook. But at least there, the bl would know and be able to take into account that you are not usinth as a public website. He think putting the disclaimer there, but then saying things like we want you torespond to our surveys on whether we should change the elti system. We want you to respond to our survey. We are working hard. Shes not using i. And if you compare this to her campaign website, whh a website, not a Facebook Page, ere she uses i. Here she uses , and honestly, as mark twain said, the only people who should use weinthe singular are royalty and people with tapeworms. I dont think shes either of those. Ms. Karlan, do niyou think y could win under the test posed by the government and. Mooppan . I feel like you are talkg about doing your job and it seems like you are saying shes exercingthe authority of her office, whereas the ninth circuit focused on this appearance and function test of thwebsite. It seems to me that you are saying she was doing something more. I think we obviously went under the nintrcuit but i think we win even unr the sixth circuit test because of the duty and if you want me to pick through the different places where in ste law and board rules thats okay because that was your brief. Thats what made me think that youre saying it doesnt really matt, u would win under that test. Sure. She would have the auority. I think we win under every test except a strong veioof the solicitor generals test, beuse of that, because facebook itself, the facebook account itself was t owned by government, thsa hard test for us to win under. Theye ven that up because they are talking about the functi. I think so. Yeah, they said, you do notice a comment where th would have other posters of relevance, you are looking at the function of whats happening,coect . Yeah. So tell me how your te, doing your job, differs from the authority or duty te of the sih circuit . Yes, i think the sixt circuit has a much narrower nsof what duty means and what Authority Means then we would say is encompassed in doing your job. I agree with you up to it may require a written law. And the government has already concededthat you cant look just itten law. Lets take justice barretts point that the authority doing most of the work and thority has a meaning, so go ahead. So as i read authority in both thgovernments brief and the sixth circuit,th are treating authority as you are exercising some coercive control over a member of th public. I take at the ready tobe something quite different than that. You ing to have to explain that better. If i understand the governments brief correctly, what the governme ys is of course, even if you were in private property, if you were ing it to coerce somebody, so on your prive bsite, say to somebody, yorefired, and that has the force of law, that would be ste action because youre using and authority that only you have, right . The notice in comment wod not be coercing someone. No, bui take it what they artaing about there is particular kind of authority. Now some of the posts here are because of her authority as a state actor. The modal post on this site, i ulsay, the thing that is most common onthsite is that she goes and vitsa classroom with the superintendent or with a principal during instructional time. The only reason she can ask to do that the only reason she has the power to do that is because of her official capacity. No person can do that. A member of the public could do that. Presumably thats not put on the official site. No. Its just only on thissite. As far as we know, e only place that you could go find out about her basically your argument is the facilities, or Government Authority facilitates her doing a government futi and permits her to video it and put it on the site. Im not re how many videos there are yes, rerts. Just if i could get you to say that in one bit, if you said the right way to think about duty and authority, if you want to use the words, is what . The right y to think about duty is to look at the various sources of state law th tell you what somebodys duty is. Rewe got the california constitution stepping back from your case, which i know you want to win your case, and good, t just stepping back and saying does the sixth circuihave too narrow a view . I out you were saying yes. How is that tr . Why is that true . The sixtcircuit says unless there is a affirmative commanth obligates you to do the specific thing you are doing in the specific form you are doing it, youre not doing your duty. And we think that dutyhas a much broader conception, and i want to be clear. Which is wh . Which is you look to what the state law tell you what to do, what does history and tradition ll you what to do, what do the bylawsof your organization tell you to do . If theres a handbook, what does e ndbook tell you to do . Thosthgs can be optional. Tl they can be acting in yo discretion. This court has repeatedly said in a number of different contexts inback to the contexts inback to the youre talking about really people thimportant government jobs, its not all into be written down. I guess im a lile confused as to whats at stake here, because i hear you say noit isnt a matter of appearances anwhher a reasonable person might make a mistake, which was kind of the ninth ciuis reasoning. It really does boil down to duties and authorities, and youre positing that those dues and authorities include whats beyond whats in th handbook and an amount of custom. I understood exactly the same xt thing. So are we coalescing around a te at everybody more or less agrees on . I want to be very clear. Taing about duties and authorities in the context of justice barretts question, we thk the appearance and function are also relevant to whether someone is engaged in state ti. I took her question to be, if you take the sixth circuits verbiage, do u n the case . Im asking whats onwith Something Like that. Is thera problem with it 2 it seems like this discussion does seem like its coesd around an understanding of duties and authorities and there is some discussion about w pacious that has to be, but really the discussion seems to be like u,on