need to reserve maybe five seven minutes for rebuttal in this particular case we're dealing with sexual expression which the case law is unanimous and we put in our briefs that's protected expression so long as it does not involve obscenity or involves children this is not the case this is clearly pornography on the internet it is protected expression to any citizen but we're dealing with a public employee and based on a supreme court opinion in row two tests were created out of that muddy morass called public at the national treasure case and said well no situations where we have speech or expression not related to employment that takes place off duty not involving the employer that does not relate to employment we're going to do a justification there has to be a reasonable limits to that justification when you're dealing with entertain an expression that has no relationship whatsoever to do with the police department it was it has no relation to what they has nothing to do whatsoever with the police department ok plays out there too and in our in our opinion roe we said it did the supreme court didn't really say that was wrong but it's not clear from so it's any way affecting or interesting to society and meets this broad public concern yes the supreme court roe brought that public concern to us then and said when we're dealing with speech related to employment if they provide some information a better be of benefit has  some benefit to this conversation and interesting science and well even to non related cases you have the public concern requirement but then they said everything concerns the public  correct in my mind is to argue that there is no per there is no public concern test on the national treasure the first test is it makes no sense and i think the trial court found that and i'm not asking the court to reverse that and they haven't appealed that and i think the trial court and i argued at we have before i can use to that is first amendment right for what it's worth and we've got the effect it has it has on his employer and employment and that's where i think the trial court there is there has there there's clearly adverse impact on the mission and purpose of the employer the lawyer if there is that adverse in fact however the case law national treasure and roe and berger and flanagan all talk about that that has to be from the speech itself the officers out of eight hundred because they were asked questions about it that's the that's the adverse impact that didn't come from the speech that didn't come from the website there's nothing in this website that adversely in any way impacts the mission and purpose of the police department not like there was in roe there clearly wasn't real but not here's none of that this was kept private confidential you had to pay to see the site there was nothing about the police department in there my client who was the police i was his face was never in there there's nothing to tie it in you can find more found that there was nothing to tie in this web site with the police department and just children found out in a row there was plenty had a male officer stripping and doing his thing in that in the supreme court said wait a minute that was related to his and well his employment in law enforcement and that adversely affects other self the speech the web page what he was selling impacted the mission and purpose of the police department there was no question robe it was  society and i think we're going to get a burger are the law and i think they're accurate i think they're clear that if you're talking about impact adverse impacts we're talking about what goes on the police department chief harris testimony is critical on  retaliation case and you have to deal with the roe opinion to find out one if this is protected speech if it's protected speech under the roe analysis and national treasure then you go down the chain it was or have are simpler than action as a result of it based honor some officers in the department began looking at the website he got a call from a friend i mean the e mail saying is this you they respond yes it was that person was in dispatch if you're familiar with what happens when information the briefs which which we think is is the pretext completely so ok so why is it still not understanding why is your argument not that because the speech was protected that he couldn't be there's no justification for action they had have adverse impacts in the internal operations they had only they had no adverse impact internally nobody officer would work with him anything like that you only had this after he's already suspended is the there they asked him questions what money are you making and we believe if you look at those lies individually they're not the state of arizona did not remove his license so we believe that they're all pretext but we don't think you have to even deal you have to have other reasons separate an aside from those and we believe in our gold a case that this was a retaliatory investigation that there are grounds and lies would never have occurred but for that website their investigation would never have occurred but for that business on the society or something my as a hare he wasn't terminated for that there was no challenge against him there was a policy about getting approval but that was never an issue he was terminated for his conduct he was terminated for that website for his involvement in and i think that that is really clear when you look at what judge hears testimony look at what he wrote here haitian and so there's no question about that the third and i want to serve a few minutes i want to deal with this issue and that is i was a woman i would work for the police department clearly speculative he has no idea he can't be saying what a woman would or would not do officer hodges said some females asked him when she was out on recruitment some females him about it asked her about it so she concluded that while it may be an impact on recruitment the evidence is that we present there's no impact on recruitment they are up they hire from two to four to six six i think is the highest in one year females they have violating the heckler's veto they have no justification that they have presented because she fares was very clear there were no internal impacts none so they're in trouble in that particular situation because it's protected conduct they can't terminate him because of it there's an adverse employment reaction and they can't meet their mount that the healthy analysis on finally your honor in a minute i want to talk a little bit about the second unless there's a question you're on talk a little bit about the second appeal that is the sanction appeal i think first of all clearly that needs to be reversed because any sanctions would be against me it is quite clear from the pallet reply brief that in the of and the court's order t to the court the evidence from their own public record city of chandler saying no years been no impact on recruitment you know why did you bring it before the superior being for the district court judge even make that argument two thousand and four and that's what we got sanction for where you got sanction for saying in my own mind and i never went back and looked at i had a calendar to look at you know unfortunately when she filed a roulette motion the course of her hearing within six days i came back from vacation and the next day i'm getting a phone call why am i not in court so i never had a chance i can't it was set for september i had a calendar to come up for my review and so i argued it in my car on my cell phone and if you look at my argument that was the argument i thought