and may please accord good morning my name is jamie shoemaker and i am here on behalf of the six appellants in this case judge jackson's opinion in this case should be reversed for three reasons first sheriff roberts clearly harbored retaliatory animus against anyone who opposed him politically skinned he created a political cauldron in the hampton sheriff's office where his senior officers went out they learned who their employees were supporting they learned about their political activity the sheriff learned about these six appellants in particular and he fired them for supporting his opponent third the sheriff is not entitled to qualified immunity in this case in november of two thousand and nine he was facing reelection and he was facing a tough opponent at the beginning of the campaign season he learned that two of his employees were on facebook supporting his  employees were deputy danny carter and robert mccoy he held shift change meetings where he essentially said if you get on line supporting my opponent you're going to be fired that's essentially what he said after one of those meetings the meeting at which the ne carter was in attendance he made an angry and aggressive approach to deputy carter and he told him that's it you've made your bed now you're going to lie in it after the the claim for in statement but that clearly is on the table judge jackson seemed to wipe that off the table clearly we are entitled to seek reinstatement even in the face of eleventh amendment immunity we are not entitled to proceed against  against him for monetary damages in his official capacity but we are in his individua passy and qualified immunity does not lie it simply does not when you look one night vernon is clear night  in clearly establishes the contours of the legal contours that apply in this case in that case sheriff vernon down in the middle district of north carolina was facing a situation where just almost exactly like this one if in fact if there is any difference between our case and the knight v vernon case the fact is kathy knight had a weaker case than my clients do she was a jailer like four of my six clients h terms of employment her job duties were almost the same as four of my six clients she was accused of various inappropriate conduct the sheriff actually commissioned a detective to investigate  detective came back and supported much of it and so the district court relying on medford the medford decisions mefford be jake and said you know she's not entitle to first amendment protection anyway we're granting summary judgment before circuit reversed the district court and said listen this is just a jailer and they drew a bright line of demarcation between law enforcement officers who have general and immediate powers of arrest and ministerial employees like jailers and the administrative employees in this case so night  know the administrative employees were not it is true that the that the no no mammal the four deputies were indeed sworn but they were not law enforcement officers under virginia law they did not attend the law enforcement course in sixteen years we had a declaration from the former lieutenant colonel in the office he was the third highest ranking employee in that office and in sixteen years no one in the hampton sheriff's office had ever made an arrest that fact is on contradicted in this record that all the declarations from the plaintiffs and the declarations from the disinterested witnesses all say we didn't have wrest power we didn't even we didn't know we had the arrest power and we've never arrested anyone so there is a clear difference between the medford decision and the law enforcement officers in that case and this case night vernon is on all four points night vernon matches this case and night  vernon gives the sheriff fair warning fair warning about the contours and the legal obligations that he had in addition to that he admitted he knew he hadn't he knew that he could not fire these employees for political activity that is in the record so we think it's clear that qualified immunity does not apply here and he faces liability in his individual capacity the evidence in this case is extraordinarily powerful and it is really unique in that regard there were three shift change meetings and one meeting with administrative employees where he says you're going to be out of here he tells he tells deputy carter you've made your bed now you're going to lie on it when you look at something summary judgment standard and you consider the fact that all of this evidence has to be interpreted in the light most favorable to my clients dismissing this case on summary judgment was clearly inappropriate in reeves v sanderson plumbing products the united states supreme court said that on summary judgment the trial court must give credence to evidence favoring the non movement but only that evidence supporting the moving party that is essential in un contradicted by sources of objective evidence and disinterested witness nearly all of sheriff roberts testimony and evidence in this record is from his mouth it is from him he is completely interested not disinterested as contemplated in now counsel for facebook has been a lot of time to argue on the issue of like as an expression and i don't want to tread on his time except to say that in this case were guarding evidence of protected speech and whether we're talking about woodward confronting lieutenant perkins whether we're talking about deputy dixon expressing his views to francis polk at the at the polling station or whether we're talking about deputy carter and deputy mccoy being on facebook all of those expressions must be viewed in context they must be taken in the context in the most critical evidence of the unique context here is sheriff roberts said you get on facebook you're out of here he made it clear that if you support my opponent i am going to fire you that evidence is clear in this record and how many clients are on testified that he learned of mccoy's presence on facebook and talked about that in the record he said they were on facebook and we were all surprised about that because they referring to mccoy and carter seemed to be supporting the sheriff's opponent colonel ballot in the second in command of the office testified that she monitored facebook she testified that she saw mccoy on facebook with carter and that she went to the sheriff at about the same time she testified to that deputy mccloy of course