all fours. What am i missing . Here is the one thing that woies me there, and it goes back to this courts desi in phone and telegraph in 1912 it also involves monroe, which is lots of tis people do things that they are foidn to do in the urse of their job and they are nonetheless acting under color of law. Wearall sensitive to monroe versus papeanthe griffin case, all of that, everybody is, but given that, woulyosee any problem with what we had been articulating here and you have wi Justice Kagan, as to any of th . I have no problems with the things ive said so far. I ju ink its more capacious than just that in ee trying to figure out whether someone isacng as a state actor, when you start wi someone who is a government ficial, and i think its really important to meer that this court has had in its entire history, as far as i can tell, about three or four cases wherthquestion was whether a Government Official was a state actor. And in all dof those cases excet polk county against dobson, which was justout public defenders, of course you are a state actor if you are a Government Official. So i think the presumptions and the rules of thumb and the like operate a little bit differently here thanth would operate in a case that involved someone who was clearly just a private actor. And you are asking can you push them over the line into being a state actor . Here we start with somebody wh looks like a state actor, says email me on my Government Official accot youve got any questions, says this is the ofcial page of me, uses the photo, and i think all of that hes. I understand u want to win your case, as u said to Justice Kagan, but we haveto us be concerned about the test now. I understand you two have said that you would define duty to include custom, a well establishecuom, and is it noa wellestablished custom for any elected public official to inform constituents about what he or she doing . So if thats how you understand duty, are you not saying that anything atan elected a public official, les ave it at that, tells constituents about what that person isdoing , constitutes state action . I think the starting point is yes. They could rebut that. For exampl talking to at things getting dinner, somebody says pass the gravy and you say i also passed a bi last month, yes, that would be private. Whereas when you set up ai an this is atthe ninth circuit says on page 28 a of the ped at is that state action here is maintaining an ongoing site for the exchange of informio understand that. What im getting from this is that you have taken the sixth circuits test and the e petitioners test and you ve broadened it by defining custom, by defining duty so broadly. Maybe this is right, but you have made it into a very broad test, a very inuse test. I think if you want to use the words that the sixth circuit used as your guidance, you havetwbrought in. In our case it uld clearly fall on the side let me go back to your wording and ask you to finish thseence for me. A public official is doing hi or her job when when, if you look at state law, and you look at the bylaws, they presuppose that they will engage in precisely the kind of action that youre challenging. Well i have two last if you are a White House Press secretary and you have a dinner at your house, you invite over certain members of e press and not other members of thpress, because part of what u ink makes you a good press secraris to get feedback and develop good relations with members of the media. At state action . Can i take that questi and kind of slipped it around, go backwards into its . There would be no constitutional claim by anybody, no meritorious constitutional claim that they have a right to come to your dinner. Someone is exud on the basis of viewpoint, so you ar inviting friendly reporters or who you peei to be friendly reporters and commentators i think that anybody who looked at just a dinner as opposed to you dont allow people to show up at press briefings altogether, i would be eped to say that there you are enough ofduty, and you are clearly enough offduty what about a regular meeting . No food pris served, but a gular meeting offsite . So not at the white house, th certain members of the press and not others . I think the members of the press put us in a somewhat different situation, because aladyoure entitled to limit that in a variety of ways. But if you had a Public Meeting, for example in california, a lot of our elected representatives have what they call sidewa fice hours, and theyll sit in the Bank Parking Lot next to the faermarket, and theyll faermarket, and theyll handout the for if they decided mp because they were sitting on the banks parking lot instead of in thr office, ti im not talking to black people, im not talking to muslims, im t lking to evangelicals, yes they would be engaged in state action and yes eywould be violating the constitution. Dierent tack now. On the reposting question i was asking your friends on the heside about, if your Government Agency issues notice, you then repost it . Our caseis not of a particular postatall. Your thoughts on that issue, if you have any . If you dont want answer i havent given a lot of thought to it because its not relevant to our case in particular, but i think its going to be very relevant to the opinion i would say is there what you are talking about is whether a particular post is state action t, it may well be that simply restg something isnt itself state action su at you could challenge their being youre having your comments to that post deleted. But if you were blocked altogether from a website on which they haveinted the entire public to share across the public as well as with you, what they think, then yes, that uld be state action and it would be actionable under the First Amendment. I just want to be surethat im clear about your position. In your test youre yore doing your job test, so you agree, it seems like, that the nih rcuit test of appearance and function is enough. You wouldnt with that . I think that e function part of the ninth circuits test, because they quote this language thatthDistrict Courts findings