my name is scott lively along with ms richard ackland we respectfully point out that our clients are present in court today and i'll be addressing the first amendment and free speech flames and pickering as it applies in this case and mr ackerman will address the equal protection claims and standard of review issues this case is about the speech of my clients where the city of oakland can restrict my clients from using the phrase natural family marriage and family values under the city's anti discrimination policy the city claims the defendant's claim that the term that demeans you graves shows hostility or aversion to peoples who were members of protected groups and they say that that this phrase natural family marriage and family values demean and shows festivity toward or covered under the category of sexual orientation both sides agree that the the case that rules here is pickering and the balancing test that says that address the first amendment question that pickering was used by this court in two cases that were cited by the defendants a first was lumped in versus brown and the other was peterson versus hewlett packard workplace or the facts in this case are very different my clients math the challenge of the promotion of the of the gay and lesbian position in their workplace not with attacks on the messengers or with attacks on their employer they invited coworkers to dialogue on the issue and posted a flyer that just simply said these are the issues we want to talk about natural family marriage and family values they didn't even express their opinion about those on the fly or the city took it out of my heart figure out  or what their names are yet but that but yeah but these are stated in the in the most moderate possible terms i can think of terms that would be more moderate and that would strictly try this to come to a forum to discuss whether same sex marriage should be legalized yes that would be stating it that would be say actually in a neutral but my clients are not in ny the ability to express their church to indicate where their position is suggest people who don't fit within that framework that they don't have integrity i mean i guess the word integrity is the one i sit there staring at that fire and similar what exactly is being suggested by this flyer that if you if you are married to someone of the asa gender you lack integrity the the flyer i dress those questions of sexual morality and my client's view that does raise questions of integrity in the workplace whether or not the workplace is going to be a place where this particular speech is going to seem to be one sided and and then that that challenge was with which i was doesn't seem to say we shouldn't talk suggestion we don't want so many of those people that are here into the standards if you want to why we have too many of those people in this workplace that something's wrong with the workplace part of preserving integrity in the workplace was there any suggestion that integrity wast other than the notion that if we have too many of those people the workplace we're going to go to an all existent addressing the people it's addressing the subject matter and the integrity of the workplace goes to the question of of certainly they they could but there are question comes down to what they did say if it is disruptive enough for the workplace to fall under a category that's equal to someone saying that men who have sex with other men should are deserving of death i mean this is we're talking t clients have a rather low level of protection in taking things that are likely to incite concern and problems within the workplace and the work that the balance is not clearly in the favor of your folks they're allowed to advertise a meeting there are allowed to invite people to come to it and the city lets them put was the dissemination of an e mail through the city wide you know system about happy coming out to me and that included an invitation to a rally against hatred and bigotry and and and death and the restricting the speech on the on the flyer that's just simply cannot stand that silence is the viewpoint of an entire category of people that represent millions of americans well i pose the question to you to see who's agree that the city is not does not have a understand judge walker's frustration with his case but i think the city has some serious questions to answer on that front too but there is a difference between saying i take this political position on an issue of public concern and i don't think that person over there should be allowed to is like to the contrary they're saying in effect by fighting insisting upon preserving integrity in the workplace and suggesting that that's inconsistent with the persons who are homosexual being employed there doesn't that say to those persons who are homosexual you shouldn't be here i don't think that it says i mean how can how can you really end just the idea that you think that that you hate homosexuals just because you your you want your workplace to have integrity regarding the subject matter that's being this discussion the this is the controversial issues of the day that's it that's all the flyer addresses it's not the definition of integrity well i haven't looked up the definition recently but integrity has to do with your standards of ethics and   statement there's no accusation there's no posting in talk or is this court even suggested that that it would be acceptable for someone to post a something on the ball more this is homosexuality is a s and so i put bible verses in support of that this is far less aggressive against the homosexuals ition than that would be and and frankly if you saying that you can't discuss or you can't use the terminology natural family marriage and family values you simply silence all speech from that viewpoint there's nothing else you can say fox now it's six forty am and you indicate you