[00:00:00] Speaker 04: Okay, it looks like we're ready. [00:00:03] Speaker 00: Thank you. [00:00:03] Speaker 00: May it please the court, counsel. [00:00:06] Speaker 00: My name is Kenneth Lawson. [00:00:08] Speaker 00: I'm representing myself pro se. [00:00:11] Speaker 00: To be honest, I have a cough drop in my mouth because I had a respiratory infection. [00:00:17] Speaker 00: I had like this dry cough now that I just can't get rid of. [00:00:20] Speaker 04: You know, the acoustics are a little funny in this room, but I think if, as long as you, you don't have to worry about speaking loudly, but if you speak a little bit slowly, that will help us on our end. [00:00:29] Speaker 00: Okay, thank you. [00:00:33] Speaker 00: At the outset, I would just say, I do believe I've covered everything in my briefs. [00:00:38] Speaker 00: If you have any questions, I'm more than willing to answer them. [00:00:41] Speaker 04: I have a question about moodness. [00:00:43] Speaker 00: Yeah. [00:00:44] Speaker 04: It seems like most of these, I'll call them sanctions, [00:00:47] Speaker 04: have been satisfied or lifted, and so what's left? [00:00:52] Speaker 00: Well, again, one of the issues is did the court, the lower court, the district court, properly apply voluntary cessation with respect to the issue of mootness, with respect to the no contact order? [00:01:09] Speaker 04: Well, on voluntary cessation, you know, we apply that as an exception to mootness where the defendant does something, right? [00:01:16] Speaker 04: hence the term voluntary cessation, but the person you're talking about isn't a defendant, wasn't a defendant in the action. [00:01:24] Speaker 00: But I'm not arguing, you're saying that the person who requested. [00:01:29] Speaker 04: The faculty member who was the last one to say, I don't want the no contact anymore, she pulled out and asked for the no contact order to be lifted, is my understanding, but that's not an action that we attribute to the defendant, is it? [00:01:45] Speaker 00: actually can, and the reason for it is because that faculty member couldn't institute a no-contact order. [00:01:51] Speaker 00: It's the policy that allowed the defendant to institute a no-contact order based on viewpoint speech. [00:02:02] Speaker 03: separate and apart from whether or not it's attributable to the defendant, I think in order for the voluntary cessation exception to apply, you would need to be able to show that the order is reasonably likely to be reinstated. [00:02:15] Speaker 03: I'm not really following how that can be the case now that this investigation and discipline are complete. [00:02:23] Speaker 04: Are we going to be capable of repetition the innovating reviews that we're going to know? [00:02:28] Speaker 03: No, I'm still on the voluntary cessation piece. [00:02:32] Speaker 00: And so if you look at the provost's testimony at the preliminary hearing, what he said was, any time I get, this is his testimony, because I asked him, what rule did you apply? [00:02:41] Speaker 00: What supportive measures were in place? [00:02:43] Speaker 00: Once you ban me from campus and issued a no-contact order based on someone not liking what I had to say, what was my due process? [00:02:50] Speaker 00: So I said, what rule did you follow? [00:02:52] Speaker 00: Here's what he said in his testimony. [00:02:54] Speaker 00: I had the inherent ability as the provost [00:02:58] Speaker 00: The faculty member comes to me and says that they're afraid of another faculty member to boot you off campus. [00:03:04] Speaker 00: He said I cannot cite to a rule. [00:03:05] Speaker 00: I didn't cite to a rule. [00:03:07] Speaker 00: He said that I didn't, the collective bargaining agreement doesn't allow me to do it. [00:03:11] Speaker 00: He says it's my inherent job to do it. [00:03:13] Speaker 00: And so my point is, right before that hearing happened, this faculty member says, okay, I don't want the no contact order. [00:03:20] Speaker 02: Let me ask this. [00:03:21] Speaker 02: There's a slightly different question, but I think we're headed toward the same set of questions. [00:03:25] Speaker 02: What is it right now that you cannot do that you say you're entitled to do? [00:03:33] Speaker 00: Since I've been teaching this, I teach criminal procedure, criminal law, professional responsibility and evidence, and I run the Hawaiian Assists Project. [00:03:41] Speaker 00: And so since I've been there, I've been teaching in criminal procedure, Fourth Amendment, my