outhis being a tool of government, is the appearance and function, when they are talking abt function they are talking about are these people doing their job, as the functi of this is for them to do eijob of getting how about the appearance part . The appearance is really helpful infiring out what is the funcon so it boils down to the function, in your mind . Yes. T e function is sort of another rdfor duty in your sense, the duty is a response ability, its a function, they are all kind of tied up gether. Your duty is to do your job and thats your function. When you do urjob youre doing the function of beina trustee of the palais School District. Which brings us back to this is all a question of how brdly do we define authority or duty . I thk you have to define it mo oadly than petitioners. I understand thatbuim just saying that is the nub of the case as you see it. The case totally boils down to how you fi it and i asked the other sidebunch of questions about what work do duty do, isall in authority, did you saif i understand your position correctly,it just about authority, were not really okg at duties . Know we are looking at duty. Thats exactly what im trying to say, is duty, are you performi e duty of your job as a trustee . If you are then you are prumively a state actor. Thats what the courts thats what the courts turn to. You would say duty is having conversations with citizens, is always part of your dutiesor part of your duties which converts every conversation you have . I would say having some mechanism by which you ca interact with your cotients is part of your duty. And the board bylaws say this. Ey say in bylaw 9010 a, the responsibility ard members in their role as community aders is to participate in public discourse, and then they say boarmeers have a responsibility to identify rsonal viewpoints as such, and that is the viewpoint of the board. And here what you have is both of the petitioners using we an our when they talk about what the board is doing, and anybody who looks at that is going to think this is an offici website. It looks like an official bse. It performs all the functions of an officialweite. There is notice claimer anywhere she has a separate campaign website. She eshegovernment email. I suppose theres an official website, too. Is partly, largely, entirely duplicates it. So this goes back to the question that Justice Kavanaugh was asking. How does that matter, or does it matter . I dont think it would matter if it was the website at issue here and i really do urge you to take a look at ecf 3511, which has the entire feed from the day she took ofce until the day of the summary jume motion, and i defy anyone to look at this and think this wasn official website. De when she wants to give you a personal opinion, she send you a link to her campaign website. I tell you that this is the crial difference between you and the government, right, that they just say Facebook Says its heprivate property and so its t an official website a by definition. D u are saying no. Thats correct. D im sorry to be hung up on this duty question but what if the la or the state law doesnt say its your duty to communicate with constituents, give announcements, et cetera, but she decides, hey, constituent communication would bea good idea. This is kind of like the governor decides to do this or the president decides to this if thats not formally in her job description, and even if shes the first e to do it, so its not cust, but we would say she has the thority to decide to be a mouthpiece for government, would you agree . Can just say its a lilecomplicated in our case because the board has specifically said she does have the authorittospeak for the bod. Thats why shes supposed to have a disclaim. If you are talking about a pothetical of someone in another jurisdiction where there is somebody that says thing either way and she decides she has the thority, then it might come down to question of as a matter of state law that she have that authority. Authority then yes, she would be a state acr. Now most governme rkers, most Government Employees do not vethe authority to speak for the government, d so it wouldnt be part of their ty to run a personal website. So for most governnt officials, if youre a janitor t orthschool bus driver thats making it too easy. There are a stnumber of government fials around the country, at the local town and city level, so i dont think you can minimize this by sayingt no, its not going to affect certain categories. Its going to affect a t of people. But at the veryleast, the other side says here, the very least if the state wants to tell you not to do this they can do that. The answer here is e palais School District told her not to do this, told her not to have website that looked as if she was speaking officially, and this website did exactly th. Just on the custom question, to follow up on justice barrett, it ually i think is you are describing it, in to be part of the custom of most of these jobs that our elected ofcis or appointed officials who have some auory, to communicate with constituents. I dont think thats necessarily true all it would be true foelected officials. It would be true r some Government Officials. But let me veyou a hypothetical that i think will illustrate this. So if a Public School tehe in palais had a website that was communicating the parents anchildren in her class, that would be statacon. That would be true regardless of what she called the website. If shwaed to talk about things whether the board should be elected at large by districts or a big issue here, she waedto talk about whether the schools were being mismanaged, which is something that for a ile there was a real problem, atwould be her speaking in her personal capacity because that wouldnt be coming from her joand her duties as a schoolteacher. Just to kind of wrap up this a little bit anticipates the next case, if there were sosome personal things on this site, how far does that take it . Can you dilute thsite and turn it into nonstate actionby putting up your kidsctures . I dont think one cture of your children turns