testified his declaration i was on facebook indicating my support for the opponent deputy carter said he saw mccoy and of course we have an end in the file in the record deputy carter's actual facebook post but there are five or six witnesses in this record who saw mccoy on facebook the sheriff himself admits that mccoy was on facebook he said he learned of that he wasn't sure when he learned of it after the election he yes but the record doesn't say before he fired mccoy so if you interpret this evidence in the light most favorable to me it is still share of having actual knowledge and was a suction pump of sorts when it came to political information all the political information in this office so direct like sort of that's true there's a that's true there's no direct evidence about woodward's activity actually getting  everything we know by everybody judge the political we have evidence clearly there is evidence in this record that the sheriff was keenly concerned about his political standing with his employees and in lots of different contexts the cookout the facebook activity all of that made its way to the sheriff i believe a jury could reasonably infer that woodward's protesting  bobby bland was requested by major wells major on several occasions and it's in his declaration and it's in the transcript as well on several occasions to engage in the same activities that he indeed had engaged in prior to two thousand and nine and he declined to do it that's the evidence with respect to blant the evidence with respect to bland is very comparable to the evidence with respect to kathy knight in vernon and knight vernon so i think bobby judge trucks there may have please the court the district court in this case rejected plaintiff's free speech claims or at least two of the plaintiff based on the conclusion that merely liking a facebook page is insufficient speech to america constitutional protection and that holding was in caracas and this court should make clear that a like on facebook is beach that's entitle to the same first amendment protection as other kinds of traditional speech sort of the i think we start from the proposition that the supreme court made clear  u which is that online speech isn't entitled to any lesser protection than other trite types of traditional speech that was a principle that was clearly established that from the early days of the internet liking a facebook page whether it's a political campaign page as it was in this case for it could be a news article website associated with a musical group or a marshall product it's part of the rich web of interactions and communications that facebook enables and it warrants first a merit of first amendment protection by liking a page on facebook a user might communicate her endorsement of a charity or a restaurant a local business or or in this as in this case a political candidate and that represents a deliberate choice to share preferences or opinions with about a you know again a range of matters with one's facebook friends and possibly as in this case with a broader audience  now the district court held that a like on facebook is not an actual statement and therefore not entitled to constitutional protection but that's simply not correct as a first of all as a factual matter when someone likes content on facebook it does generate literal statements here there would have been a statement that if it was carter who liked it but carter likes the adams campaign page that would appear that on on facebook pages of facebook friends it also appeared on his facebook profile page the home page that people can view even if we were to even if the court were to consider a like to be a symbolic gesture it would still qualify for first amendment protection as symbolic speech now affirming in this case that a like on facebook is entitled to first member protection is very important it's of vital importance to facebook and its millions of users many millions of users in the united states it's quite central to facebook's mission to foster interaction social connection and sharing of ideas and really the extraordinary success of facebook reflects its effectiveness in doing that and deepening social interaction among its users and any suggestion that that sort of communication is entitle to less than full constitutional protection than traditional forms of speech would risk chilling a very valuable form of communication that the internet has made possible i think the court for the time  more the court concluded that the sheriff had qualified immunity when he made a decision not to rehire the defendants and i would ask the court to view this analyze this case although it involves novel issues involving social media to view it through the lens of qualified immunity as judge jackson did because i think the issue is what the state of the law was that would have put the sheriff on notice of whether he could take the action he took so i would suggest the lens of qualified immunity would be the proper way to start and the evidence in the case is clear for three of the appellant's none of them engage in political so protected speech bland woodward and san ha for all the record is it has no there's nothing in the record to suggest that any one of them engage in political speech or any speech miss to get off topic so anyway first first it was not clearly established in december of two thousand and nine that sheriff roberts failure to reappoint the appellant's violated violated the first amendment right to free speech and in the we recognize that in these cases only infrequently would be clearly established that a public employee speech on a matter of public concern is constitutionally protected because the relevant inquiry requires a particular eyes balancing  yeah difficult to apply and not well defined and i think that's that and so what take that in with from that from that guide will take each appellant separately well can i just ask you though i do know that language that you cite in the case it certainly sounds help to you but in the night case that was decided in two thousand it does seem to suggest that based on the rol that these particular plaintiffs held in their responsibilities for the sheriff that somehow they wouldn't it wouldn't be any question that they don't fall under the umbrella of the kind of protection that you're talking about well i think clearly that they fall under the protection of the jenkins case well there was a police department