infringement of the plaintiff's alleged first amendment rights but the case becomes a little complicated and it's not novel to this court but certainly it's complicated because there are inner working issues of defamation and qualified immunity i mean the amended complaint suggests that the plaintiffs in gauged in free speech pursuant to the first amendment by being able to freely criticize the board of health and in particular my two clients dr end we file and raise the issues of qualified immunity in response to that based upon the issue that the conduct of these of the plaintiffs in this case may not be in fact protected speech and as we look at the evolution of first amendment retaliation a lot of course we we study in this court has written on this issue that first i mean this decide whether or not there is protected activity in the first place then we look at whether or not there's been an adverse action and then we see if there's a linkage between this adverse action and the actual protected activity in terms of qualified immunity of course qualified immunity approaches the very first prong and it asked the question was there a violation of a constitutional right and was that right then clearly established and our position is and what we've advocated is that even though we recognize that the first amendment provides wide latitude for political comment in fact sometimes in vice of comment that right is not unlimited that there should in fact be and there is restraint on some types of speech particularly as in this case when it is documented that not only was the speech defamatory was all of the speech defamatory no there's them that was just critical of the way the board of health and your clients were operating there was mixed speech certainly the open criticism of how the board was operating how they use their funds maybe even the manner in which doctor in your work has hours would certainly all be fair game under the first amendment we respect that but the instant that the the appellee is ventured into what would be clearly the family tory facially defamatory comments the fact that there was corruption the fact that they were doing bidding for their friends all of those things that are documented by the district court in the record certainly raise the issue of whether that speech itself is protected and that really is the issue that was addressed by the cease and desist letter in the sense that what was articulated by separate counsel for my clients was that you can criticize us all you want but what you have said with respect to why these mechanisms are in place is not true and here's why and the record establishes that the appellee is actually knew the truth i mean if we step back a little bit historically in the record what happened here was is that trouble county has some deplorable soil conditions and we're subject to litigation by the e p a that started back in two thousand and two and two thousand  a consent order was ultimately entered into in two thousand and six and amended in two thousand and eight which basically forced the health department to regulate new septic systems and those systems had to fall within a certain scientific category which would be sufficient to handle it to handle the effluent through sand filters and as i understand it these sand filters are cumbersome and they're onsite lee and so in order to market as an installer you have to either offer a san filter or there has to be an alternative the only alternatives available had been developed by this company called consolidated systems and for reasons that are unique to the appellee they got into a firefight with that company and in fact there was a cease and desist letter that's in the record that was sent in february of two thousand and twelve by consolidated asking the pelleas to stop the fame in their company but as a result of that the only distributor of these alternative systems refused to deal with the appellee now we had no input in that we have no control over that the reason that's relevant is because the plaintiff and the pelleas tried to develop their own t system which was rejected not by the health department but by the ohio e p a as engineers and that information was conveyed to the plaintiff but yet throughout two thousand and eleven and two thousand and twelve they continued to argue continue to assert that there was corruption bid rigging rigging why isn't all that you're telling us showing us that there's a fact question as to whether some of the comments of the pla defamatory but i guess i'm getting a little bit lost in terms of if there's a packed question or merely denying qualified immunity is the appropriate route to go and i agree that that becomes a confusing issue but i think at that point we look at what we've all recognized as the definition of defamation definition defamation itself is not in its clinical analysis is not based upon the status of the supposed victim in other words we there's been of course the carve out and proper analysis by the united states supreme court as to whether or not you're a private citizen or a public figure a public official but if we look at defamation itself a facial defamation claim is a false statement made against someone that's published that's an authorized is everything you've told us so far going only to the alleged retaliation of the cease and desist letter yes and the way you're arguing it sounds like you're saying that if they were factually wrong to ask their lawyer to send the letter then they would lose are you disagree with with the district court is that that in itself was an evidence of adverse action i think that you know because i ask myself the rhetorical question of what is the remedy available to a public official who subjected to what they believe to be facially discreet defamatory comments their you know their remedy or their ability to rebut that can only exist in a forum where you there announce publicly that this is wrong which was done or you go directly to the publisher and say this is wrong and this is why and i think that that is really why you know on our position if the court would for instance to make this determination that the speech of the plaintiff was either protected speech or there's an issue of fact as to whether or not it's protected speech then we drop down to even if that were the case they were asserting their private rights to say this is wrong here's why and you know that letter actually gives us a roadmap and in the sense that you know for the plaintiffs argument to have you know steam they all eventually have to establish that there's a linkage between this claim of