The 1968 Case That Proves the Charlie Kirk Firings Were Illegal

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: Commenting on a matter of public importance, even if you make a mistake or two, that's not grounds to fire you because you criticized your boss.

0:00:18 Thomas: However upset you are at the firings and the violations of the First Amendment, it's hard to even put into words how much worse it is than people even talk about or know or care about, apparently.

0:00:33 Thomas: Hello and welcome to Opening Arguments. This is episode 1218. I'm your host, Thomas Smith. And that over there is attorney and voting rights advocate slash did the government kill your job yet?

0:00:43 Jenessa: Not yet. I am technically still.

0:00:46 Thomas: Ah, overlooked by this fascist government and still somehow working. Jenessa, how are you doing? It. Their vision's based on woke movements.

0:00:50 Jenessa: Their eyes are based on movement, so we're just laying low. Yeah, quite literally.

0:00:59 Thomas: As long as you don't move too wokely, they can't see you. That dinosaur thing's a myth, right? That turned out to be a myth. I'm pretty sure it did.

0:01:03 Jenessa: I was going to accidentally start giving you a giant neuroscience thing about frogs. Let's not.

0:01:10 Thomas: Neurosis, I was thinking about frogs.

0:01:10 Jenessa: Uh yeah their vision and how their superior colliculus and movement

0:01:15 Thomas: Ooh, they got a better colliculus than us? How are you doing?

0:01:17 Jenessa: And yeah I am alive which uh may have been up for debate the last couple of weeks I am here I am well

0:01:29 Thomas: I was running out of things to make up for why you were gone. People weren't believing me, you know? Oh, she had to visit her cousin in Canada. She was actually sick, folks. You were really sick. COVID, right?

0:01:37 Jenessa: Again yeah oh my god well I test I a home test was negative so probably flu-like thing that turned into a sinus infection and a giant asthma attack and oh Oh my god, get your vaccines wear your masks when you're around the germy children I just oof I'm better now it's gonna be okay

0:01:42 Thomas: Oh, no, you tested negative. Yeah. That all sounds bad.

0:01:58 Thomas: Well, I'm glad. We're so glad you're better. And I'm really excited to be doing the Monday show with you. I think this is going to be great because we're getting back to classic OA deep dive stuff. And we've been doing that here. And they're not to say we haven't. I loved the Warren Court Good Law series you've done with Matt. And it's sort of in that vein that we wanted to talk about a classic case, a landmark case, Pickering v. Board of Education. I feel like whenever the Board of Education is involved, some shit's going down.

0:02:26 Thomas: Wherever that's in the name of the Supreme Court case, there's some shit happening.

0:02:25 Jenessa: Pretty much yeah yeah so this one actually I wasn't intentionally hunting for a Warren Court but we are once again back in the 1960s where we are establishing a major civil rights issue about free speech for a teacher

0:02:43 Thomas: Well, similarly to how if you want to look for when popular music was last good, you also have to go to the 60s. When you want to look for the time when the Supreme court was doing good things, you know, when you're just thinking, like, here's a good case, frustratingly, it's back in the Warren court.

0:02:58 Jenessa: Yeah yeah pretty frequently we are going to end up there for establishing our earliest major precedent a lot of this is still good strong law it's still hanging in

0:03:08 Thomas: Yeah, for now. I don't know. The old white men of 1968 might be too woke for this nation. I say that with not even any sarcasm, really. That's almost 100% straight up factually true. I'm looking at them right now. The all white, nine old, all super old white guys that they vaguely all look like a president in the past, but none of them were. You know, like one of these guys has to be Eisenhower. I swear to God, I have it up for the oral arguments we might listen to and has the pictures of all of them.

0:03:26 Jenessa: There oh yes yeah yeah yeah they the similarity is shocking yeah Yeah.

0:03:45 Thomas: It's like, they're all almost Eisenhower, but none of them are.

0:03:49 Jenessa: They're all his cousin.

0:03:50 Thomas: That guy's FDR. I swear TO GOD. Was FDR not on this court in 1968? I'm not very good at this. They're all that old white man who's too woke for our current country. So you had a tie-in to where there's woke with this one, right?

0:04:01 Jenessa: Yeah, yeah. So I was listening to the episodes you and Lydia did. Oh, I should have the episode numbers in front of me. Do you happen to have that?

0:04:06 Thomas: Nah, who cares? It's recent. In the hundreds. Oh, I think we ended on like, it was an awkward like 103, something 99 through 102. I don't know.

0:04:14 Jenessa: You and Lydia did those episodes about teachers who were being fired for making statements about Charlie Kirk.

0:04:20 Thomas: Right? Right? Teachers and landscapers, by the way, also not to be forgotten, to literally quoting the guy, just quoting the dead guy,

0:04:24 Jenessa: Right. Yeah. Oh, God. Various public employees. You know, those statements varied anywhere from, you know, strong condemnation to the most tepid of responses.

0:04:38 Jenessa: Yep. Really appreciated the coverage you guys did. I think you did a great job with it. I was very invested in these personal stories. And it seems pretty clear looking at those, these people are very likely to get their jobs back. They may well be entitled to damages, depending on the circumstances. I thought it would be interesting to look into the legal precedent, because as you guys were reading some of the complaints, the same language comes up over and over again you know matter of public importance and the fact that they did it on their private time and like why does that stuff matter it's probably pretty intuitive why it matters but this case established a lot of the precedent because it's not as easy and obvious to say well this wasn't hurting anybody and this has nothing to do with the school and it's totally on your free time wanting to balance the school has an interest in keeping an undisrupted environment The teacher has an interest in their own personal free speech. What do we do as a government to balance this? It's not always easy to answer that.

0:05:46 Thomas: Classic balancing stuff. To be on the Supreme Court, you got to have sick balance.

0:05:52 Jenessa: Well, I'm screwed at that point. The clumsiest person on earth.

0:05:55 Thomas: That's why he didn't make it. I'm sorry. I didn't want to have to tell you. Well, people should check that out because however mad, if you haven't heard those Where There's Woke episodes, however upset you think you are about the, and you are, I'm sorry, I didn't mean to gaslight you. However upset you are, you don't actually know your own feelings that I do. No, however upset you're at the firings and the violations of the First Amendment, it's hard to even put into words how much worse it is than people even talk about or know or care about. Apparently, the number of people fired for nothing related to Charlie Kirk, just absolute bland statements. And admittedly, as you mentioned, a few that are like, okay, okay, that could be traipsing toward the line, maybe. But the numbers, the sheer numbers, it is something I've been outraged about because I'm old enough to remember when the fire .org was all in uproar over made up crap where a teacher had to get like one single reprimand somewhere and still have their job and still have everything. And that was a free speech outrage. Then Charlie Kirk dies and a whole just numbers. You wouldn't again, hundreds, maybe thousands of people lost their jobs or at least suffered serious consequences, not just like slap on the wrist, like actual consequences, suspensions and in the middle of terminations now. And it's, you know, all that kind of stuff over not properly grieving fascistly enough for Charlie Kirk. It's sickening. It's something you should check out and hear the episodes. We give details, but I love this tie-in because on this show, on the Monday deep dive, we're going to learn about where those rights come from and how exactly they're, uh, they're balanced with some sick skateboarding techniques.

