carolyn can you see the podium or i turn it a little you might be a little muted i can see it it looks good it looks like let's get the st one up and then but i think i can see it fine ok so judge king is participating and judge duncan is to my portion of those dealing primarily with tanker issues of free speech but i'd like to deal primarily with is the qualified immunity issue i will i urge that under recently i was just those before i got on this court and there are lots of different opinions in that case but it's pretty clear to me that bell involves speech that is threatening in some way it's clearly  it's it's threatening speech that's that's the rubric that the court adopted and this speech seems not only does this speech seem different because it's more of a low garrity lewdness kind of analysis but  also you know here we have we have sort of we have an extra curricular activity layer on top of it was we're not talking about kicking students at a school or suspending them we're talking about their agreement to abide by some kind of constitution to be part of an extracurricular activity so isn't isn't delta sort of not in i'm asking this do you think bell really provides that clearly establish is the cases you're relying on in each of those cases the courts actually upheld the school action so so we'd be having to extract a fair warning to officials from something that actually told officials what they did was ok for the violent wrong case all the way to jackson the cheerleader on the bus case both times our court said you know it would these it's protected speech but it's not clearly established is that correct  yes so it may be an unhappy and not giving guidance to people but but we seem to be in this sort of frozen state of it's not clearly established the rd circuit taken the next step and said it's  but we've we've had some battles on our court about that that's not for us to do to revisit the whole qualified immunity methodology well if you reject our argument on that basis then perhaps  it ourselves and let's assume you're right and in puerto we did say it's indisputable off campus that isn't directed at or doesn't substantially disturb so you're right that it is clearly established what about my colleagues question where's the case that says that's true for an extra curricular activity that by its nature is off campus but it's a school activity travelling around farms we would say that's not the issue well limited because it was cut off before that so with the whether or not there was a motive that was improper and doing this but what we would say is that cheerleading is like gymnastics that's a red card i would assume the coach could say all right i'm a discipline you you're actually just put us down a player on the field i think that's true oh on the field or in a rally those are all  say i'm a cheerleader then a fire suffers that but it's it's absolutely outside of any kind of school context there's no to no rally going on there's no it's not and every one of the other cases cited in bell involves something that happened during a school activity and the valverde one especially which i think is where you are just as you're looking at the v basically what we would say was all of a sudden yeah if you cannot exercise free speech rights for students of course not per perhaps you never were several post that were made by the student who because of the host she was she was punished so and we do consider the factual move from this extracurricular activity as a form of discipline or a form of punishment by the school what's your best case for that that a coach a coach disciplined in an extracurricular activity and this when the record reflects they travel to london the coaches can't can't discipline for profanity yes and i would say that while they're of these incidents involving the student occurred while she was at home using her home computer texting at those early liking i'm sorry that's not the gatehouse to the school you're saying the school would still extend when the cheerleader group is doing its events or goes to london but it doesn't when it's in its home is that the argument is wrong and what's the case that describes this moving school concept but home still the bubble i think i think the case in part to make control would be the poorer  in the porter case as accords where it was a sketch that was drawn by a student who had no intent for it to ever be coming to school and two years later his younger brother inadvertently brought the sketch to school and it depicted some kind of horror at the school and so there was found that because even though it came out of the school it depicted the school it depicted some kind of a magic mask or at the school the court held that it was the intent at that time that that that document was sketch was never to show up in school and that that was to controlling factor in this case were were it was of course is a strong case for you to write because the supreme court says fraser hold garrity doesn't go off correct as correct but in mor it's interesting that the one circuit decision cited for the uncertainty in the law is our porter decision yes that's that's correct but so if porter in two thousand and four is making it clear that the stuff in the home is protected why would the supreme court be citing porter is uncertain about the law i'm not i'm not sure why you would be siding citing it but i do think that one of the holdings in puerto which i think is is it should be controlling is considered controlling is is that it says you look at the intent you look at the intent of the speaker in determining whether the off campus speech been addressed is subject to a tinker analysis and so i think it obviously each case is a case by case determination but i think you have to