retaliation and the ultimate adverse action which the district court identified as the cease and desist letter which of course we're challenging and then the administrative process which was in an effort to revoke his registration to talk about the administrative process because he was a little more conventional in terms of it does i agree with you that you know as we all know the adversary action arose out of employment law and this would certainly be a situation where if there was proof that there was a linkage between these things there would be an articulable allegation of adverse action by denying this man the ability to pull a permit i don't challenge that piece but what i do challenge is the this is the district court's determination even on the facts i mean there are affidavits from dr and your and mr make most of the but in particular dr endured that clearly establish without challenge that this was not a unique situation for the health department to challenge the validity of a sanitary of the septic installers registration there were at least fifteen efforts by the health district over a ten year period in which they did in fact conduct administrative proceedings and they did  these your exhibit a one through a eighteen or so they seem to be different people at different but i was able to match up most of them with your briefs is that pretty much what you realize that is it your  honor and then there is the issue with respect to the activity that occurred with performance issues i mean there were a slew of performance issues that dovetail with this whole issue so you're correct i challenge the district court's decision that the finding of adverse action is buttressed  based upon the fact that no one has had their registration challenge before i don't think that's accurate even in the record in fact it's completely opposite but to this was based on performance issues as this evolution of discourse was ongoing as i mentioned the were frustrated because they couldn't get their own product approved and they had gone sideways with consolidated systems and couldn't even obtain that product but they somehow put their anger up against my clients and asserted that they couldn't market their own product so we believe and we think the record demonstrates that it was the performance issue of mr matthew meadows and his kid and his companies that resulted in this and it would have happened anyway wasn't there commentary that your opponents point into that would suggest that it could have been a retaliatory motive as opposed to a performance  telling barry that i'm tired of you always stirring up shit and saying very meadows is not finished and neither am i and that if you view that evidence in the light favoring the plaintiffs that there is at least a question of fact it's appropriate for a jury to well if we look at the context of those statements of course they're separated in time but more important mr bugliosi is the environmental director is not the entity or the person that makes an election to challenge the validity or the application or continued status of anyone's registration that's the board of health mr make lucy could make some argument or suggestion but that's a board of health decision so he didn't have the power to initiate the claim that's done at the board of health level i also think that these comments could be deemed as saber rattling or threats that i think this court has already recognize may not in and of themselves be sufficient to create adverse action just the suggestion that i don't like you the suggestion that i'm tired of your activity is not in my my view of even this court's writings that that would be deemed at her section if we also need to pay attention to the fact that it is in the record that this just wasn't a situation where we thought he was not we received and again unchallenged in the record a stream of complaints about him but the most important ones dealt with the analysis that was done by the ohio department of health there was a series of failing septic systems in this area over a twelve month period and you know of those systems the majority fell with mr meadows and the appellee company the problem was is that the done independently show that most of every one of these failures dealt with installer error on top of that we had complaints that are in the record from residents who had hired the appellee who didn't even finish the job and the work they did was inappropriate and that resulted in of course in these two prosecutions they were ultimately dismissed but there was a deeming a there was probable cause for those investigations and ultimately the warrants but my point is that there was a facts it was a very it's a young couple who had a business their business was to install septic systems and the name of the business is digging dirt so they have this system in trumbull county and particularly but in other adjacent counties in northeast ohio that had these terrible soil conditions but there was only one product that was suitable were deemed suitable in the marketplace so like any business person barry indiana meadow say we can build a better mousetrap they go about creating a system that looks better because the septic system wasn't sticking above ground like a concrete bunker but was actually below the ground and it would cost lust and do as good or better of a job than the existing system that was being distributed the consent decree had given the authority to the trumbull county health department to actually make a determination as to if this system was going to be approved or not and flip i could interrupt you yes or other is where your sound like you're going is a conventional type of regulatory fuss that could happen with you know horses or real estate or anything you have a regulatory agency has a fuss with somebody who's been regulated and my question is we've got two issues here we've got the cease and desist letter my question on that is that's a private action how is that state action if they had asked to the man to pay a debt or to pay his rent if they happened to be his landlord how can that be the kind of state action that would constitute a first amendment retaliation you want to go there with certainly  it may be a state action maybe a private action that determination as to what is fact and what is legal the proper jurisdiction of this court is just purely one of the a legal inquiry as to whether qualified immunity was proper or improper in this case the facts that i just mentioned or the counsel for appellant was mentioning are not germane to the airlock atory appeal the issue of whether that that letter in