0:07:30 Jenessa: Right

0:07:31 Thomas: Can't wait. After this break, we will get into the deep dive.

0:07:37 Ad: [Ad break 1 — ad music]

0:07:37 Thomas: All right. Where do we want to begin?

0:07:39 Jenessa: So we have our oral arguments here 1968 this starts with a letter to the editor written by a teacher in 1961

0:07:47 Thomas: That's how slow the mail was.

0:07:48 Jenessa: Yes, if there's anything refreshing about this it's always taken forever to get to the supreme court he's criticizing the school board and some decisions they make about the budget and budget votes and he will be fired for it.

0:08:03 Thomas: So his own school board, I take it. It's not like a neighbor, my kid's school. Okay. So he works at the school. He sends a letter to the editor saying the way they're prioritizing the whatever they're doing here, budget-wise, don't like it.

0:08:15 Jenessa: Yes. The appendix of the Supreme Court decision includes the letter itself and it is rude. The tone is rough and I mean it's like I read it today and I'm like oof, yikes so I'm sure in the 60s it was it's very sarcastic it's very biting it's not kind so you can imagine how we get into this territory of like okay on the one hand this is an important topic for teachers to talk about this is important topic for anyone to talk About on the other hand you are an employee of the school and you are pretty ruthlessly mockingly criticizing your employer. So, oh, that appears to come through.

0:08:58 Thomas: I thought you were going to say, on the other hand, this guy's an asshole and everyone hates him. Yeah, yeah.

0:09:06 Jenessa: Nobody says it out loud, but I think the tone of many parts of this seem to, yeah.

0:09:09 Thomas: Your honor, if I may, this guy, come on.

0:09:16 Jenessa: Part of what this will hinge on is the board is going to allege that also he made many false factual statements in there. When he criticized them and said, you spend money on this, you spent money on that. And they're like, no, we don't.

0:09:27 Thomas: Now that's interesting. I don't want to jump too far ahead, so feel free to stop me, but I feel like if we have a freedom of speech, I don't really feel like that particularly matters. Like, I almost feel like that could be a separate issue. If you want to say like you're defaming somebody, sure. But is that totally separate from this idea of, do I have the right to criticize my workplace or something or any workplace?

0:09:50 Jenessa: Yeah.

0:09:50 Thomas: I'm trying to think how that would, if it even matters that specifically his school, actually, I don't know if that even matters.

0:09:54 Jenessa: Yeah, that will be really critical to differentiate up front here. So there's a couple of things that can happen that will have similar but not identical tests. And this is the first one to actually test it in the case of firing a public employee. We've had cases before that established, OK, there is such a thing as criminal defamation. You can lie badly about somebody that it's a crime.

0:10:20 Thomas: Like a crime, not just a civil thing. Wow. Geez.

0:10:23 Jenessa: I don't know if any of them rise to the level of like go to jail, but you could be, you know, misdemeanors.

0:10:28 Thomas: Is it like this guy's a pedophile and so you put him in danger or something or what kind of, I've never heard of that.

0:10:34 Jenessa: So basically, it used to be primarily libel and defamation was criminal. Nowadays, it's almost exclusively civil. Common law criminal libel, that was eliminated by the Supreme Court in the 60s shortly before this case. So the idea that there's like there's not even a law on the books. No, obviously, this is going to have to be in writing to properly inform you of what you can and can't say. With actual malice, there are still some explicit criminal libel statutes out there.

0:11:09 Jenessa: I just think it's going to be so hard to rise to that level. I've got an example here. 2002, a jury convicted an editor and publisher of a small free monthly paper and website in Kansas of criminal defamation after they printed that a mayor and her husband, a judge, did not live in the county where they hold office. That is essentially accusing that person of illegal behavior that like, you can't run for judge if you don't live here. That's, it's a very serious allegation.

0:11:32 Thomas: -hmm, yeah. But nowadays it still seems like you could accuse somebody of being the worst things in the world and there's usually not like a criminal thing. So it sounds like something that used to exist that basically pretty much doesn't anymore, but maybe like slightly.

0:11:49 Jenessa: And it will have to be actual malice.

0:11:49 Thomas: Okay. That's interesting.

0:11:52 Jenessa: It'll have to be you knew you were lying or reckless disregard. It's going to be very rare. Used to be more common at the time this decision is written. We are right around the time where we're getting rid of this for the most part.

0:12:04 Thomas: Okay, interesting. All right.

0:12:05 Jenessa: But the existence of criminal defamation, that would be you said something false and you are getting in trouble for it legally. Obviously, we want to be very, very careful about that, right? The government is directly punishing you for something you. It may be one thing that a private person said about another private person. We would want to be very careful about that.

0:12:26 Jenessa: Civil defamation. That's what people are probably more familiar with. You You say something false about somebody and they sue you for damages. Yeah.

0:12:34 Thomas: Good old fashioned civil defamation like God intended. Yeah.

0:12:38 Jenessa: Here, you said something may or may not have been false. You get fired and you're suing them to try to get your job back. So it's a little different. You can see how similar, obviously similar First Amendment issues come in. If you're getting fired for something you said, whether or not it was false is probably relevant, right? Like we should think about that uh yeah they're gonna grapple with that yeah so we have to grapple with that but it's not the same as like defamation if it's true you're good in the United States period done

0:13:03 Thomas: Maybe. I don't know. Like when it comes to opinion. Yeah, interesting, okay.

0:13:15 Thomas: I'm so sorry to do this. That is something we used to say a lot here. Truth is the complete defense. No, No truth. Plus two, $3 million. Just so everybody knows I've gone through the legal system. I genuinely, this is not just like, I genuinely want this to get into the zeitgeist because it's actually important. There are people who just think, oh yeah, if it's true, yeah, just go say what you can. You're fine.

0:13:36 Jenessa: Right right so basically with defamation it's gonna be defamation is inherently about false statements here you're getting fired for something you said in theory we want to investigate instances where your employer could fire you for something you said that was true, because certainly, you know, if you just work for like Gap, yeah, you could get fired for saying true things about them. Screw it. But when you're a public employee, what if it's true? What if it's false? Does it matter if it's false? Does that heighten the standard? We're gonna have to explore all of this. This hasn't been looked at yet. The standards about defamation are gonna come up because we do already have a rule for that. Protecting your speech if it's true, protecting your speech if it is false, he's gonna get accused of making false statements here. So should we apply those standards, yes or no? It's relevant in that sense.

