under rule twelve and rule fifty six motion those causes of action survive both of those motions in fact the case went to trial for a little while the case went to trial i believe may thirty first twenty sixteen and for reasons that are not germane to this appeal a mistrial was declared the case was then rescheduled for trial following week june sixth up to then there had been no pretrial memorandum of law in fact it was likely that there been enough briefing what they call the pretrial memorandum but it's fair to say i think that it was not a pretrial memorandum at all because it did not contemplate going to trial in fact it sought to reach you are as your argument up till now suggests placing a lot of hopes on your law of the case argument i would suggest to you at least before as i'm concerned you would do a lot better focusing on the issue in your limited time of  whether the speech was on a subject of public concern because i frankly i'm i have no idea what my colleagues views are but i think as far as law the case is concerned you're just way off base thank you ron and i'll do exactly that of course was it speech is protected well what was a speech and i guess the first way to answer that is simply to look at very clear indications in the record of the undisputed language that is it issue and those are in the appendix in  police report which appears to twenty seven the extent of narrative and in the counseling memorandum eight hundred twenty eight what was the speech the speech was from the plaintiff to the person being arrested don't give them more instructions and vice well that's a good question they were certainly made loudly enough i mean it says yelled in one of these i mean it's speech in the sense of it was someone talking but it doesn't seem like the kind of speech that warrants first and protection it's not speech on a manner well i guess that's one of the issues public concern but it was it was we're going to get you a lawyer don't talk you know that kind of thing i'd like to go with her to the police station right well leaving aside that last one about the i'd like to go with her because that's clearly a request made of the police but the statements made loudly in a public place to a person being publicly arrested under somewhat unusual circumstances that becomes in some way somewhat like creating a record of this advice was given and so this is a statement that's made in a public forum it's not in some back room my client was not the attorney for ms buck this was made in a rather surprising situation in which the police officer interrupted the yoga class came in radios blaring took the woman outside my client ended up outside  significant concern to you the woman that's being arrested why is that broader public concern when the police are hearing it being given the police are on notice now that there is some concern out there that this woman the public who was there at the yoga class they would have heard it as well and this was occurring in a public forum this is a public place in fact it it's almost hard to separate it from the basis for the arrest which is that the woman was trespassing she was in fact an employee who had been told not to come back to work i think her perception was that you could go to a yoga class but instead they prosecuted for trespass so all of this in that million comes to a matter of great public concern these are the days in which police citizen encounters lead to harbel consequences all of the news of today are you contending that the that the reason for the discipline imposed on your client was the content of her speech absolutely so so so you so you're saying that that if the facts hadn't rolled in a slightly different way so that there had been prior notice that the police were on her way on their way to the yoga class to arrest this bush as a trespass or and and your client as soon as this information came to the yoga class said to bush the police are coming to arrest you i want to tell you to be sure you know you have the right to a lawyer and you have the right to union representation and and i'm going to try to see what i can do to get you the lawyer and you shouldn't answer questions and then when the police arrived there had been no further that conversation the police it's simply come taken custody of bush and left that she would have been disciplined in the same way because the university was objecting to her telling bush about these rights as opposed to that she was being disciplined because of of what the university rightly or wrongly regarded as interfering with the police conduct in there your hypothetical raise a very important distinction and that is  a distinction of principle the whether a matter of whether speech is a matter of public concern is taken in context whether the the university would have disciplined for that is debatable because they might not have even known about it it would have been a private conversation assuming that they didn't know about it it wouldn't have happened but here she was disciplined because her doing so created something of a disturbance she said these things during the execution of police duties but she did that with a right to do that and that is exactly what first amendment is about issues the hypothetical is difficult because it didn't happen if indeed she had given private advice and this came to the attention the university did think discipline her or the content of what she said for as you just noted creating a disturbance well if you read the counseling memorandum the content is emphasized and so i would have to say that it is an element and it certainly was designed to chill that sort of interaction in which my client engaged to point me to the what does it say in the counseling memorandum that emphasizes that her saying you have the right to a lawyer and you have the right to union representation with pages with up to page twenty eight of the appendix which is the counseling memorandum it's only five paragraphs long the second paragraph middle of the paragraph you yourself as an attorney and offered advice and guidance to the employee being arrested and then it raises some facts or someone in dispute or whether she followed but it also mentioned that even if she did follow she was only asked to i mean inside not ordered so she would have had a right to file it didn't even mention the content well the content is mentioned in the police report of the previous page that but if the you've said the counseling memorandum emphasizes the size of