an of itself if that's a state action versus a private action you still have it matters not i'm suggesting that if it's there if it's a private action you can still bring a first amendment retaliation oh there's there were certainly other actions that were taken the threatening comments this entire mistreated proceeding that took place out there every time i ask you the question you answer about something else i'm going back to saying specifically let's take the analogy that your man is his senate and he sends a letter says pay your rent and you can't can that support a constitutional violation of his first amendment rights when he's acting clearly in a wholly private capacity this case wasn't what happened you had the director of health well in the environmental director taking action saying don't you say anything to us when you come to these board meetings d m and barry meadows we don't want to hear from you and if you do we will sue you so the action that they were taken there wasn't any separate relationship between leos in engine is that it has something to do you know we have we have these  people some time we have we just issued a case about intercepting phone calls or there are cases about people making an authorized video so if a public official thinks that someone has committed a tort against them they can be sued if they if they demand that people stop it in other words i think you committed a tort against me it happens i'm a public official ok you're tort may have something to do with my public actions but i am i can i can be committing  constitutional violation by trying to vindicate my private tort rights want to take action to protect that interest and i have if that was it existed on its own in this case i agree your honor in terms of what the court's adjusting but when you take the actual and just viewing the cease and desist letter in of itself you know forgetting the fact that there were many other a toiletry actions that were taken against the meadows in this case but that action cannot be it cannot be viewed separately because what i think the opponents are law's intended to give a public official who's sitting in their capacity to say look i think you're defaming me because you're saying something that causes me to feel as if i've been damage because what you're saying to me meadows is you're saying things to me in my official capacity that i'm corrupt that i hide my hours that i'm in cahoots with the manufacturer of the other product that's out there there's no way to do that your honor without chilling the free speech if you're going to sit in that seat of being the health commissioner that part of the other side you're saying that you could send that letter but only if you're correct only if it's a winning letter if it's if it's not a winning letter then you've committed a constitutional tort i think your honor i agree i think you have to be very you know and that's interesting as i've been on this case as the sort of ground where all the way up to this point in time i think it was just a critical error that they made at the time you know when you you have to take a look at when you're the lawyer when you're crafting that letter who is my client what position do they hold what am i actually saying in my chilling something in my chilling something that i know is is wrong or might be wrong if you're a public official you better have some pretty tough skin and i think sending out a cease and desist letter telling a small business couple that we're going to sue you in the midst of already take your ministry of about the other actions because a lot of your answer was to put it in the context and my question here is again you have a pretty conventional fire between a regulator and a regulated entity the person being regulated never likes having anything done to them the regulator when pressed says look i'm doing all this stuff to other people is that always going to be a question of fact or how do we decide where the line is between i mean every taxpayer when the i r s comes after them says hey look at this other guy you didn't get him so how do we draw that line s is so that i don't like the i r s because i'm paying too much in taxes in the i r s does nothing or if the i r s starts to conduct audits of charitable organizations and says that those charitable organizations are  would then cause this individual taxpayer who has been making public comments about the i r s to have a cause of action because if they can articulate the plaintiffs if they can articulate a set of facts that this action is a and here is forty seven other guys the did the same thing and they were all audited so how do we you know where do we make that line and i think with those here it does appear that there were there's indications that they held hearings on a bunch of other people over time that all those exhibit a one through eight that's if you're looking at the facts as presented by the defendant as opposed to the standard in the a pure scam of an administrative hearing everything the appearance counsel just said was disproven at that administrative hearing the meadows go through this it was like a four day administrative hearing where he becomes the the  first person to have his permit withdraw to install license install septic systems in trumbull county and they hold this very long ministry of hearing at the end of this administrati hearing when myself as the the lawyer start to question the board of health the people who allegedly the board of health gathered up to make complaints about the meadows they literally dismissed the proceeding and say we're not going let you go for this dog and pony show because we don't want to go any further and they literally stop the administrative proceeding the hearing officer that they actually hire writes a scathing response in his ministry of hearing decision to say that in and of itself was a violation of my client's due process because they had a right to say look i need my permit but what they do is they create this process they hold us permit back for him then they make him go through this administrative hearing they don't even let him put on his case before they decide to adjourn take no more evidence and then dismiss the action without anything further going on in them causing the ministry dismissed the action i was a little puzzled by that i mean normally in a in a lawsuit if you dismissed the action that's it there's no decision there's no nothing here they quit presenting evidence after some time but then the officer didn't write an opinion so is there something that is different from a normal voluntary dismissal i'm