0:14:30 Jenessa: But we also have to think about even if they were true, you might still be able to get fired, right? It's not the same as you said something false, I'm suing you for money. The school's not suing him for money, the school fired him and he's suing to get his job back. Not the same thing. So we want to keep these separate in our heads. We will reference them, but they aren't the same.

0:14:52 Jenessa: So with that, I think the thing that will be the most helpful, if we listen to just the opening statements from the two lawyers, the opening statement from the teacher's lawyer starts at 32 seconds. He's a bit, I don't want to diagnose people, but he is of our kind in his bit of rambling back and forth. But I think he will he will give us a picture of the way he sees the case

0:15:11 Thomas: Oh, great. We're introducing Just like a third ADHD to the show. We're never getting through it. Folks don't know as they see their time marker past the eight minute mark of the episode that we're like 30 minutes into recording. And now I've forgotten the timestamp. What'd you say?

0:15:29 Jenessa: Yeah oops 32 seconds he starts this is the intro for the lawyer for the

0:15:37 Clip: Mr. Chief Justice, and may it please the Court, this case has considerable similarity to the one that you heard yesterday afternoon from Alaska.

0:15:49 Thomas: Dear God.

0:15:50 Clip: Marvin Pickering was dismissed by the Board of Education of Lockport, Illinois, because he wrote a letter which was published in the local paper in which he criticized the Board Of Education. All other reasons for his dismissal are excluded in this case. The only question, therefore, before you is precisely a First Amendment question. The public high school board of Lockport, Illinois, had over a period of years faced the usual growing problems that have been common in the last numbers of years in that part of the country and elsewhere in 1962 it had presented a bond issue to the people the purpose of erecting a public high school a new public high that bond issue lost later that same year with some revisions and plans and with other arguments in favor of the new school building a larger bond issue for five and a half million dollars was presented to the voters and that bond issue passed. The situation then continued until about 1964 when the board decided that it needed more money and a higher tax rate to run the high schools of that district, and it presented a tax rate referendum to the people of that community sometime in the spring. That tax referendum lost. Lost. Another tax rate referendum was offered in September, and on September 19, that referendum was voted upon and it lost. Marvin Pickering was a teacher in that high school. He was a science teacher. He had been attending meetings of the Board of Education for the last two years and thought he was not only familiar with their problems, but also knew the reason why they were having trouble getting their message across to the public. Therefore, he wrote a letter, which he submitted to the editor of the Lockport Herald on about the 22nd of September, just three days after the election, and that letter, at his request, was published in the Lockboard Herald in the issue of September 24. On October 8, just Just two weeks later, the Board of Education voted to dismiss him.

0:18:22 Thomas: Riveting stuff. This was actually, people don't notice, this is primetime television.

0:18:23 Jenessa: Teacher yeah yeah but he does give you overall what happened here we've got multiple different votes some are passing some are failing we want this money we want that money the critical piece here he's been going to the board meetings. He's a teacher in the school. He feels he knows what the problem is. They're not communicating this message to the public and I know why. And I'm going to write a letter to the editor, to the Lockport Herald, and I'm gonna explain what the program is three days after a failed referendum. Yeah.

0:18:56 Thomas: It's interesting there when he says all other reasons he was terminated are not present in this case, meaning like they don't get to say, or they at least legally, correct me if I'm wrong, obviously. But once we get to this point, oftentimes it's like the school board doesn't get to say, well, also, that guy kind of sucks and he's ugly and we don't. It's like maybe even if there were other reasons, when we've gotten to the Supreme Court on this one issue, they are only allowed to look at this one issue and they're only allowed for the purpose of evaluating this legal principle.

0:19:25 Thomas: And I think it's an interesting thing that might not always be obvious to non-lawyers is like that's all they get to look at for the purposes of this case, even if there could have been other things. Right.

0:19:35 Jenessa: Right, right. If they had from the very beginning had this hearing about you're getting fired, here's your hearing, and they laid out 15 different reasons. That might have helped them to be able to say, well, this isn't the only reason. Like, even if you were, maybe we find a certain First Amendment thing and you would send it back to us to say would you still have fired him on the other bases? But at this point, if you say you fired him for what he said and that's all you said in that hearing, you cannot, after it's going through the courts, start coming up with other reasons because it's going to feel pretextual and it may well be pretextural that you're just like oh no oh no and you're coming up with other reasons they may well be problems you had with the guy but you weren't going to fire him for that before and now you got to invent good reasons to have fired him if the reality is you fired him because of what he said we need to address that problem now oh

0:20:28 Thomas: Right. So that's interesting because I was taking it a different way. And I think both these ways are valid. But again, you let me know. I think sometimes it could be that they did present other reasons, but the appeal has only been on this one or like this was the only like perhaps up the chain of appeal. They're like, well, you know, we're kind of setting this aside and setting this aside. But it's enough to have established that part of the reason was this one thing. And they could say, we are only looking at that one thing we're not looking at, like, Like because the point of the case often, too, and I think this gets lost even in current Supreme Court cases a lot of times is they should be just remanding back. They should just be saying like this one little thing. OK, no, you can't fire someone for their speech. OK, remand back. But oftentimes and I think this is because the Supreme Court is overstepping a lot based on the coverage that we've done. Oftentimes they're just saying like no this guy wins even though they should be looking at this one thing and then just remanding it back to the lower court because the lower courts are supposed to be the finders of fact so I guess it could be either of those two things that we said right

0:20:38 Jenessa: Also possible yeah yeah yes yeah yes Yes, precisely.

0:21:31 Thomas: Where it's like they've isolated like this is the one live issue that they're going to look at

0:21:36 Jenessa: Exactly. Yeah, you could. A great way to do it is all we're telling you is this is not a reason to fire somebody. Send it back. And if you want to find that you had 15 other reasons to fire him, go ahead. Now, you might find yourself in a situation of they tried raising these other reasons later. We think that's pretextual. We're trying to protect this person. You need to start from square one if you want to fire him because we think you're making stuff up or it could be you raised three independent reasons exactly like you're saying we are telling you independent reason number one was not acceptable send it back maybe you'll come back to us maybe you won't decide what you want do if it was only reasons two and three would you still have fired him? Now think about it.

0:21:50 Thomas: Right do your best and it's up to the Lower Courts the Supreme Court shouldn't be wasting their time with like well let's hear about their other reasons so that was the only point okay Okay.

0:22:32 Jenessa: Right, exactly. Yeah, so that's really important to think through.

0:22:41 Ad: [Ad break 2 — ad music]

0:22:41 Jenessa: If you go to 20 minutes and 13 seconds to hear the opening from the school's lawyer, how they're going to characterize this a little differently.