look at the speaker's intent when it and of course porter and bill are addressing the issues that occur off campus away from a school function not that it is the intent of the speaker i would have thought it would be what's a reasonable here are the true threat context for bell i thought the analysis is with the school reasonably have felt these were threats coming back again but i believe i believe that we have changed and then courts have carved out in exceptions to change they'll be in one a dense and that goes to how to take the context of the speech that was being made by the student here we have in this case we have st we have off campus so we're outside of the of the schoolhouse gate local parental should no longer be an issue because the child is now back at home with the parents what what could she have said on the social media state the you would agree she could be disciplined for her would you say anything goes well that's a obscenity but well your honor and the little distinction in this case is that if you look at the post she never said anything she just liked and effect in fact if you look at all the posts there was only one post where there was a question take that down let's say she refuses well improper to discipline she's in her home but they've notice she's got the association with the cheerleading and they don't want the n word in profanity anywhere near the organization if she refused would they be able to discipline them well i mean following your scenario you're out of it i believe that if she's directed to take it down and she complies then then i think we're ok but if he doesn't comply but if she's asked to take it down and she somebody sexual activities with some guy well right now you can understand why that is why i don't want to cheer the captain the cheerleading squad of the captain football team talking about that on social media that everybody can see that they were talking about we're talking about what point can the school interfere with the parental rights or what a parent will allow i think the school could have said take down the fact that your head cheerleader up your off your page is not affective  here it's lewd sexual contact at lilu sexual speech i mean do you think to the school has an interest in policing now on i'm not saying it overcomes of st amendment rights but well i've been i think we started in into  so and again and again and it and i think the distinction here is she never actually wrote any of the profer words that you would see up profane a me one of the profane terms at attributed to her is that there was an manual that the team and team member and her peers to the prescribed a higher standard of conduct and that the only discipline that was inflicted upon her was regarding the participation in the team and that the supreme court for half a century has been quite clear and thinker seems alive and well that government officials aren't going into people's homes to say this is appropriate speech or not and students get protection in their homes that's for the parents a cheerleader quite cheerleader case so the distinction you're drawing is extra curricular cheerleader does not equal student as it would not be but the only case you gave us for that is the th circuit decision  be accurate and then in that case the court emphasized the participants have to respect their coaches but the only authority cited was proverbs it was a biblical authority is that correct your honor i don't remember  i feel that it was a little bit more xcode explicated was there any authority other than the bible for the notion that there has to be respect not in the wildland q ok but that's what i'm focusing on because that's the original case and the all the case they distinguish is the th circuit off the football team i mean that's that's political speech that's that's reporting a crime i think that's clearly distinguish ok but your point to me at the beginning was this the whole world that's different is coaches the students and then the  saying well that can be true enough if the speech is important enough political speech no your honor my point i was hoping to get sued was that this case when students are participating voluntarily in  agrees to participate and i didn't see this in your brief this is the argument so the these students in their homes that are sort of using teenage banter are equivalent to government employees or purposes of their voluntary know you're honored if you didn't get that i didn't do no it's not whether i saw it it's just you know what you wrote it's just a shift in argument i would my my gut is that maybe start with this thing for my for my benefit distinguish the porter decision it looks to me like this is like the kid in the hole in the does a violent drawing and then our court says as long ago as two thousand and four it is indisputable that we don't want government officials school officials censoring or reprimanding for something that parents should be doing your honor i would just assert the goals and aims of a cheerleading squad are vastly different from the marketplace of ideas that needs to be but just because she's a cheerleader squad member doesn't mean that plows to the government officials to sort of monitor her private behavior she wasn't cheerleading or in her home when she did this no your honor cheerleaders are selected for principles of leadership and representation and that's why they have include demeanor it's for things like hair bows because they understand that they are being selected to represent to perform in lockstep to rear regiment in uniform it's an it's an honor and a privilege  and it's a representational one and i think that that makes the right but it's an honor and a privilege to put on a football uniform i don't but it doesn't then