i had made you can't catch somebody more on the cuff than that i was honest that was the argument i thought i was made  court said well that's clearly job really gets you no employment connected a couple of things your honor actually the way i look at the row case is different in row the city of san diego police department admin of the conduct was not job related and what the court did in the comment that i think judge brinn in his referred to earlier said well the issue isn't really the way i read it so the issue isn't really whether it's job related it's whether to harm the employer and it referred to that admission by the police department where the police department minute it wasn't job related and said really what we have to look at what they were saying and what the court looked at was the harm to the employer the reason the court looked at what the officer was doing stripping up the uniform and i believe it was actually masturbating and he was selling the tapes and even he was selling police equipment and other things and even the court looked at that because the court was projecting what the harm would be because in rove very interestingly they didn't have the manifest harm in our case we have we the record is replete with the manifest time in other words we don't have to go look at the nature of conduct with regard to applying the roe case because we've got the manifest time we have got the comments to the officers we've got in it's officer hedges now i just she was the person who sanctions he left a blank for her name but it's officer annie hedges and what she testified to in the marriage hearing was that she responded to a call where she was trying to quiet fight in a bar and what happened was one of the participants started gyrating and saying hey take it off take it off and and slashing money at her and the two bouncers from the bar had to run after the guy and then all of a sudden she becomes the focus and instead of these law enforcement purpose that she is therefore to stop the fight she becomes an event that creates more disturbance we have now time here and so the reason i say that this case is even stronger than the roe case is because we don't have to look at what he did in project to harm all we have to do is look at the harm and apply the roe case and the roe case made it very clear that where there is harm or the officers activities and it says here i'm reading from the decision itself well outside the workplace then purportedly about subjects not related to his employment injurious effect on mission of his employer and we're not entitled to first amendment protection under the n of cases n t e u the supreme court has told us is not even apply in a situation like this we have a manifest harm we have more than they had in roe i want to step back however and talk about one of the most fundamental things in the district court on this is we don't have any public concerns no protected activity and i know the court was asking some questions about whether that governs the issue when and it in don't you have for example  photographs protected and here i say there is no protected conduct and that's what the district court found here there wasn't any expressed of contact there was nothing at all of that nature and in fact the supreme court said it had no difficulty finding that there was but here's what's interesting about this case and this is kind of where dive alyson a catch twenty two that one has admitted that all he did was act as a prop for his wife his wife testified she was not trying to express anything she was not trying to is merely shown in in little body parts and the pictures really of your wife and what she's doing and these are his terms that he's merely a prop then you're not engaging in any expressive conwell act that takes all kinds of actors right out of expression because they're just you know extras or minor characters or and so i think that it seems to me that's a hard argument i mean i understand your second argument which is that it's not a matter of public concern and probably that's a viable argument but i'm not sure that it's a requirement your honor i believe that in there were two things in the row case and it said it talked about where there was harm n t e u does not apply and when it's said that when speech does not touch on a matter of public concern we don't even get to the pickering balance test so in our case you apply the same analysis there is no difference between our case and the roe case which is governing except to see that in this case the harm not why is it in the sense because of the testimony we had about the impact on the officers on the function of the department and i correct that was terminated after it became publicly known that he was that he was the one who was doing this he was terminated after the department sound out about it and mr nolan is right that the way the department sound out about it was that someone in dispatch had heard rumors and somehow the site was found and they got on the site and they sent an email to caitlin who was actually megan duyvil said hi megan and then called to get megan and got ron said this is where one of his items of misconduct came in for which he would have been terminated anyway he said if anybody ask you you tell me it's not me he was urging the dispatch employee he spoke with to lie to anyone in the department who asked him about it and it was from that sequence of events that the website became known and it was after that that he was placed on leave and investigated and eventually terminated not just for the website but for the lies by january i think january twenty fourth and i think the the this is spencer and messy went out just about that time january twenty with any idea when the media found on the newspaper clippings presented there's one is early as january twenty fourth at least i guess what i'm saying is to this city of china it would have been irrelevant as we they were going on separate  except to the extent that when the media did become aware of it as when we had more derision on the department that caused more disruption and more officers who were ashamed to be seen in public in their uniform and who  were accosted in public and additional negative events occurred but it's not accurate to say and i know that mr nolan as made this argument it's not accurate to say that nothing would have happened had there been no publicity because the events that were impacting the department of around the department came equally from the knowledge of the people who found the website and spread the existence of the website and then there were incidents when a supervisor thought he had heard something about the website and asked mr diable about it mr di lied about it and so we got a sequence of lies about the website some of which occurred in the internal affairs investigation some of those lies occurred outside the internal affairs investigation the lying to the supervisor the encouragement of the dispatcher to lie to anyone who asked or who which would have included supervisors that was misconduct for addressed the city manager has made clear he would have been terminated anyway so when we get to the healthy argument and talk about whether he would have been terminated anyway it's not accurate to say that the misconduct that got him terminated arose only the internal affairs investigation asking questions specifically in south website itself he told lies separate and apart from the internal affairs investigation  of lies of course our position is that he could be terminated for lying in the internal affairs investigation anyway because that is basically a police department you lie you die