0:22:51 Clip: Mr. Chief Justice, Honorable Members of the Court, after the two tax rate referendums failed, Mr. Pickering came up with a rather comprehensive indictment, not only of the school board, but also of the superintendent. Some of the teachers who were assisting in attempting to get the message to the community by writing letters to the same paper, And in this indictment, you also attacked the school's athletic program per se, not just the handling of it by the board, but the whole idea of having athletics within the program.

0:23:22 Thomas: Oh, you can't do that.

0:23:28 Clip: Did you say some teachers had written to this same paper in support of the program? Not of the athletic program, but in support the tax rate increase.

0:23:42 Clip: Only this fellow who's opposed it. Right. The indictment that Mr. Pickering was making of the board is that they were not able to get the message to the taxpayers clearly enough to pass the tax rate issues, that in prior dealings with the public, they didn't get the the message as to the building bond programs, so that when they came to these issues, the public had gathered distrust. And then in formulating his premises to support his argument that the board no longer had the trust of the public, he used rather illogical approaches. He categorized the initial failure of the building program as a breach of promise by the Board of Education, because in the initial program, the board represented that there would be no frills. The frills that he had referenced to were a football field, athletic field, auditorium, and swimming pools.

0:24:35 Thomas: Can you believe this point, Dexter?

0:24:42 Clip: Now, the initial problem that the board had proposed to the public was a feeder school, a two-year school plan. When the voters voted this down, the entire plan was scrapped, and a new program developed six or eight months later that was presented to the voters. This program provided for a four-year school on one side of the...

0:25:02 Jenessa: I think we can stop it here. They're going go through a ton of detail. So you can hear in this part they're getting into a ton of minutiae of little facts but essentially you can see where the criticism they're going to characterize it as having inaccuracies as in some places being false illogical yeah

0:25:22 Thomas: Yeah, let me get this straight. All that was because he said like frills and the frills were like athletic stuff.

0:25:29 Jenessa: So they're saying like oh you know you lost the trust of the public because you said you were going to have this no frills budget and then look at all the frills that are in it look at this and this and they're like that's not a

0:25:31 Thomas: That's not exactly false, is it? Like he's just characterizing stuff.

0:25:42 Jenessa: Yeah exactly so there does end up being a hole back and forth here about whether they should de novo review the facts here. Normally the higher court does not review the fact but they will de novo uh I forget the Latin translation of that it's like brand new from scratch they will review the law. They're going to say you're here to ask me law questions I get to ignore what law findings they found below but the facts I don't normally revisit.

0:26:10 Thomas: Yep, you're supposed to be stuck with the facts from the lower courts unless there's... yeah.

0:26:14 Jenessa: Pretty much. The one factual thing they are willing to go back to is they say, okay, the board that found you made false statements is the board. That's claiming you made false statements against them and the board, the fire deal. So, and then none of the lower courts actually questioned whether that finding of falsity was accurate.

0:26:37 Thomas: Now that's interesting. Did they do it just because once again, oftentimes with these things, you're like, well, we'll say for the sake, we will take the facts as given that you did. We'll take your word for it in order to evaluate whether or not you have the right to fire this person for that reason. Or you think they just like, didn't look into it.

0:26:56 Jenessa: The lower courts were we're kind of doing the way the statute is written and the way we generally handle things is we defer to agencies, blah, blah. So they just said, did you have substantial evidence for your finding? Not, is it accurate? Are you correct? So they didn't actually look into, is it true or false? They didn't really have a hearing about that. And it's sort of the conflict of interest part that the fact that the board he criticized is the board that decided it is what made the Supreme Court say, we'll peek, we will take a little peek at whether we think this is true or false. And they found some of the statements were false,

0:27:24 Thomas: Right. Interesting. Okay. Oh, so they did do that. You're saying that now in what way did they do that? Did they just have to re brief it or did it's that?

0:27:44 Jenessa: Kind of. Yeah, they went through his letter and then they went through some evidence presented and they found, some of the statements, importantly, they found none of it was actual malice.

0:27:45 Thomas: Okay. Interesting.

0:27:57 Jenessa: None of it it was intentional. None of it was knowingly false. It was all the kind of thing that a person could be confused about. So the reckless standard would be like, if you had looked at all, you would know better. Why was this important? Why bother, right?

0:28:16 Thomas: Yeah.

0:28:16 Jenessa: If we were going to possibly find that even if it's false, who cares? Well, actually, teachers are privy to some information about school operations that the general public isn't. So they say like, okay, you can imagine a scenario where a teacher either did know something the general pubic would not have easily known that wasn't a public record, or there's a perception that as a teacher they would know something you don't know. And now you would run into a problem that it would be really hard for the board to correct the error.

0:28:46 Thomas: That's interesting. Yeah.

0:28:56 Jenessa: So even if it was not necessarily reckless, not necessarily actual malice, but like you made this false statement and your status as a teacher could really matter here and it could make it really hard for the board to correct it. Well, that's not the facts in front of us, so we're not going to decide that, but we are going to mention that this is a possible exception in the future.

0:28:55 Thomas: Oh, really? So they took the trouble to look at the facts, but they didn't go so far as to actually make a decision on that?

0:29:24 Jenessa: Well they do. That's an example they give of like, hey, future court, we're We're not saying that it will always be true that as long as you don't hit actual malice, you're good. I can imagine a scenario where that teacher didn't hit actual malace, but, oh, this makes it really hard for the board to solve the problem. In this case, everything he got wrong was a matter of public record. Other people could have looked it up. The board could have just published the public record to be like, that dummy got it wrong. And they're like, I mean, isn't that the obvious solution here? Is that you just, he was essentially a member of the general public here. He didn't access information that he only had access to because he was a teacher. Any other member of the general public could have looked up what he looked up, come to the same incorrect conclusions, written the same letter to the editor, and then the board would have had no recourse except to publish a correction. There would be public records just explaining the public record better so we don't want to we're not going to marry ourselves to like new york times v sullivan here which is what the teacher asked for that unless it was actual malice I shouldn't be able to get fired and they were like not so fast correct yes and he he well you know he his lawyer were like this is you should put the highest standard and they're like I don't know about that right

0:30:37 Thomas: Oh, that was like freshly law, right? Wow. Okay. Okay.

0:30:49 Thomas: But that's interesting. So that, but that's, again, that's a defamation libel standard, which is what, why are we even talking about that? That's, I'm struggling there.

0:30:56 Jenessa: He was arguing you should in the context of a fired public employee you should grab the same rule so we're trying to come up with a rule here we have a fired pub employee being accused of well why did we fire you you made a false statement well what should be the rule can you fire me for a false I'm proposing use the same you just came up with this great rule for for defamation. You should use the same rule here. And they say, I don't know about that.

0:31:12 Thomas: Hmm. So you're saying the teacher said that though, or the board said that.

0:31:28 Jenessa: The teacher's lawyer coming to the Supreme Court, when you propose, what do you think the rule should be? I'm going to argue for a rule.