the content it doesn't even mention the content it mentions the advice was you gave advice yes and the advice was known to the writers of the council memorandum so it would be difficult to say that it's mention in a vacuum  what would you say what are the factors that accord in distinguishing between between speech that's a purely private concern or speech that is that is  of public concern for purposes of the issue of well in the employment years you say favor the are concluding that it was a matter of public concern as opposed to not in the employment context there's an added dimension to that of course and that is that any dispute could become a first amendment issue if the employees complaining about their own job and so a lot of cases turned on that and you have that issue so here one of the important factors that must be considered is  this plaintiff was not acting on her own behalf it was not about her own job grievance it was about something that was happening in a very unusual situation the employer actually was also the employer of the police this was a strange long tough task universe which the employee can be disciplined for interfering with the employer's police force and so when you consider that scenario and look at the factors of whether the employee was speaking on her own behalf about a job or even if she wasn't what she speaking about a matter that touches upon public concern well it was a police citizen interaction and she was allowed only stating that this woman should remain silent in public view she was making the statement to the police and to the bystanders i think when you analyze all of the first moment concerns and take away the part about public employment that relates to individual grievances you are left only with the conclusion that this has to be protected speech and i see my time is up so i will say what i have for a bottle thank good morning your honour's may it please the court mark shawn for the apple he's your honors as you've just been discussing this case arose out of advice that was given by the plaintiff took over you before you reach the merits while the merits of the underlying argument on whether the speech was public concern as a matter of law there was a responsive as we note in our brief there was a responsive pretrial memorandum filed by the plaintiff in gauging on the underlying merits question the court at a concert pretrial conference also informed the parties that there would be an additional  nment to allow time for the court to fully consider the memorandum that had been filed and the arguments that were in the memorandum i don't recall if there was any specific notice about the reconsideration issue in particular i do recall that the plaintiff emphasized in their response of pretrial memorandum that this was an issue that had already been decided and thus that there was not a basis to find for the defendants on that ground i don't know if thank you so on the merits when the court determined that it needed to address the merits district court correctly held that the statements were not speech on a matter of public concern because they were statements about one particular person's situation there were advice on how she should conduct herself and they were not on the issues of broader we have we have authority that while that's certainly relevant we have authority in our court but the fact that a statement pertains to the plaintiff's own or let's say a particular into another particular individual's personal circumstance doesn't preclude its being treated for these purposes as as a matter of public concern did not also implicate a broader issue of public concern i think arguably i mean supposing the facts had been that that at the time of this arrest  the the plaintive had said it is really important that university employees understand when they have this kind of a situation in their being arrested by campus police it's really important that they understand that they have the right to counsel and the right to union representation and this is really important and i want to make sure that that sherry bush here understands that if that would that have been a speech on a matter of public concern i don't think zero honor it's possible that it would be a closer case there's still the underlying point i wouldn't why would that not have been why would that not of well because there was not any contention  by there in your hypothetical which obviously is not the facts of this case there was not a contention that there was any problem of public employees not knowing their rights or the campus police not respecting their rights but i agree your honor that that might be a closer case if there is a movie and this court has certainly said that where a person is trying to draw attention to a wider public policy question that the public interest there is certainly broader sense and it certainly will and arguably plays into the overall topic of relations between citizens and police is certainly one of which the public has a great interest but what this court has consistently said is that it is not enough for a person statements construed broadly to touch on or implicate that kind of issue you have to look very specifically at the details of the statement itself and news c not raising issues about police practices generally she was not calling attention to police misconduct generally she was simply saying to this one particular person in your circumstances this is how you should conduct yourself in cases like used in the hill in taking it out of the employment context supreme court has repeatedly spoken of the freedom of individuals broadly to challenge  it is not very relevant your honor because the what the supreme court has said is that in the employment context even statements that would be protected in in a general first amendment sons have to be balanced against the employer's legitimate interest in running their business and control for their enterprise controlling the conduct of their employees and so the fact that it's speech may be protected generally does not mean that it's protected against employment consequences unless it's a public concern that the distinction is a much bigger one than you just described because practically all speech is or the court sometimes make the mistake of raising of treating this question is if it's if it does it can is it protected is the speech in question protected speech under the first amendment and virtually all speech is protected under the first a minute unless