but that is  not something that arises only from participation in the website it arises from illegitimate internal affairs investigation we have the testimony of sergeant austin he says you know when you have facts that tell with another employee who happen to be a minor at the time and that of course was not protected conduct and the person wasn't fired for that but the question is where is the police department when they are just starting to ask questions are we to say never ask  question because what if you run up run up to an issue that might be protected know we are entitled to ask our questions to find out what happened and if mr duyvil is going to lie he's going to suffer the consequences and then of course not only did he fallen within the context about which they could legitimately ask in the courts that ok that went too far but to ask about sexual conduct is something that a police department can ask about and and here the police department asked reasonable question arising out of the information that receipt what do you do with the hecklers legal cases flanagan and her you're you're saying that the police earn you know uniform and things like that but in vermeer for instance they say the court was very sympathetic to the police department so we know all this kind of this expressive conduct of appearing in blackface by one of your policeman herman the police department's relationship with the hard won relationship with the black community and we know all that creates problems and everything else but we we impairment of working relationships there were some african american officers who were not at the party who heard about it who raised the issue but nobody came forward and said here's what happened here's how i did it cost it was your testimony here that that we can't work with veto by analogy we've cited to the meltzer case which was the case where you had the teacher who was a member of the man boy love association or society whatever they called it and the court said that it was appropriate to terminate that teacher because of the parents outcry regarding the teacher's membership now dissociation because that's in that setting where you have a teacher that has to deal with parents and the public that they actually analysis and that this is not a heckler's veto at all what it is this we're saying that it is internal and external disruption because the police department cannot effectively police the public feel that they have no respect for the police department and things are going to happen like happened to officer amy hedges when you go to keep the peace and you become yourself an object of derision and something that creates more disruption it's exactly the kind of disruption that roe says hey this this is something that is not allowed i don't know how much it's and role it's a little hard to tell sometimes her role is going i mean in the in winding up their opinion actually rose expression was widely broadcast linked to his official status as a police officer and designed to exploit his employer's image that's  you know i don't think it's different i think the reason they were discussing that the reason you have that language in roe is because you didn't have the manifest harm to the department and so the court is having to say what is the character of this conduct which is going to create the harm in our case we don't we don't have to do that because we have the manifest time which by the way we didn't have to show but we did show and therefore the court the district court here wasn't in the position of saying ok let's look at for example when duyvil told his friends about the website and they also joined and they did put a police uniform on the website and they did have a police officer with the chandler uniform knocking on the door and seducing a woman we have that evidence in our case conduct everything creates a legitimate concern to the department because if they can't do anything about it then we're going to have more instances like that and i think that's the difference here i think the reason that the roe court was using that language is because they had to project with the harm could be and what the risk of the conduct was in here we don't have to do that because we had officer after officer after officer who filled out the forms who talked about the problems in policing we had gaylord and hedges who said something and we had upshot is that something about recruitment and then we had people who talked about the problems that embarrass them they didn't want to wear the uniform and you know the son who wouldn't dress as an officer if i can your i'm going to talk briefly about the sanctions and these the court did appropriately sanction mr noel for the arguments that he made were inappropriate he said several times today that we have waged the argument of harm to recruitment and i don't know where he got that that's never been way it was mentioned in the briefs it's not appropriate to say it this way but what was really harmful about what mr mr not did was in addition to filing his motion which was inappropriate to choose these two sworn officers of lying when in fact if you look at their testimony it's not even capable of perjury so you never had any proof that gaylord for example didn't feel what he actually did hold the opinion that he expressed he didn't have any evidence that  y had just didn't say questions at five different trips he had no basis for making the arguments that he made i heard mr not say here today hey it was caught on the cell phone and you know those are the arguments i made the reason he was caught on the cell phone is because he didn't open the order or he did open the order the night before but didn't show up for the hearing he wasn't familiar with what was in his pleadings he filed an incomplete draft he made an argument that had no legal or factual basis on the stake in the order for sanctions placing the sanctions on the parties not on the consul now i don't see how we can avoid reversing that well he says for his role levin sanctions in the  in his july eighth two thousand and five order that the ruhleben sanctions and the fees and costs regarding the motions for a new trial are against that's the interim order the final judgment the final judge appealable order to that as i didn't see that issue being raised and that would be very unfortunate and i will be back here again i you know that the federal court referred mr knowlton ok i'm sorry yes thank you i want to just deal with a couple things and i thought i would deal with the role of opinion i'm still not sure what she means by roe ejecta fine again our tag i just don't see where the court even addressed those issues are having to do with case we're talking about whether the there's a public concern the court was very clear when it said the present case falls out the protection afforded an anti you national treasure the authorities then state control and when you read the court's conversation about ambers adverse impact that the speech at issue even arguably had an adverse impact in roe the speech issue that tape of that officer stripping the impact of the operations of the police department nothing about this website in any way shape or form impact the operation it was the press and i think when you look at flanagan and you look at her tax they're very clear on this point and it sounds and i'm reading from very content of public employee speech in which case the speech presumably would not be within general first memory protection we think this sort of threatening struction by others reaction to public employee speech simply may not be allowed to serve as justification for public employee