0:31:33 Thomas: Okay, let me know where I'm missing something because I thought it would have been that the teacher is saying, hey, you can't fire me for an opinion or for speech. But it's almost like, I guess from what you're saying, it sounds like they're sort of all operating under the idea that if it's false or defamatory, then they could fire him. And is that because of what? Some sort of policy or.

0:31:56 Jenessa: It is one of multiple arguments. So one of the arguments is just straight up, you shouldn't be able to fire me for an opinion.

0:32:01 Thomas: Oh, OK. OK. And then like in the alternative. OK, that makes sense.

0:32:05 Jenessa: Yes. Yes, so remember that a false factual statement, a statement that is about factual things, they borrow this much money, they spend this much on an athletic field. That's not an opinion, I'm making a factual statement, and that can be true or false. These people don't communicate well enough with you, the public, and that's why they're losing your trust. That's an opinion. That's not provably true or false, so a defamation standard doesn't even make sense to apply to that question, but if they're trying to say, well, the reason we fired him is he accused us of spending $200 ,000 a year on athletic fields, and we can demonstrate to you it's actually $170 ,000, and the Supreme Court was like, all right man come on close enough dude that's one of the factual findings they went through yeah yeah there's a ton of back and forth here about okay so first we have to ask can we just fire you for your opinions the major general rule that we already had coming in just because you have become a public employee have you surrendered all free speech rights no it's not they can just tell you to shut up about anything and everything no of course not but where are we going to draw the a line here. It will be more protected when it's a matter of public importance. That is going to come up over and over. It's not that things that are not a matter of public important are not at all protected. They can just fire you for literally anything you say because you took a government job. That's not right. That not fair. But especially when you speak about a matter public importance, we want to be very careful. We want to say say, a teacher talking about the school budget.

0:32:49 Thomas: OK. That's what happened. OK OK. Interesting. Interesting wherever

0:33:43 Jenessa: I mean, who better to speak about the school budget? What a terrible world if only, as you heard in that opening, so the teachers who wrote in support of the budget, nothing happened to them. And then this guy writes against it. So now we're going to teach teachers not to speak negatively about the budget, but they are the people most informed about whether this is a good budget. That seems really risky, right? So because it's a matter of public importance, we are going going to be extra careful they don't explicitly say in here like we're going to do strict scrutiny but they're essentially leaning that direction okay so we don't want to just do balancing it as you're a public employee you don't have your free speech completely gone away but your employer like any employer has to maintain an undisrupted work environment so you know imagine you were were just writing a letter to the editor to badmouth another teacher. I mean, come on, at some point they should have a right to be like, you can't, how are we supposed to maintain a proper school environment if you just get out there and are, you know, writing terrible things about your coworkers that are just like personal insults and like, there's a line, right? There has to be a limit as compared to if I did that as not a teacher, obviously like this, what recourse would the school or the government have for me as long as it wasn't defamation I would get away with it so okay what are we going to do there has to be balancing they don't completely lose their rights they extra don't lose their rates when it's a matter of public importance and even if it is a matter of pubic importance we still want to look at this disruption issue did it disrupt the environment and this is where we finally land on an answer for him first of all in the hearing they They do not present any evidence that it disrupt the school environment.

0:35:35 Jenessa: So really not helping yourself out here. And the court says, all right, so then at that point, if you don't even bother to try to show that it hurt the school, you must just be working from the assumption that it per se hurts the school hurts the district when you criticize the district. No because then every they're not allowed to criticize you ever at all like that can't be acceptable so you would have to put on first of all evidence that you have disrupted the environment and second of all that it really has to be about the school criticizing your boss is like a time -honored tradition like you have to criticize the school board he's not criticizing criticizing a student. He's not criticizing a co -worker. He is criticizing the school board.

0:35:34 Thomas: I heard that before yeah okay

0:36:34 Jenessa: Like, does that per se harm his ability to teach the science class? I don't think so. So that is ultimately, we are going to go back and forth with a million examples of like, well, if it was more like this, maybe we'd say that. And if it were more like this maybe we would say that, here's an example. It's possible to conceive of some positions in public employment in which the need for for confidentiality is so great that even a completely correct public statement might furnish permissible ground for dismissal. Uh, national security, you know?

0:37:07 Thomas: Sure I could see I mean teachers I could see like revealing confidential student information in the course of an opinion or something yeah

0:37:13 Jenessa: Absolutely. Right. Completely true statement. And maybe you even did it in the context of a matter of public importance. It would still be completely inappropriate. Inappropriate.

0:37:24 Thomas: To bring it to real life terms currently also a uh where there's woke that hopefully is out by the time you're hearing this about the essay the essay written and crammed by an idiot christian zero was too high of a score for it she got a zero and then the whole oklahoma lit on fire because of a child's zero imagine if one of the teachers had said this is ridiculous I can't believe they're doing this also look at this student's transcript they're a piece of shit here's all these other you know like revealed something about that and it's a comment about live issue it's an opinion but they revealed confidential information that they only have because their teacher there that makes sense to say nope not okay

0:38:02 Jenessa: Inappropriate. Right, exactly. Or imagine rather than this student revealed their own grade, which of course they're allowed to do, imagine if this TA had been so offended by that essay that they revealed it. Obviously inappropriate. I don't care how offended you are. I Don't care that they gave it to you. Like that's not appropriate. So it would be a true thing it would just be publication of information and it would be completely unacceptable so we could imagine that so now we're like okay I can see why only ever using the new york times standard you have to have lied and it has to be actual malice that can't be the rule you could also they give us here an example what about a relationship between a superior and subordinate of such personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the

0:38:06 Thomas: Yeah right right Yeah. Yeah. Okay. That makes sense.

0:38:53 Jenessa: Effectiveness of the working relationship between them.

0:38:55 Thomas: I don't totally think I understand that.

0:38:57 Jenessa: Think about if you were the district attorney and an assistant district attorney, somebody who like you delegate tasks to them, you have to do this, this, and this, and they were just non -stop bad -mouthing you in public. At some point, like, Like, oh, no, no. The relationship is of. Right.

0:39:04 Thomas: Oh, okay. Oh. Oh it's saying. Okay so I heard that it was like they're in a relationship. No. Okay, so it's saying that they're looking at what could be disrupted and it's like what if they are talking so much shit publicly about you and yet you're forced to work with them and that actually affects your ability to get the work done because the relationship is so damaged by the criticism publicly. Is that it? Okay. That's interesting. Yeah.

0:39:37 Jenessa: Yeah, exactly. So like you can. It's tough. That's a really tough case, right?

0:39:42 Thomas: Yeah, and it's funny you brought up the DA thing. That reminds me of a law show that we, I don't think we've done a lot of awful movies yet, but we were thinking about it where it's like there's the DA and then the person running against them works with them, and they're talking shit. It's almost the exact situation that you were talking about. It was kind of funny.