in hampton right with that but they really have a hammer and its own police force these to the extent we're talking about the four who are who are sheriff's deputies they didn't have any law enforcement responsibilities as we understand it well that's not even i don't mean we it brightened my panel i meant that as people tend to think of law enforcement well well and well it's interesting in virginia sheriffs sheriff departments they do play do involve law enforcement roles as well ok in hampton particularly at a police department but in many counties they didn't go through the law enforcement training course for example they know well they did they did go through law enforcement training they went through department serve summonses things like that is not what they did best not to judge this before deputies in fact worked off duty as law enforcement at hampton university wearing the sheriff's uniform and carrying a gun and had full powers of arrest so they were anyway so as i was saying back on our back on the retaliation issue as i was saying the three of them really has no evidence of speech for bland woodward san an arrest she had made suggesting improper conduct by another officer and he said clearly those were comments that if they touched on a matter of public concern and were protected ok so what does a clicking on facebook mean while i will tell you the record this case shows you did not realize he was making any statement or any political statement when he clicked on facebook it was an accident accidental posting and that's clear from the record that mr deputy mccoy's testimony he actually posted his picture on mcadams facebook you can actually posted how is that protected speech he appointed to the record he says he sent out an email to wish him good luck on the election and it ended up on his facebook page at that time he didn't know if anyone else would find out about it when it e mail that's at the joint appendix one fifty six line seventeen through twenty five then he goes on to say in deposition he intentionally went on facebook an e mail to adams but did not intend to be posted on his web site join appendix one sixty one line three through six then he says if you knew he would be poster adams facebook but website as a supporter by sending email he would not have done that joint appendix one sixty three and so judge asked so i mean that is critical how can you have accidentally protected speech he didn't realize he would be he's making he was posting his picture on facebook at the time and that is the problem with facebook you don't know what action if you do the consequences it has  and and it might be the problem with the evidence with regard to mccoy speech but what about carter i don't know that that's a problem with facebook well no i agree with you i agree with you joe tacker but i app position is and i think judge jackson clue did it is autumn it's automated it's no automated computer driven response when you click on on the like it's not a person making speech why you can click on it for a variety of reasons  facebook community how is that any different than him perhaps getting yard sign in his yard that says i like ike or something that's the question i asked myself same question but i think if you look at it he didn't do that and that's be mr adams facebook page and that is a picture of daniel carter and his wife who was also a deputy sheriff and who was reported by judge by sheriff roberts ok you see daniel our car junior over there on the very bottom below mr adams  picture so that's all that's there there's no when we can there's no statement or support for him that's all that's in there and and similarly then when you go to page fifty seven fifty eight that appears to be what is on what was on you click on the button so that doesn't mean it's politically protected speech you can't get in to see what there until you click on the like button it's not it's different and judge jackson concluded it was different then then a specific posting when you say you post  each one of those intentional speech i don't think so so but that's up to the court to decide maybe maybe maybe think it is so anyway so that so on the issue that was that's an issue for mccoy carter as far as carter goes had numerous disappointing actions and actions against him which the chair for lied on in just making his decision he had released several inmates improperly from the jail prematurely that's obviously a very serious offense as far as his picture has his picture on facebook i asked him what did you think the sheriff concluded from that he said he didn't know what the sheriff concluded from having his picture on facebook and i don't know that the sheriff conclude anything he didn't say that he concluded that to consider that in making his decision wrong with these in this department from numerous years and he was friends with many of the deputies so the fact that you click on his facebook i don't think that of that's one means that you supporting him it may mean you're curious about what he's doing and judge jackson concluded that the court had not found any evidence of the statement of support carter had made as what the judge jackson said he did find statements support in the facebook pages in the record in joint appendix seventy six seventy roberts that day to support there's nothing like that in this record and so that's why i would suggest that judge jackson was correct in concluding that that there was no evidence to support his position i think this case is more like the case of smith versus fry in which that case there was insufficient evidence that the that the plaintiff had even engage in first minutes and then speech but rather she testified she believed the sheriff knew that she support the opposition candidate and that's the same in hopper says oh because my girlfriend had a bumper sticker on her car that you know the sheriff saw that know my girlfriend's working at the polls and the sheriff saw her will have has that mean that he knows you support you're not supporting him he can ask that question the same thing with bland woodward all of them they think it's only they say well i think the sheriff knew but they didn't complete any evidence that he knew and then the evidence the sheriff testify was kept that he said he had reasons and he identified the reasons for term in each of the people woodward and bland were placed with sworn deputies because he had a reduction in the number