it falls in some very tiny categories like raising a clear and present danger that kind of thing but this is the supreme court has limited the kind of speech that that that gains protection from from retaliatory or discriminatory action on the part of a public employer in that it must pass the first hurdle of relating to a matter of public concern that's a much higher hurdle to pass than simply is it protected speech certainly your honor and i didn't mean has it too quickly to the balancing test of of of whether the value of the speeches is exceeded by  the by the employer's interest and in ineffectively conducting its business and we're concerned right now with the test of whether it whether it's speech of public concern certainly your honor and i didn't mean to suggest that we needed to proceed to that the balancing test i simply meant to emphasize that the that there is a fundamentally different calculus when you are a value adding that whether it's protected against governmental consequences generally under the first amendment or whether it's protected against in consequences from the employer which is this case and as your own seems to be the difficult point the difficult point or one of them is to is is to tell which is to decide when the speech which does relate to an individual instance which is addressed to an individual instance should nonetheless be regarded as speech on a matter of public concern even though it's addressing one individual's concern at that moment and what are the guidelines how what are the guidelines for telling when the speech that relates to a particular individual's momentary problem should nonetheless be considered speech on a matter of public concern certainly your honor i think this court's decision in the case that we said in our brief provides a guideline on not which is the question to ask is does the individual's particular situation raise broader questions about governmental policy or misconduct or anything of that sort that the public would legitimately be interested in so where there is a systemic question or where there is a significant policy question that's being disputed then that may be speech of public concern even if it's arises out of one particular individual situation isn't there some indication in the record that been made well the police didn't have a right to do what they were doing and  the officers she says threatened to arrest her and she retorted that would be a rest yes your honor she said that with regard to herself and i note that that is not the basis that i understand the opponent to be relying on for finding that that speech was protected and that's not and that particular statement was not the focus of the counseling memo and so on the but additionally even if even if you were to look at that statement was that was that statement even mentioned in the police complaint to the to the authorities i don't recall if it was mentioned the police complaint was not th a statement on a matter of public concern in a context in which historically the supreme court has said we should be particularly attentive to making sure disorderly conduct statutes statutes or do not impinge on the clear that it is a very context specific inquiry to determine whether or not a given statement is on a matter of public concern and just to finish my answer to question to the point that she was not raising any broader objection or issue relating to campus cop with the practices of the campus police or of alleging that there was misconduct in the way that they were affecting the  of or anything of that sort and so her statements may have been significant to their recipients or even to the to the yoga class that was in the room but they were not general news interest or public interest to the public at large which is the test in this context so unless the court has any further questions we would ask that you  opposing counsel seems to be conflating newsworthy with a matter of public concern and the court below seem to do that to perhaps this whole incident would be newsworthy but that's really not the question before the court it is important though to note that those statements in the advice are not the only verbiage that is it issue and everything is before the court and yes to answer judge lavalas question there is quite a bit in the police report about the threat to arrest the plaintiff and there's even more in the record but that's disputed i use the police report because it's the other side's narrative but in the record from the testimony of my client in the declaration that she gave in the deposition she indicates that when they threatened her with the rest she said that would be a false arrest and then they backed off but they made that threat in direct response to the very things that she was saying and doing but especially saying she was giving them advice and giving advice and they did not seem to like that so they threatened her with arrest if sheriff her conduct had risen to a culpable level she would have been arrested so we're talking about stuff that is in the realm of speech here and the whole record speaks to an incident that is certainly a matter of public concern whether it's newsworthy and i don't know we can leave that to the newspapers but this is not the issue the issue is whether it relates to a matter touches upon a matter of public concern and certainly if you have an employment situation in which the employer of the police is the same as the employer of the arrestee and the speaker you have a very interesting set of circumstances that raises interesting questions because the filter the judge we've all talked about where you know pretty much all speech is protected where you but but in point of context you have a special filter because you have to let the employer do their job you have the pickering analysis will hear the oddity is that the employer is a university so this doesn't interfere with their capacity to run university who's a yoga class but they're arguing or they're making the case so to speak in their council a memorandum that is interfering with the ability of their police force to easily arrest suspects in classes that are open to the public on their property so that's i think pretty much unique set of circumstances in this public employment context where the sunni police on a sunni campus are rescue sunni employ another sunni employ who happens to be attorney but an attorney doesn't work as an attorney is inserting herself into the situation not for profit not for gain just