0:40:01 Thomas: That seems like, from that perspective, They should be able to run for office against someone they work for, possibly, and say whatever they want. You know, that makes sense.

0:40:09 Jenessa: And often once people are running for office, things get way more free speech protected because it's like, oh. We super don't want to step on the toes of a currently running candidate for office. We saw this with Trump. Trump. The second he announced his candidacy, every court was like, yeesh, I don't want to step on this.

0:40:29 Thomas: To a stupid degree. Yeah.

0:40:31 Jenessa: I would argue to way too much of a degree, but there's a reasonable limit there of like, okay, if you were the ADA running against the DA, now we have to let you publicly criticize them in order to do that. But there will come a point where you cannot work together, but the campaign's only going to last so long.

0:40:52 Jenessa: Like you see the balance we haveと start weighing, right? As another example of like a thing, we're not going to hold on this today, but what about this? Let's imagine they've carelessly made false statements, okay, that is pretty much what this guy did in some instances, about matters so closely related to the day-to-day operation of the school that a harmful impact on the public would be difficult to counter because of a teacher's presumed greater access. We kind of talked about that, right? Their greater access to facts. Could the school require you to make substantial efforts to verify the accuracy so like could they have a policy in place that you have to consult them before you publish things could they stop you from publishing on a matter of public importance almost certainly not could they put into their disciplinary procedures if you don't do basic fact checking this is going to come back to bite you we're not going to hold on that today we have a lot of those come up so really what they're trying to do here is they're saying okay I can't give you one test there are just so many different circumstances that could happen in the future and if we marry ourselves to only if the statement is false only ifthe statement is actual malice only if the statement disrupts this much it's not going to work we have to be flexible so what we're going going to say is a couple of general rules here and we are ultimately going to find for the teacher number one we will continue to uphold what we have said long before this case by taking a job as a public employee you do not just throw all your first amendment rights out the door they do not control your speech compared to a private employer it's very easy for them to fire you for pretty much anything other than like race religion gender they can say I don't like what you said And that's that. By taking a job with the state, the state does not get to just say, and now you can't say anything the state doesn't like. No, thank you. We don't like that. So we're sticking with that. We are reiterating and strengthening something we've said before, which is when you speak on a matter of public importance, we're going to take extra care. How are we going to look for that? Essentially, are you speaking about something that is important to the general public and kind of speaking in a way that the general pubic would? What they emphasize really heavily here is this guy wrote a letter to the editor that anybody else could have written. He used publicly available information. He criticized the board about decisions the board is making. Everybody in town cares about this. This is something that we have decided to put up to a vote. Vote. Maybe if we lived in a country where we don't vote on school budgets, we would have a different answer. But we have decided as a culture that whether or not the school needs X amount of money is a matter of public debate. And we have conversations about this. And you can't just kick him out of the debate because he became a teacher. If anything, as a teacher, you really want him in the debate. So matter of Public Importance, extra protection. If it's the kind of thing that the the general citizenry would have been able to say, would have had access to, that you would have no control over but for the fact that he became a government employee. Yeah, we're gonna protect that really strongly. At that point, you check all these boxes, you gotta show some really serious disruption for firing this person over their speech to be okay. Given that some of his statements are false, what do we wanna do with that fact? Because the true stuff, we already know. We want to protect that very strongly. The false stuff, usually what we say is, well, if it's false, it's got, you know, there's no value in false speech, right? Ah, but if

0:44:49 Jenessa: We say that if you were just like accidentally wrong about something, you can't ever speak and you can get in trouble for being accidentally wrong, exactly. We do not want to have a giant chilling effect because he said you spend $200 ,000 a year and you say we spent $200 ,000 last year and normally we spend $170 ,000 most years and we're going to fight about that? Like to fire you? I don't know about that. So what they say is we're going to not settle on the New York Times standard is probably too high. The idea that your false statement would have to be malice or reckless disregard. I can imagine a scenario where it was was just a mistake, but it was such a bad mistake that it's really a problem. On the other hand, we're going to kind of just not even treat it all that differently when it's not actual malice, when it'S just an accident. We're just going to treat you like a member of the general public. Members of the General Public makes accidental false statements sometimes. Now, if you would like to try to sue him for defamation, have at it. But this question is about whether you can fire him for it, and that is separate.

0:44:56 Thomas: It's going to have a chilling effect. Yeah. Wow.

0:45:59 Jenessa: You're probably not going to win that defamation. Because you're a public figure.

0:46:07 Ad: [Ad break 3 — ad music]

0:46:07 Jenessa: So ultimately he's going to get his job back and we end up with not a like, oh, here's our five part test, but we endup with some general principles that come out of here that will continue through. This case will get cited over and over and ever again in future cases. Anytime a public employee gets fired, they're coming back to this and they're going to say, okay, well, they said they don't apply this standard. They do apply this standards. Here's why my client is like Pickering. Here's why my client is not like Pickering. And we're going to slowly build off of this. But this is where it begins to say you as a teacher commenting on a matter of public importance, even if you make a mistake or two, that's not grounds to fire you because you criticized your boss. That that's that's enough. You have to be deeply disrupting the school environment or something.

0:47:01 Jenessa: And it's It's just, it's not here. It's not on the record. So it's very Warren Court -y in the sense of like, we're not going to give you like something really hard line, but I think that was really smart because it allowed them flexibility in future cases. And I think in the future, we can go into some other cases that you might be able to, as much as this feels wishy -washy, I think if we go into something that's really hard, some other case, you're gonna be pretty good at predicting where they go just based on those principles. Examples it works out pretty well going forward yes yes

0:47:33 Thomas: Well, and again, there's something to be said about judicial modesty. Judicial conservatism in a small C sense is a really good value, not trying to decide more than you have to in a given case specifically for that reason.

0:47:49 Jenessa: Right they could have said okay well if if he had done this this is the rule if he Had done this This is the Rule and instead they say well he didn't do that so I'm not quite sure what I would do if he HAD done that because he didn do that and I'm NOT going to create a counterfactual for a universe that doesn't exist that is lowercase c conservatism exactly to say I'm going to give you the rules I feel comfortable giving you based based on the facts in front of me, and I'm going to explain why I'm not giving you a hardline rule with some hypotheticals that do not themselves make rules right now. And yeah, it works. It works really well for as wishy -washy as it sounds. It will come out in other cases as like, oh, wow, this gave me the guidance I need to look at a fact pattern and say, yes, no, fired, not fired. It's pretty straightforward.

0:48:39 Thomas: And is this sort of like New York Times v. Sullivan in that this kind of settled this matter for the most part? You know, and then like you mentioned, there's the fine tuning. But is this like the one you go to when you're looking for the standard here still to this day?