mean you're you're you're losing your ability to talk about sensitive or even vulgar things i guess the i'm thinking of our own bank bell decision judge jones and judge l rod's separate opinion points out we don't want government officials even monitoring sexual dialogue there the hypothetical was let's say they want to speech think speech that's at the heart of the st amendment but that speech by a student who has agreed to be a representation of that student body and who is further but violent speech that's the same thing as portier slipping back the speech is protected when we say lou or inappropriate that's precisely what the st memes are protecting yes it's not obscenity and it's not a threat but i think that the analysis is incomplete if it doesn't take into account the action by the school district and how different it was in this case and the fact that she was never removed from the classroom never placed on suspension that she was simply removed from the team for violating that the what's the test i thought you know the test is would this chil someone from the speech they've just uttered do you accept that is the test your honor i think there are some actions that are that are so de minimus that it wouldn't chill but you accept the test but it doesn't chill the person of ordinary f ss from the protected speech do you accept that is the test your honor i think that has been the test but in this circumstance i just i've a kid that we consider the contractual relationship at play here now is that if you're accepting that that has been the test is the test is clearly announces the test then is your point this was de minimus losing your captain chip losing your memory cheerleader in texas i think that's a pretty big deal someone might not speak if they thought they going to get it all stripped off your honor for the purposes of trying to allow coaches to be coaches and to maintain unity and have efficiency on their team as we argued both ways contract or relationship with the school when she voluntarily undertakes that activity i assume that guy could be wrong that what we're talking about here is where the speech is protected in the analysis right have you even started talking about qualified immunity the officials and why we what your argument on that about why there wasn't clearly established law and so and also and i hope you get to this there is i understand there's a new civil liability question is will it separate from all this judge looked at the issues wrote well reasoned opinions and said under the facts of this case and we all understand how incredibly fact intensive free speech cases are especially in education what is your response to the argument that it is clearly established that off campus speech that is not directed to the campus so it's off campus it's not threatening this is not threatening speech it is it's protected speech and therefore students can't be penalized your honor i think th case fairly clearly left that question for another day and again i know i've said this but i think that the discipline that was actually inflicted does very much distinguish this case from those line of speech cases i  won't belabor the qualified immunity argument because i think i have to having the magistrate and the federal district judge look at this and say it's not clearly established it would be sort of a hard sell to say that our cheerleading coach and our principal should have had a better grasp of the free speech analysis than our federal judges but i will cite should we it probably helps your client and school districts all over the st circuit if we actually don't do what we've now done for twenty years and said well it's just not clearly established that that gets you into litigation like this would you agree with that your honor can i just would urge that any decision on that point take into account  what i think is an important distinction between school discipline and extracurricular discipline and that this may not be the case for that but to that point if the court is not persuaded by the argument that this should be more of a contractual knows no your honor where he said that basically said that frazier could never phrase or speech could never qualify under the substantial disruption speech undertaker i don't think that's a fair reading of the bell case and i think it sets up a rule that lead speech no matter how disruptive on campus you'd be comfortable with just not being bell on deval garrity if it is directed at the school parroting the principal the teacher's causes destruction then discipline ok no your honor for purposes of extracurricular punishment i would be for purposes of school punishment i think than tikrit thinker would apply and you would need a substantial material disruption or invasion of the circuit splits no he ought decisions in the rd circuit ok there is also a cheerleading off campus speech case that was decided in the one pennsylvania district court that i believe is on appeal to the rd circuit at this oh i don't think that i was for specially on the clearly established portion i would not lose out on a clearly established mr and the pennsylvania case that your court case did come out differently and are actually i'm sorry came out the same way on the free speech issue but again it i are back to my question we even if you prevail that it isn't presently clearly established there isn't fair warning i assume you'd like us to say what the law is rather than do again the porter to jackson twenty years of ambiguity that just spawns that a geisha yes your honor for purposes of school districts all across texas that have that would be helpful and yes what if we just said porter is the law it always has been and we're going to say it is the law again if you're doing it in your home and