something into not a state website. Here i really do think if you look at this website yowill find one picture of her children on christmas, one picture of her childr at some School Related events, one picture of her grandfather at on veterans day d nothing else th is personal, that is clearly rsal as opposed to coming out of hejob. You know, here is the thing understand. This goes back to something r that Justice Kagan said earlier, which is there First Amendment issues on both sides of this case and here the fit amendment provides a tremendous backstop for members of School Boards and the like who wa regulate their sites. There are rus out public forms. There are rules about time, place and manner and the like, and they have a lot of control ov what goes on on those websites. But if you decide the threshold state action quesagainst my clients here, refusing to find state action would have devastating consequences for e blic because they would be denied access to sites on which their officials are talking to them and asking for thr reactions. Thank you. Justice thomas . Justice alito . Justice sotomayor . In meways youve implicated things. Im sorry. No really, because what were being keto find is whether the state was acting when these Government Officials turned off these sites. So we are being asked to hold the state responsible for ultraviolence activities cae these officials were told specifically, you are n tellinusnow, dont do this, and they did it anyway. No ma just as in we talk about this in the red reef, in manella the courts said you cant ldthe government responsible, the municipal government responsiblless the unconstitutional action was pursuant to a policy. But there was nonetheless titutional torts there for which individual government actors could be held responsible. Thank you. Justice kagan, Justice Gorsuch. Justice kavanah . Justice jackson . Thank you, counsel. Has. Rebuttal . Your hor,so first on the appearance questi. No, i think my friend said appearance is relevant in assessing whether the authority but basically gave up thnoon that the ninth circuit adopted, that you ca use appearance as a freestandi ump over duty and authority. I think that concessi basically right because otherwise the por block doesnt come from the pearance and i think she would have to continue hypothetical where the police offir ns down the street in his uniform is t state action. Then i think the action really does come to how do define duty and authority. Ani ink the fundamental prlewith ms. Karlans omission is she is defining too broadly. Shes doing exactly what this court said in kennedy and lane you should not do because you have to recognize that Government Officials have the right to speak in their personal capacity about their jobs. Thats even true when you in about information they only learned cae of their jobs. Ms. Karlan emphasized several times my client spoke ou stuff they learned in the assroom. That this courts decision in lee. The Square Holding of lane was that it was individual speech, not employee speech, even though it was information learned while in office. D the flipside of that problem is if you treat this too broadly, the problem th this court recognized in both kennedy and garctithe chief justice alerted to this, if you treat this as duty and Authority Just because youre talking about your job, th means its controlled by the. It amounts to vernment the speech, which means the state itself could tell individuals what to say on their pages, and thats the harm with creating the sort of you have to have a disclaimer rule. If individuals dont put upa disclaimer, all of a sudden not only do they lose their right toexclude you from their pages, they have now en themselves up to having the ate itself tell them what to say on their ge, not as a regulation, as i rewith the federal government that the state has a lot of power to regulate them as employees, but ms. Karlans position means that they could gute them as such. They could tell them actly what to do or say on thpage and that would be a serious First Amendment probm. To say that the First Amendment esall of that because they didnt put up disclaimer what i think turn the First Amendment on its head. Finally a few points about the fact of my case because i, too, would like to win for my clnt the first point ill make is this id out in our reply brief, ifyolook roh the citations to the record, the only duty that my client had to interact with the public was at their bod meetings, which they complied with, and no one was ever blocked from that point Everything Else is the same sort of overbroad, its your dutytotalk to people that would Cover Campaign rallies, talking to your neighbors at church, the stuff that cannot possibly be viewed o as governmental unless you swallow individual First Amendment rights. C suggested that the page was somehow their duty. One of my clients closed the page, just shut it down. No one thinks he was acting in breach of his office, he was in dereliction of duty. Your honor, i cede my time. Thank you, counsel. The case is submitted. In the weeks that lie ahead, as friedmans first Major Television series unfolds, the famous and influential men and women will occupy those seats are going to have a lot to say about friedmans view of the society in which we live today and his solutions for the ills of our time. Saturdays at 7 00 p. M. Eastern, American History tv will air the 10 part series, free to choose, featuring nobel prizewinning economist milton friean mr. Friedman coproduced the series with his wife and fellow economist Rose Friedman and it first aired on Public Television in 1980. The friedmans also wrote a best selling companion book of the same name. Programs in the series take us to locations important to the u. S. And world economies. The friedmans advocate free market principles and limited Government Intervention in the economy and in social policy. Other topics include welfare, education, equality, consumer and worker protection, and inflation. Watch free to choose, saturdays at 7 00 p. M. 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