0:48:51 Jenessa: Yeah, pretty much. My textbook on constitutional torts, this is like the one they cite and everything builds off of it um and that I think that textbook's maybe four years old and it's like yeah this is where we said okay we're not doing this standard that's too high we're definitely setting this minimum baseline this is the absolute lowest we will ever go that is pretty much held we've exactly like you've said we've fine -tuned this but we've not nothing has like drastically changed this I wouldn't say

0:49:24 Thomas: Okay, so that's our standard still to this day, again, with some fine tuning that maybe we'll cover at a later time. Why don't, you know, you're a lawyer, you get the big, huge, big time lawyer bucks at your church.

0:49:35 Jenessa: Oh, totally. Rolling in it over here.

0:49:39 Thomas: How would you apply that standard to say, quoting Charlie Kirk when he was killed?

0:49:47 Jenessa: Okay, so this is why when you read those complaints, they all look nearly identical. You're going to see this is a matter of public importance. That is without a doubt. There's no arguing. This is something the whole public, you couldn't go anywhere without seeing the public debating this. It is important to the general public. And that standard is actually quite low. I mean, think about like, yeah, the local school budget is of no importance to somebody, you know, five miles away from you, but it's still a matter of public importance. So obviously what was going on, Kirk was not just a thing that happened to a person. It was an entire political movement going on. Without a doubt, that means everybody is getting a heightened protection here. It's not just you can't be fired arbitrarily for saying just whatever. It's you were saying something really important. Then you're going to see a lot, a lot of those complaints go out of their way to say they were on their free time, they were using their personal computer. As soon as you start using the work computer, as soon as your in the school building, obviously it's more disruptive right two teachers gossiping in the teacher's lounge that could disrupt the environment if there's a fight in the teachers lounge if it's on your private facebook page using your private computer like off school time the fact that what you said could become known to the public does not inherently make it like you spoke on behalf of the school that's not not the same thing.

0:50:48 Thomas: Yeah that's funny yeah right this is so great because it's like I'm thinking back to what was in the where there's woke episodes that again I think people should listen to but so many things for one yeah there was the emphasis on that there also was the feeble attempts by some of the assholes who fired people to be like she put it on her linkedin page on which she advertises that That she's a teacher for this school. It's like, you mean it just says, like, teacher at whatever. Like, they tried to make it out to be. It's so funny. I laughed at that one. Even before hearing this episode of OA, I knew that was kind of BS. They tried to, they really tried to. But that explains that. They're really trying to link it to the job in a meaningful way. Yeah.

0:51:47 Jenessa: That's not the same. Right. Yes, exactly. Right, because the second I say hi, speaking on behalf of my employer, oh my god, fire me immediately. You could, I can't say, who cares what I said? I can't say I'm speaking on behalf of my employer and then go say something my employer wouldn't say. It doesn't matter, you know?

0:52:18 Thomas: No, that's that. Or if you do, they can fire you. And that makes sense. And we're all happy with that.

0:52:23 Jenessa: Exactly, even if I just said like my employer loves danishes, like, and they're just like, no, we don't. Who authorized you to make a statement on our behalf? Stop.

0:52:29 Thomas: It feels weird to fire you over the danish comment but like it's the weird thing that you did

0:52:35 Jenessa: Yeah. Why are you standing up and making, claiming to make official statements for us? Stop it. That's really weird and uncomfortable. Would be fine. But, you know, if I went to a rally and I wore my company t -shirt, oh, I'm a little bit speaking on behalf of my company now, really looks like it. But yeah, I mean, everybody has on their Facebook where, not everybody, a lot of people just put where they work. They're not speaking on behalf of their employer when they're like, look what I made for dinner. Like we know that it is personal.

0:53:09 Thomas: Yeah I it was that seemed very silly to me I'm so

0:53:12 Jenessa: It is. It's exceptionally silly.

0:53:12 Thomas: Glad to hear that and then the other I would say the only other thing that I think still doesn't work but I'm curious for your take on it now having gone through the law I would see multiple of them tried to and this is is sort of a stop hitting yourself type argument. But they did try to like Ouroboros it to be like, well, the fact that you made this statement and then a bunch of conservatives got mad about it and then complained about it is disruptive. And they tried to kind of pin it on the backlash being too disruptive. What do you think about that tactic?

0:53:48 Jenessa: That one's really tough. So like, okay, let's imagine a scenario. Let's take all the politics out of it. That's like, you know, heated stuff right now. And imagine your school board totally supported you at first and then there were just non -stop protests and time place and manner restrictions are not working like it really is hitting the point of you know because somebody shows up to protest outside the school you can time place in manner them you can say you have every right to protest on public property but not to the extent that it disrupts the children who are trying to learn this is not the appropriate time place manner to be doing a protest such that public education is unable to be completed. So you would be able to say you have to stay a certain distance from the school building. You can't be this loud in the middle of instruction, you know, whatever. But let's imagine all the stuff you're trying to keep that school environment normal is not working and it's no fault of the teacher and you say we don't blame you, we don'T blame you. But God, this school would just function so much better

0:54:51 Jenessa: If you were not in this building right now. Now, they could probably at some point get away with it. We do have later case law that says, okay, it was a matter of public importance. You had every right to speak on it. It was true. All of that. It's heavily protected. It was extremely disruptive. And at some point, the disruption reaches that point. Now, the problem I see in a lot of these is, first of all, as we're getting from here, you need to put into evidence that there was disruption. It is not per se disruptive to speak on a matter of public importance, to say something the board doesn't like, to Say something your colleague doesn't Like. Your colleagues should be able to control themselves in the school environment as long as you control yourself in the school environment.

0:55:36 Thomas: Is so fantastic that you say this because it's like, you know, the law or something that was one of the ones where they're like, okay, you say it was disruptive, but like the thing you cited was like some phone calls. It doesn't really, it doesn't Really do it. Yeah. That was definitely one of them. It's, it's very, very dead on what you're saying here.

0:55:50 Jenessa: Environment yeah yeah yeah certainly if you're bringing it up in the school environment if that's causing disruption if they are trying every reasonable measure to reduce disruption and they just it's 10 times easier cheaper whatever to just remove you yeah there's possibilities but when the disruption is that some people are mad like that too bad they're They're going to be mad about stuff I say. Like, what do you want from me?

0:56:22 Thomas: Yeah, yeah.

0:56:24 Jenessa: Like, that was a thing that could always happen. There's always people who are pissed you're teaching evolution. Like, is that a disruption?

0:56:29 Thomas: Right, right, right. Right. Interesting point. Would it need to be linked to the person's actual job or not? You know, can the school say, Because I think it feels a little problematic to open up the door to, well, if it gets super disruptive, because then that would just seem to tell me that like, oh, okay, well as long as the religious people cause enough of a problem, they can get anyone they want fired. That can't be right. Another distinction might be, OK, is it disruptive that there's some phone calls, complaints, protests, or is it more about does it need to be it's disruptive to that person's actual job as in it's affecting their job, not just like it's a bad effect on the workplace? Yeah.

