college professors who allege that their contracts were not renewed in retaliation for their free speech and in both cases the supreme court recognized the deprivation of the liberty interest in free speech can be the basis for a due process violation in the same way that the deprivation of a property interest in employment can give rise to such claim now in the section of roff where the court discusses whether there is a liberty interest at stake for the purpose of establishing a due process claim the supreme court wrote to be sure the respondent has a lead that the non renewal of this contract was based on is exercising his right to freedom of speech but this allegation is not before us the district court state proceeding on this issue and the respondent has yet to prove that the decision not the harding was in fact based on his speech and to be so in both of those cases we see just because of the procedural process for the procedural posture of the case and the way in which it came to the supreme court that the plaintiff had not yet demonstrated that their speech was the motivation for their non renewal but the supreme court did recognize that free speech is a liberty interest protected by the th amendment not in its order of the district court incorrectly or here the dis and correctly interpreted parea standing for the proposition that property interest in employment is required for a due process claim but that's not a correct reading of perry perry roth both actually support the  position here that deprivation of a right to free speech can give rise to due process claiming the th amendment as a deprivation of liberty interests now the th circuit's decision and encoding cohen violation of the th amendment but the court wrote that there was a violation of the st amendment through that deprivation of fairness the lack of fair notice so we brought i mean we've sort of the alternative arguments that was not fire non renewal so he was required and the discipline that was issued cohen was that he was required to explain his teaching style in the class syllabus to take a sensitivity class and to be sensitive to his students so the and separate from a free speech retaliation klein and either claim can exist independently of the other for example and co and even if the fair notice had been provided through more precise policies it still would be possible for cohen to a sort of free speech that you should not engage in conduct prejudicial to good order and we held that language we have helped our language and in the process of doing so we said that it was very similar to the conduct  yes ok so that that's and i submitted that case as part of our supplemental authority yesterday and it's one where i had to read this case a few times to to get what you know what the court was saying but you're correct this is a binding decision on this court and how i would point out that that the decision in davis versus williams held that that the it was only addressing the facial validity of the statute and if you look at this is reading from page one thousand one hundred and five dollars of that decision it says the court wrote and as we have noted the city authorities wisely did not bring to us the issue in that case you're dealing with the decision in that case was holding while it was deciding that this facial challenge to the statute failed correct but the court specifically rode that the city wisely did not bring to the court and has applied challenge insinuating that they had had that challenge and brought to the court they would have it would have failed and in this case  and if you tell it he of course is judge under rule eight and whether such a claim can survive a standard under a motion to dismiss which is a ball and tomblin so what she pled which is completely different from what she's now she yes but she pled it is due process and so analyzing her complaint as pled which is what judge cohen had to do clearly the th amendment claim was out because there are no federal actors in this versus fox has nothing to do with it the wrongful termination claim was duplicative it was it was already stated in her original complaint it was a st amendment retaliation case or claim i'm  terminating her employment based on her free speech she'd already articulated that so we're left with a a th amendment due process climb right and so what that has to be is either a procedural or a substantive due process claims she's admitted in her briefing and goes to great lengths to tell us that she has no for sujal due process and because she has no property rights in her employment what she claims in her reply brief is instead that her due process claims arise in the city's infringement on her free speech rights this is this is  the more particular claim under the specific constitutional provision and not some notion of substantive due process controls and in fact the plaintiff is provide as provided no cases policy you didn't do that you might find facts regarding the lack of objective standards in the enforcement of the policy and she didn't do that you would expect to find facts regarding the subjective or arbitrary that's that's not the question that's not the fact that we have in front of us today this court has to decide and so what i would what i would tell you is the the problem in this case under pickering i question yes ma'am yes ma'am american flag some people believe the american flag is raci police department and she did it in a context at a time which literally endangered your fellow offices council letting me make this easy for you when i speak you are quiet and let me ask the question because this poor argument is not going to go smoothly if you don't allow me to ask my question ok if miss contra's did not have a police car in front of her home for four and a half months at the time that the report a complaint was made how did someone know that she was a police officer is the fact that she just had the flag out in front of her home sufficient in of itself or is it because there was a police car at some point in time it is because there was a police car at some point in time the key here is the association with the floor and the russell police department so can a police officer have a confederate flag home all things being equal probably so it just depends on the facts and circumstances but if if there's no examples these examples all suggest that it's conduct that is in any in a way that involves fraud or a crime or insubordination or something other than asserting your  first amendment rights you would agree that flying a flag does constitute a st amendment right generally speaking out i don't concede that in this case but i'll tell you all of those examples and you're right that you can't lay out every single one of them nor do you have to as i'm out of all of those examples deal with affecting trust and affecting the ability of the police department and their positive relations with community and these are people that can take away somebody's liberty and if there is a belief that they are acting fraudulently or that they have some racial bias that's the reason those those examples are in there and that's the reason why that both are correct she did receive department bulletins and yes she was on leave for a period of time but this was not something that just a rose after march two minutes remaining she look i mean she's a sergeant she was a supervisor she had twenty years experience i mean this is it's not a close call for her and yes she received i mean green days before this incident was reported police officers were shot in dallas because of racial tensions and that is this court going to tell the city of russell they can discipline an officer for flying a racially divisive flag above her also a police car but again wouldn't have reported it i don't think he made it up and furthermore she admitted it i understand as the when you leave the the e mail that was sent it specifically says to the meeting and goodness church and i was walking afterwards the next day i was walking my children to preschool and i noticed a police vehicle in front of a car with a confederate flag outside that's what the that's what is that so the point is is that there was no police vehicle and there had been with this flood for some period of time and clearly somebody saw  you this suppose the flag had said blue lines matter could the city discipline her for that well again this g knows that it's a hypothetical it's meant to test the parameters of your position in the ramifications now