sorry your honor i misspoke it wasn't this missile they just they shut the hearing down because they're putting it means shut the hearing down that is if you walk out of here and say i don't want to talk anymore you haven't shut the hearing down we'll go ahead and decide the case so what did they do that you called studying the hearing down well specifically myself on behalf of the meadows i was then had a series of witnesses i wanted to present evidence in this ministry of hearing as to how that their process was selective it was arbitrary it was unreasonable and so i bring all these witnesses for the administrative hearing they don't allow me to put forth my witnesses or even put on very meadows and d n a meadows at that point in time in the hearing they say we're not going to take any further evidence regarding  proceeding and i'm i'm arguing the ministry of hearing officer that i need the chance to present my client's side of the story he said look in this is in the record they run the hearing they being the trumbull county health department runs the hearing they're going to make the determination of of what they want this hearing to look like what evidence they're going to take if they've made the determination of the hearing is finished at this point in time and they don't want you to cross examine and your i had him on the stand i had the people from the state department of health had all these people listed and they literally just stop and say no more testimony but then there is their resolution you know the hearing officer makes a decision your honor and  really blisters the health department's decision is in favor of you yes yes and in the end he goes on at length to talk about how the meadows weren't given all the violations in alleged that the parents council just talked about none of them were proven counselor talk about factual matters i want to take you back to that eight through one through eighteen are you saying those don't exist or there are you know illegal did you submit something that said that those those things are not factual yes your honor in that administrative hearing we had in the administration on the record before us about the things that they did and all these other folks that's in the record before the district court and you know when we're asking about did they do things to anybody else i wouldn't think that you did that in the hearing before the but maybe i'm wrong tell me is there something because you kept saying below at least they never did anything to anybody they submitted papers that unless they forged them seem to say to the contrary did i miss anything that you raised a genuine issue of fact as to the genuine of those previous hearings yes sure and i believe we we entered into evidence the hearing officers decision in that that a ministry of hearing case so the ministry was hearing that decision say they never had any other hearings yes it did us that that hearing goes over the fact but i still want to say your honor does despite that what they were if i read the hearing officers decision i'll find something that says that exhibit is a one through eighteen are all forgeries not that don't exist and not they didn't happen not those are forgeries your honor that they didn't happen they didn't prove there they didn't prove the existence of these allegations these allegations the that that whole list of a laundry list of all they had ever had any hearing correct you know if you if you read the hearing officers decision the hearing officer will states in his decision that those allegations made against barry meadows on his his but that's not the ad that's not an allegation about about these other people what you're saying is that they didn't prove their allegations against mr meadows i'm asking did they actually have hearings for anybody else because below you asserted and judge pearson agreed with you or stated it that they never happened and the hearing officer didn't talk about that did that he may have your own i quite honestly  the court my colleague challenge whether or not even these discussions should be entertain a qualified immunity and this goes to the issue of a clearly established right where there was in fact any anchor section with respect to the  record the administrative proceeding is not in the record although i do agree that the administrative decision was on the record but what we have submitted through the f david d statement as to why that hearing was closed off despite what my colleague has said these previous fifteen things were usually administrative routine matters in this particular case my colleague protracted these hearings i wasn't there so i'm just telling you what's in the affidavit to the point that the health department just decided it had to just abandon this because it was taking too much time and too much effort the notion that mr meadows registration was this industry to process they alternately after three full days of hearings knowing that this was going to go on for weeks according to my colleague they just said well we'll just stop the administrative proceeding essentially resulted in a finding for mr meadows the license was really administered to him in other words it was his application was approved for the fiscal year two thousand and thirteen although it wasn't approved until april and that had to do with the consistency in constituency of the board of health install or permit renewed so why does that not establish a fact question because in the record we actually submitted through the affidavit dr and your the official public records i mean these are public records they're not just things that we created off our others that your position that's why you're arguing there is no issue of fact here yesterday i have one question for you and goes to the issue that judge bugs was raising earlier about a cease and desist letter whether that constitutes state action and if it doesn't  difference can't that letter be reviewed for motivation on this issue of retaliation regardless of whether it constitutes state action well i think it can and that's why i think when you actually read the letter itself and see how it's articulated the word of the drafted it was very point specific addresses just some of the allegations and yes arching the the statement basically says we just want you to stop and cease and desist these defamatory comments and here's why it didn't say take down your blog take down your facebook it didn't say you can't come to our meetings you just said stop this stuff that we are showing you are false and defamatory thank you thank you case will be submitted for my call the next case