want to take a few minutes and leave the complete repudiation of the constitution then we're not going to get the qualified immunity which ties right into the questions that judge fletcher and judge put kind of raised with my colleague which is is there anything in the record to suggest that we do indeed have a constitutional battle rises to the level of being a little more than two employees who simply can't get along and i quote from our six twenty where there's an e mail that clearly has my client on it and there are supervisory officials on there and it's about the happy national coming out day which we know my clients responded to in part with their own club and the flyer and their comments in here that say i understand this is a difficult concept for some who feel the bible teaches them that sexual identity is a gay or lesbian is wrong the bible also says slaves obey your masters and women obey your husbands i personally think that the good book needs some updating the psychiatric profession has since seen the light i think it's time for the rest of the world to catch up to answer such questions inquiry about is there anything in the record to suggest that we developed a situation where there was going to be an obvious conflict in the forum in the marketplace of ideas about an issue that was at the very forefront of the nation as a matter of fact concurrent with this we were indeed arguing the same sex marriage up in san francisco and we had the matter of campaign versus california families versus new some which was my case it was all over the newspapers it was unavoidable this suggestion that people would not be talking over the water fountain that they would not be talking in the conference room and that they would not set up quotes to talk about the issues  the court's questions is that if you open up a form as they did with the bulletin board as they did with the e mail system as they did with references to the bible specifically talking about how it needs updating this suggestion that an employer can simply say all right i don't want you to respond to it because your terms marriage family values integrity if we're going to talk about integrity in light of a seventy one the policy that was at stake here a seventy one sections seem to and i believe it's  is relevant they asked for the court to take notice of it late in the game as a matter of fact just a couple months ago they sent a letter or whatever saying that they'd like you to notice the very case or what barry talks about is accommodation very realizes that there are going to be conflicts between competing groups and competing ideas and classes of persons that fall squarely within those competing ideas and to the extent that that's true barry does say that we need to accommodate if it is true that they believe that my clients had a legitimate religious belief about this issue that people knew it obviously did they did as we can see from our six twenty and what are they going to do to create a peaceful environment in light of pickering but also in light of the fact that the city of oakland through its e mail system both on board and otherwise opened the forum right up as in rosenberger and as in the moseley form analysis although in mostly it was labor unions who were picketing outside versus the city allowing a dispute right within it's wor i think that if we look at the r four fifty one through four sixty six which deals with the testimony of mr bob he lays it out squarely for us and he was asked about are you aware of the first minute rights of employees answer yes what did you do to accommodate those first amendment rights you knew were i'm paraphrasing here but it is in the record of the are four fifty two through four sixty six what were you doing to accommodate and i asked you very specifically had religious sit here and ever  work environment in your entire tenure answer no you know if you have christians working for you know you know if you have jews working for you know you know if you have muslims working for you know you know if you have homosexuals working for you answer they're not shy about their position so there is that knowledge that we're looking for enhanced and that we're looking under project that we're looking under the now once a case of cases where you've got an ultimate supervisory authority with policymaking authority who has complete and utter analysis on your part and if you find that yes the first amendment was indeed in play here and you find it based on four fifty one through four sixty six that the issue was squarely before the supervisory body that was in control you're well within what you're talking about is you've got the parties are at issue so to speak between supervisor and employee under pickering under the pool and i submit on that unless the court has further questions of how thank you and that portion of the district court's ruling was not subject to accordingly along with my colleague mr locke is with me on the papers i represent two individuals mr robert barr who is the former city because i only represent two individuals the city is no longer in the case and is no longer deemed to be an afterthought respect to anything that's an issue here the appeal raises two issues one is the personal liability of my two clients and the other is the official life billet i think we can take the personal liability off the table rapidly because the facts are undisputed that mr barbour's the city manager had no involvement whatsoever with in the review of the flyer she did not participate in any meetings with the individual plaintiffs and in fact she did not take the flyer down her role was simply about six weeks later to really circulate administrative instructions statement that recently there had been an incident with a flyer that was deemed to be homophobic that's the word she used after an investigation by the city and it was taken down and she