deputies that the cop was giving him so he had instead of using not civilians he would place those position with deputies that's a valid reason dixon had he's giving his own truth and could the jury logically conclude from that then that the illegal purpose was real reason i think i think judge i think that what the testimony was that he had ought he not offered it to her at the that she knew that she kept everything secret and that she would he would have no way of knowing of her political affiliation it would be enough evidence to support that position i mean i don't there's really on her there's no evidence she also says she kept everything secret there's no way he she has no evidence to suggest that the sheriff knew her affiliation whatsoever correctly concluded that that his statements as he walked at the poll or more of a grievance against his employer not a polluted not a statement of political content that the community would been involved with and i believe that that was an accurate conclusion that president obviously can consider political loyalty in determining who is in his cabinet and similarly i think the sheriff in this case has a right to do and the ability to take and consider loyalty and make that decision and so for those reasons we would ask the court respectfully to uphol the finding of the lower court first with respect to deputy mccoy evidence in this record that he was on facebook in the context in which he was on facebook appears at the joint appendix of page five ninety two repartee sand offer says he saw it kept him again testimonies of page six eighty six eighty one colonel balanced testimonies of page forty two page forty four where she saw it and then at the same place says she reported carter and mccoy at the same time to the sheriff carter's testimony saying that he saw mccoy's facebook posting indicating support for the sheriff appears a page five seventy one and mccoys testimony inductors declarations page five eighty six this idea that an accidental expression is not protected by the first amendment utterly fails as an issue and there's no debris it's not just it's not it's missed it's been raised in oral argument and i want to use an analogy if i'm at work and i'm passing an employee a note and that note expresses my political preference for a candidate but i want to keep it concealed from my employer but it is revealed to him it is still protected speech irrespective of the fact that unfortunately for me it's revealed to my employer and he wants to fire me for it it is still protected speech that assertion should bear no w whatsoever with respect to dicks and it's important to get into some of these other deputies dixon leaves the polling place he tells francis pope looking at sheriff roberts campaign literature you can throw that stuff away by the time he gets back to work his boss knows about it the sheriff claims he fired dixon because he said to francis pope you can throw that effing blank away using expletives that's what the sheriff says but the sheriff never even bothered to make any inquiry with dixon whether that in fact occurred dixon was a thirteen year employee and contrary to the representations of mr rosen all of these employees had excellent records all of them it's on contradicted that they all had above average performance or outstanding performance in this record so here we have a thirteen year employee he tells a campaign because she can throw sheriff roberts literature away by the time he gets back to the office his supervisor knows about it and he's fired without anyone asking him what happened almost immediately dixon also had a bumper sticker on his car and that cannot be ignored in this environment this is an environment where things are done on the clock he hosts the sheriff host political act events on the clock employees are out working these events on the clock they are planning the events on the clock majors and captains are going around selling tickets they're going around inquiring of people what they will do for the sheriff while you work a hold of it with regard to its judge when it comes to the indirect evidence in this case we should benefit from an inference that given the intense political activity in this office this information was getting up stairs very fast and i know there's no better example than dixon at the polls and by the that is my position but it doesn't ride or fall rise or fall on the bumper sticker alone the sheriff clearly knew about francis that aker that's that is patent in this record i'm sorry clearly knew about  patent in this record is clear in this record so dixon clearly engaged in protected speech mr sam hoffer he was executive director of one of downtown hampton's most prominent prop prominent marking groups as soon as he is hired into this office he has put to work basically schmoozing the downtown business community on behalf of sheriff roberts colonel balun has him go out to do that when it came time for the two thousand and nine campaign what he knew what he did a fair enough chief judge tracker but trucks are let's make clear this only applies to san hoffer bland and woodward this indirect evidence problem does not apply to carter mccoy index and that my response to the question is again i have to recur to the intensity of the political activity in this office he had majors in captains going around all the time soliciting activity and monitoring political activity and it was reported up the chain of command a great example of this is the cookout ramona larken a rank and file deputy host a cook out with danny carter jim adams the opponent in the in the november campaign shows up at the cookout the cookout is end of august two thousand and nine right before labor day right at the kickoff of the season well the monday after the cookout ramona larkin is approached by major richardson and he says hey i heard i heard jim adams was at a cookout responsible i didn't invite him but invited danny carter inviting and he stated to her and it's in the record where you need to make that clear to the sheriff because this looks like a political event and quote it does not look good so this is the environment they were operating at this is what they were dealing with and in this cauldron information got to the sheriff with lightning speed the conduct in this case is extraordinary sure has succeeding in uniting the a c l u and the police not that common an occurrence and he has succeeded in this because the conduct