it isn't directed at the school or causing substantial disruption government officials can't go in and say this is inappropriate that's for parents to do is that will ok begins in joining on to you clearly brings up the internet is everywhere at once which we are currently experiencing in some format and especially for teenagers who fully understand and the i think the  this case had five hundred dollars followers on twitter i submit to you that at this point that might be a low number for a popular student in a large six a high school and that they understand that virtual reality does not stop at some artificial barrier that we are right at the edge of the school campus and so i think that is in him an important concern i think i understand just causes concurrence i mean there's some uncharted waters out there when you're talking about internet social media all this stuff i agree on and i think some of those especially those rd circuit cases that were decided five hundred and sixty seven years ago may have jumped the gun on understanding how it the internet was going to impact all of our lives and at that point students were posting things at home only accessing them at home or in a to action by a policymaker no they're not required to plead the policymaker and then we know who the policy makers is matter texas law is a board of trustees and it is the school board and it is beyond clearly established at this point that unless they take action just completely not that's the grievance policy showed that the policy maker the board of trustees has ratified constitutions actually extracurricular activity constitutions yesterday i think if they're we or evidence in the case that the board had taken action at their dinner i'm asking the grievance policy you know the grievance policy that we're talking about came in on the rule seven pleading i'd knowledge it's not in the it's not in the complaint but the grievance policy that basically says as i understand it the policy of the district is that was respect to district rules or campus rules or extra or extra curricular activity constitutions the principal has the final decision making  case where the superintendent had final decision making authority authority as to employee transfers and i did not by that fact make him a policy maker for the district and i don't think that principal in this case was made a policy for maker for the district just because he was the final decision maker as to extra curricular activity complaints but also mr that that part is no question from the pleading the principal sanchez is the one who's making the decision about the application of this constitution who knows where it came from who knows who it's a tribute to but sanchez is making the decision he's looking at this and saying inappropriate social media erap right and in your view is that decision making decision making not policy and i would further assert that in this case that policy cannot be the moving force behind the constitutional violation because the despite that policy the plaintiffs actually met with the superintendent groden i don't remember if it's in the briefing where essentially a spokesperson for the city made an announcement about a policy that may have been the crackdown policy in dealey square sure and so if you plead valid then or someone else with that sort of authority to speak for the district started these type what if they pled to i mean i think we have a case maybe robinson or whether it's been posted on a website you know post on the district website with would that be enough to plead no your honor district websites usually have campus components of those websites and everybody and their dog has authority to post things about what's going on in their closets from what's what their right right i understand that but do we have to concern ourselves with that that part of it in order to figure out well maybe it's in other words now maybe it was connected enough to the district but still we're looking at this policy we don't see that a policy like this even assuming it was adopted was done so with  enough order decency decorum and good government would permit punishment of that student if we know that that's the rule then we can act on it but what we have been told for so long is that undertaker and i was in high school when that came out when i remember what an issue it was that we do have free speech rights of students and certainly if it's not on that case it should we think about how that applies here since we've got a cheerleading squad the i think we have to go back to the constitution and i'm sorry it was not given that language was an inappropriate and my understanding as bones of that language and the power to do that had been delegated by the split nd decision and the language out of this case then we're dealing with is does this is out of the shoe shine our case which you'd ask about a basis there's public policy and require an exemption ability and public policy would allow the half to get a very well informed decision that they're making but would that ought to be treated differently than a police officer who questions yes you know what's your best case on the kind they're either like government employees in that context what's your response to that narrowing of their position there's no basis in any of these decisions that would say i mean there was a cheerleader  the every one of these cases involve something that had some measure of extra curricular and i just don't think there's any basis if i mean the drug law to drive up extra curricular activity around student newspapers extracurricular you're off campus we're fine on campus the editor gets to make the decision on that but that's been the destruction all the way through very interesting case thank you all