0:57:09 Jenessa: Right, right. So that's a really important distinction is like, let's say it's disruptive because your co -worker is such a jerk about it. Well, then your co -workers the problem and they have to go. If you're controlling yourself that's their problem right if it is directly connected to your job it's like the teaching material you're choosing ah now we got to think back and forth about like okay we want to educate the kids but the choosing of the teaching material that's curriculum that's you know not ultimately 100 % your decision and okay is it disruptive because of you or is it disruptive because of the reaction but if it's connected to being a teacher to doing your job as a teacher that's obviously the most important part if it is just some stuff you did at home that has nothing to do with being a teacher yeah the standard of how disruptive that would have to be it I think it might be high enough that they just can't do that right

0:58:10 Thomas: Because I don't think they can, because imagine in the South, if just being black was the thing that caused disruption, you know, it's like you can't.

0:58:16 Jenessa: Right I come on well and also that would immediately invoke 14th Amendment, now you would have double First Amendment, 14th Amendment, all this other stuff kicks in.

0:58:26 Thomas: Well, so I actually meant to bring it up as an analogy to the 14th Amendment, take the First Amendment out of it. So by analogy, the fact that there's disruption can't overcome, and maybe that isn't a perfect analogy legally, but can't overwhelm some other right you have, I would think.

0:58:41 Jenessa: Yeah exactly, so certainly if it was just purely people are mad because you're black, people are mad becauseyou're a woman, there's no amount of disruption that could cause that would be like, just be easier if all the teachers here were whites. You cannot, absolutely not. So So yeah, certainly if it's just completely detached from your job as a teacher, you know, in this case, this guy was talking about the school budget. Ah, it does have a lot to do with being a teacher. So it interacts with your job and your boss and your everything. If he was just like talking about, I don't know, some other public importance, local thing, uh, utility bills. I mean, can you, no, he's, he'S just a member of the general public. Like how mad is everyone allowed to get about that? That's no. it's not gonna be enough so it's gonna have to disrupt the school environment because it interacts with the school like it it's almost definitional in what it means to disrupt the school environment like the disruption can't be there are mad people the disruption has to be to the learning environment because of what you said you know so

0:59:49 Thomas: Well, that's interesting because that was kind of the distinction I was trying to make a second ago. And I don't know how that works exactly. I was wondering if it needed to be like specifically this guy's classroom is getting disrupted in some way or his job, if not his classroom, like his ability to do his literal job, not just the running of the school, but maybe is there also allowance for like, if it's that disruptive to the overall workplace?

1:00:16 Jenessa: They were heavily focused on this idea that criticizing the board does not interrupt his teaching like what does that

1:00:23 Thomas: Oh, they did get to that specific. Okay, good. Okay. That's what I was thinking.

1:00:25 Jenessa: Yeah they were pretty focused on that general idea that everybody criticizes their boss it is good to criticize your boss they do have a great quote here that I think is funny not that this is what would have to matter but no evidence to support these allegations of such disruption was introduced at the hearing So far as the record reveals, Pickering's letter was created by everyone but its main target, the board, with massive apathy and total disbelief. So basically, you criticize your boss, your boss is furious, nobody else cares. Like, this is a classic example of like, okay, so they just fired you because they're personally offended.

1:00:56 Thomas: No one gave a shit yeah yeah that's that's a real barbara streisand effect right there maybe when someone criticizes you and nobody else really cares you shouldn't make it a supreme court issue

1:01:12 Jenessa: Just shut up about it. Yeah, and that's exactly right. Right? That the Supreme Court is like, as far as I can tell, nobody even took this seriously. It was after the budget failed. So it's not even like it was influencing votes. Criticizing your boss and your boss getting upset because they were criticized, that doesn't disrupt your ability to teach. So we really do have to think about it as to fire you from being a teacher, you have to you have been bad at teaching. You can't have been bad at being. It's unrelated. Yeah.

1:01:41 Thomas: Yeah there you go I think that's good good place to go out on that that's a good some summation

1:01:50 Jenessa: So overall, this one shows us where those border lines might exist, and the Kirk cases really don't.

1:01:57 Thomas: Yeah those are just bad all right well thanks for that breakdown that was a lot of fun really interesting and it is so funny like how many things I recognized from what you're saying. Now I recognize in the cases that we read and it's just dead on. That's really satisfying to get that background now and know exactly what's going on there. So hey, thanks so much, Jenessa. This was a lot of fun.

1:02:22 Jenessa: Good talking to you.

1:02:22 Thomas: Everybody, criticize your boss. It's a time -honored tradition. All right. Well, I'm really excited, Jenessa, because it sounds like there's so much more that we could go over that you wanted to do a little something special for for patrons.

1:02:35 Jenessa: Yeah I've got quite a few cases that came after Pickering where it's gonna let let us kind of test ourselves on those rules that feel a little ambiguous and wishy -washy are actually pretty straightforward to apply. I think your gut is going to get you most of the way on this.

1:02:56 Thomas: We're going to do almost like a T3BE a little bit.

1:02:58 Jenessa: Yeah, yeah, a little bit.

1:02:59 Thomas: Okay. You want to give the listeners a sample? What's the first question? And then we'll answer it on the Patreon.

1:03:04 Jenessa: Yeah sure. So okay, thinking about those rules that we had set up, we've got everything we're going to do is a public employee who got fired and is suing to try to get their job back. How about this person? Employee speaks privately with a supervisor about race discrimination in the workplace they get fired and they sue the employer says free speech right of public employees extends only to speech that informs the public the employee maintains the key issue is not if the speech is directed at an audience outside the workplace but whether it's on a matter of public concern

1:03:41 Thomas: Okay I confess I'm not totally sure what that'll be. I'm excited to find out. So hey, if you want to know the answer to that exception, or I guess modification, I guess you'd call it a pickering, patreon .com slash law. I am excited. It's good to get back to bonus stuff for patrons I'm so glad you prepared this. Thank you. Well, we'll see everybody over there.

1:03:56 Jenessa: Yeah I'm excited like we're yeah okay Okay, back in.

1:04:34 Thomas: Oh my my God. Well, this is, we might just, I might just restart. Call it a clean cut. Okay.

1:04:42 Thomas: The old white man of 1968 might be too woke for this nation.

1:04:49 Jenessa: Imagine, they give us a lot of imagines in here. I'm gonna find the right one.

1:04:55 Thomas: No, that's not out for another year or two.

1:05:03 Jenessa: Nope, not that one. Where's my little footnote?

1:05:04 Thomas: Man, 1968. What a year for music and say whatever the, and say, whatever they want.

1:05:13 Jenessa: I don't know why I can't find this. I could have swore I had it.

1:05:23 Jenessa: Oh my God, fire me immediately. Ooh, I'm a little bit speaking on behalf of my company now.

1:05:31 Jenessa: Just be easier if all the teachers here were white.