if she had run a flag up a pro and parked a cruise andras said could you retaliate and time for discipline yes or no it's relatively simple i would say no i would say there is not a mystery associated with that type of statement and that flag such as it is as there is with the confederate flag or what about flags it said  i think that gets closer to where we are this case i know that's why i ask my question is could you discipline  that i would say possibly i think that is a it affects the same issues in a sense getting the rabi police department you do you think the fact that you merced as you are on this issue and ready to discuss it and knowledgeable of all the decisions on it have to answer that question possibly doesn't that indicate something in the stand i don't think so then  say that implicates the same problems as the confederate flag is racially divisive and it associates that divisiveness with the police department in any context and this is what's important in a context like was going on at the and so that that being the case is this a question and add the clyde problem possibly but not in other words do we have to look at the specific been his declaration said that she would have been allowed he would not have terminated her for flying the georgia flag you recall that ok well let me ask you question which she had been terminated for flying the georgia flag that was pre further i'm sorry i thought i was waiting for a question from you yes ma'am i would say along these lines that the key i mean you're dealing with the police department  right the ability of the police department to regulate their employees speech is much greater than some other government employee or even government employers have a greater ability to regulate their speech i mean connick versus mars for example this orca cell in hanson versus sullivan wagner and a police as they put paramilitary organization has to be given more latitude because they're a very unique needs to maintain the trust the citizenry and that's exactly what we're talking about here and so in this case why this case is so egregious why her conduct was so inflammatory in dangerous is because she associated a divisive a racially divisive symbol with the police department and she did so in a time during heightened racial tensions and she admitted in her deposition that that conduct or at least her omission and allowing that here i don't see that her interest such as it was under the st amendment comes anywhere close to the city of rosalind's interest in maintaining and running an effective police department with the trust of the citizens the panel's questioning in this case highlights the importance of the fairness doctrine and also the reason why this case should be reversed for that because the court refused to permit mr sergeant cotter's from adding those claims  got a city that is clearly intent on regulating speech in this area but they're really just refusing to tell their employees what they can and can't do so the result of that is a whole bunch of suppression of speech that may not be constitutionally suppression of all right you've got employees who simply won't engage in speech that they might be able to constitutional engage in for fear of being subject to discipline up and including terminations the way that this court can correct that problem you this court can doesn't have to tell the city rodwell that you can't regulate speech in this manner this court should do exactly what the th circuit did in khotan you tell the city rodwell  you're you can regulate speech but if you're going to do that you need to do that you gotta do it with precision you've got to you've got to announce rules and policies that specifically tell your employees what they can and can't do that allows the employees then if they feel like it's you're talking about well with rice and i would do exactly what the every branch of the military has recently done just recently the marine corps has issued a policy that says how would you cover it that we all recognize well it depends on that depends on what the city intends on restricting because i you know i didn't ask that hypothetical to the city administrator but it could be that the city doesn't cities have found it necessary to come up with policies that explain to their own either their employees or their law enforcement officers what they can and can't do with respect to the confederate flag here this is a situation that's very similar to cullen where you've got in and an officer who engaged in conduct that she you know i i i understand the sentiments of the cities and the need to restrict the speech but i also understand that not  everybody has the same worldview as me and not everybody's have the same opportunities as me to go and broaden your mind and understand these sorts of nuances so it's not and as we pointed out with our expert opinion that was presented to the district court it's not clear that the average law enforcement most law enforcement officers may not realize that displaying the confederate flag in this manner with amount to conduct unbecoming so that's the importance of telling them if you're going to restrict the speech in that way tell them have a will they can challenge that will that rule can then be subject to pickering but you don't get to pickering unless there's fairness and less the less this the government employer has told  employees that you can't do that and i understand what the you've got there's a lot of people out there including myself who completely understand why a city would not want their law enforcement officers to do this officers can't fly the nazi swastika flag at their home associated next to a police vehicle i would say if they're going to go about announcing a rule like this they should well i think it's because society has progressed to a point where it's clearly widely understood that it's unacceptable to for a police officer to display  church and they're going on their way to the church and the pope in the patrol car they stop on sunday they're not yet on duty but they're on their way back to the church today to become to go on duty and that church is associated with a particular political speech whether it's anti american or is homophobic would that be considered i would say and i'll point out also that there there are ways in which a public employee could display the confederate flag that i think would would clearly be conduct unbecoming where you know for example there's a context that you c display it and where if you're at a rally associated with a hate group or if you display the confederate flag along with a message that clearly ties your purpose for displaying it to the negative connotations of the fla the confederate flag on a flag pole beneath the united states flag we pointed out in our briefing that's why did the state of georgia to this day gauges in identical speech of us don't park they display the confederate flag directly next to  they put it in the context of the role of stone mountain memorial to the confederate war right i mean isn't it sort of a historical context but supreme court has said if you're going to regulate speech you've got to do it precisely you've got to tell your employees exactly what they can and can't do let them challenge that and here if the court does what i'm proposing doods actually what the th circuit did think when you tell a confederate flag and the racist biases that that many people feel the confederate flag stands for i mean in the college situation is the professor teaching in a classroom not her home as of march st of two thousand and sixteen number three she took the flag down immediately when the city raised the issue of her tone or about the complaint she removed that she didn't say no i'm going to continue engaging in this speech we have a different case if that were the situation so you've got to ask them at that point in time at the point time when the city was making the disciplinary action they no longer had the safety concerns that the flag was gone her car was gone there was no lingering  reason to justify terminating for this and he said no he wasn't concerned about that they were concerned obviously about the image that is a public image of the police department but again that the city this  that the fair notice claim works you tell the therefore the city was required to provide for notice and you can't say on the just facts of this case that she had fair notice that displaying the flag in the manner that she displayed it would be considered conduct