reminds folks every employee in the department that depositions and that's in the record so long as that verbiage which was the part that was determined to create the risk of anti homosexual sentiment and actually homo sexual harassment so long as that verbiage was removed so this dealing here with the context of a government employer we're not dealing with the traditional first amendment notion out on the sidewalks and streets where anything up to fighting words is permitted see here and this is again where the qualified immunity test comes in an disruption rather in this case i think it's an easier call because the speech in addition did cause a disruption your honour's right this was not a case in which hundreds or dozens of people were severely disrupted we have much more from the discovery that scientists use on the subject not correspond with use those same channels of communication to teach in circe speech in the workplace i think your honour's both acknowledged that the one speech happy coming out day does not violate any anti discrimination policies it is  an affirmative statement of diversity whereas a statement that disparages or that poses the risk of anti gay harassment as does the player issue here with states clearly let's get together to be part of integrity in the workplace that's which plainly on its face and as admitted by the plaintiffs in their depositions is intended to exclude gay men and lesbians and to convey the message that amun and lesbians do not belong in the workplace or somehow spoil the workplace or that by virtue of their admission to their sexual orientation they are somehow just guessing private sexual practices that somehow this mer counterbalancing form of speech that might be true on the sidewalks it might be true in many other public forums but it's not true here for is this city applying any kind of objective measure of disruption and deciding my concern really is i look at this flyer and it's hard for me i understand there are people that react quickly there are people that find the earliest stages of of something that's going to lead to an insult and i can understand the serious concern muffler that you get out of hand but the level of destruction from this flyer in miss jennings reaction really wasn't to the flyer as to the fact of the discovery that these people didn't have respect for her lifestyle that's not the as judge walker found in in doing the pickering balancing test sheir where there has been an actual complaint that a hostile work environment has been created not just by virtue of the flyer of though that is the backdrop this flier was posted in various not just one bulletin board but in virtually every bill engine board in this particular government unit including right by ms jennings just including right over the copier that governmental employee as members of the public are not free and they're not in a location where members of the public my community post something about you know puppies or whatever it might be so the only argument that that i think the  is that somehow the city created a limited public forum by a wing or at least by they claim without any evidence in the record of allowing certain things being posted about i think puppies and osama bin laden and the breeders having a terrible s bulletin board the i think the only a on the bulletin board per se would be a i seventy one which is the anti discrimination policy and here again it's not the by virtue of the plaintiffs membership in a particular religious and it's not because they are christians that is not why this particular flyer was taken down they could have been coming from a secular perspective or any perspective the point was that this particular language actually flyer because again the context here is that alternate channels of communication were made available to the plaintiffs they were not told that they could not meet they were not told that they could not form their group they were not told that they could not speak about  and the first two were no personal involvement and actual disruption the third point is that here no adverse employment action was taken against these plaintiffs and in every other case decided in this circuit and the that has dealt with the pickering conic and pickering balancing test what has happened is the government employee has been terminated demoted fired lost some form of pay or running governmental workplace i don't have anything further to add your honor i'd be very happy to discuss the other issues i know i only have about two minutes left that were raised in addition to the free speech or for the symbole association and equal protection matters though i think those are fully addressed in prospect of relief that was we believe we submit the judge walker correctly concluded that this case raises a very narrow factual question of this particular flyer and that the parade of horribles and the slippery slope that are my best to make if it meant one thing that's being last year is that how we got knocked out of the trial court level was on a motion for summary judgment and many of the issues that have been talked about today including what was it martin luther king was  the iraq war was it the chicanos offer day for the day of the dead which of these items here in the record was as she indicates simply neutral versus that which gave rise to this battle between two competing views and the standard on a motion for summary judgment is that you're to view this in the light most favorable for the nonmoving party which would be yes if indeed there is a factual issue and we submit there is and i think that today's arguments underscore that fundamental point and it also ties right into the immunity issue there are preliminary factual questions that need to be addressed in this first amendment context under full which is time place manner the context and how it affected the performance of