activity in past civil rights movements. [00:03:48] Speaker 00: and police shootings of unarmed black men, and excessive force. [00:03:52] Speaker 00: And let me say this real quick. [00:03:54] Speaker 00: And these people knew that. [00:03:56] Speaker 00: See, I just didn't show them. [00:03:57] Speaker 02: That's not my question. [00:03:58] Speaker 02: My question is, what is it that you want to do, that you think you have a right to do, that you are now prevented from doing? [00:04:06] Speaker 00: When you look at the decision, it says, when I described at the faculty meeting, my past protests, those were veil threats of violence. [00:04:16] Speaker 00: And so now if I go into class now and start teaching the same protest that I was talking to at the faculty meeting, the same protest I've been teaching for 10 years, the same footage from me protesting, I can get in trouble because if a student says this is a veil threat of violence, if I use the word right fragility, if I use the word woke, all these words are taken. [00:04:37] Speaker 00: Any decision-maker decision saying that I created a house to work in violence. [00:04:41] Speaker 02: So what is it that prevents you from using those terms in class? [00:04:44] Speaker 00: Because Provost Bruno says this in his March 8th letter to me. [00:04:50] Speaker 00: He says, I would like to underscore the seriousness of the situation. [00:04:54] Speaker 00: As the decision maker noted in her decision, the university promotes difference of opinion and ability to raise concerns whether our perceptions are impropriety. [00:05:04] Speaker 00: However, it is also expected [00:05:07] Speaker 00: that the faculty engage in such discussions with professionalism and collegiality. [00:05:11] Speaker 02: But my understanding is the original dispute arises not out of what you taught in class, but rather it was a dispute as to what you said in the faculty meeting. [00:05:19] Speaker 02: Isn't that right? [00:05:19] Speaker 00: And that's the same thing I say in class. [00:05:21] Speaker 02: But as I understand, there was never any order that prevented you from doing something in class. [00:05:26] Speaker 02: Is that correct? [00:05:27] Speaker 00: It's the words. [00:05:29] Speaker 00: It's the same words I use in class. [00:05:32] Speaker 00: I use it at the faculty meeting. [00:05:33] Speaker 00: My students don't leave class saying, he's threatening us. [00:05:36] Speaker 00: These are their threats. [00:05:37] Speaker 00: But they left at the faculty meeting. [00:05:38] Speaker 00: Well, four days after the faculty meeting, when we called for a protest, then everybody got upset. [00:05:45] Speaker 02: Let me ask the question in a different way. [00:05:47] Speaker 02: Is there any order now in existence that prevents you from doing this? [00:05:51] Speaker 02: Or is it just that you are expecting that you might get such an order if you [00:05:57] Speaker 00: do these, say these words? [00:05:59] Speaker 00: Fair question, right. [00:05:59] Speaker 00: So the last sentence in his admonition to me, he being a provost, please be mindful that any future violations of university policy of a similar nature may result in a disciplinary action up to and including discharge. [00:06:12] Speaker 00: Okay, when he says similar nature, in his letter, similar to what? [00:06:16] Speaker 00: Similar to the language that I had been sanctioned for, which... In the faculty meeting. [00:06:22] Speaker 02: Yes. [00:06:23] Speaker 02: So, he wasn't talking similar to anything that you'd done in class. [00:06:28] Speaker 00: No, the speech that I said in the faculty meeting is equivalent to the speech I say in class. [00:06:34] Speaker 00: Why can't I say it in class and not be sanctioned and then say the same thing in the faculty meeting and be sanctioned? [00:06:39] Speaker 02: Well, I've got a little trouble with that because it's not entirely clear to me from the record exactly what you said in the faculty meeting, nor is it, of course, entirely clear what you say in class. [00:06:49] Speaker 02: I understand about law teaching and so on. [00:06:51] Speaker 02: People say lots of things, including the professor, and there's a wide range of academic freedom that allows you to say all kinds of things. [00:06:58] Speaker 02: But it's not clear to me exactly what it is that you said in the faculty meeting that would have the same impact and would be subject to the same sort of discipline if you said it in class. [00:07:10] Speaker 00: Well, move the classroom aside. [00:07:13] Speaker 00: What did I say in the faculty meeting that wouldn't protect the speech? [00:07:16] Speaker 02: Well, you better tell me, because I'm not sure exactly what you said. [00:07:20] Speaker 02: Because the record doesn't give me a transcript. [00:07:23] Speaker 00: No, so it's a verified complaint. [00:07:25] Speaker 00: You have a very thorough declaration by me. [00:07:29] Speaker 00: You have the decision by the decision maker. [00:07:32] Speaker 00: The records are there. [00:07:33] Speaker 02: Okay. [00:07:35] Speaker 02: So the question then, or come back to it, what likelihood is it that you will say something that will be subject to the same discipline? [00:07:44] Speaker 00: What I'm saying is if, so if you're talking about, we already know what's protected speech. [00:07:48] Speaker 00: True threats are not protected speech, right? [00:07:51] Speaker 00: And so they admit, I made no true threats. [00:07:54] Speaker 00: What they say is veil threats, which is what? [00:07:58] Speaker 00: Me describing my past. [00:08:00] Speaker 00: How can me be describing my past civil rights movement and activity be a present threat? [00:08:08] Speaker 00: But even if it is, it's a veil threat. [00:08:09] Speaker 00: Who did I threaten? [00:08:10] Speaker 00: What did I say? [00:08:12] Speaker 00: And the record, it's all in the record. [00:08:14] Speaker 00: What they say is, is that when you describe your past protest, and that you would not determine the other cheek type of protest, and you believe in self-defense, that if the client puts their hands on you, you're not going to let them smack you, you will defend yourself. [00:08:28] Speaker 00: This is what they said, this is in the record, or bail threats of violence. [00:08:33] Speaker 00: There was an email, this is in the record, where after we called for a protest, the boss of students and myself called for a boycott and went on a listserv. [00:08:42] Speaker 00: Then faculty members sent an email back saying we should have new rules or rules about collegiality in faculty meetings because can call names. [00:08:51] Speaker 00: And I emailed back saying, come at me all you want, but don't lie to me. [00:08:54] Speaker 00: I didn't call him by names. [00:08:56] Speaker 00: The decision took out the three words, come at me. [00:09:00] Speaker 00: Right out of that, I said that that's a veil threat of violence. [00:09:03] Speaker 00: Come at me all you want, but don't lie on me. [00:09:06] Speaker 00: I didn't call anybody names. [00:09:07] Speaker 00: The decision just takes out those three words, and then sanctions me for that. [00:09:11] Speaker 00: My point, Your Honor, is my speech is being chilled. [00:09:15] Speaker 00: I'm afraid to go to class and speak on things because if a student, or not, says, you know, Professor Lawson was talking about those, remember those protests you guys sanctioned for? [00:09:24] Speaker 00: He's talking about them again in class. [00:09:26] Speaker 00: And this is a threat, a belt of the violence. [00:09:29] Speaker 00: Professor Lawson said white fragility, and the decision said that that word [00:09:33] Speaker 00: He said the word woke. [00:09:37] Speaker 00: All those are the factors that got me sanctioned. [00:09:42] Speaker 00: What did I say that was a true threat? [00:09:45] Speaker 00: What did I say where my speech wasn't protected? [00:09:49] Speaker 02: But you're back to what might happen in class. [00:09:53] Speaker 02: All the sanctions that were in place, most of which seem now to have been removed, stemmed from the faculty meeting, not from anything you said in class, is that correct? [00:10:01] Speaker 00: No, it stems from the boycott email that me and Balsa sent out. [00:10:06] Speaker 00: So the faculty meeting on the Friday, after I got done speaking, I was invited to speak during the announcement section. [00:10:13] Speaker 00: I spoke after communicating with the Boston students about us being heard, about no black people being on the panel. [00:10:20] Speaker 00: I spoke only when invited. [00:10:22] Speaker 00: When I got finished, that faculty meeting lasted four more hours. [00:10:25] Speaker 00: And the issue never came up. [00:10:28] Speaker 00: There was no disruption. [00:10:29] Speaker 00: No one called the police. [00:10:30] Speaker 00: No one said, Ken, calm down. [00:10:31] Speaker 00: No one said, you're threatening. [00:10:33] Speaker 00: No one said nothing. [00:10:34] Speaker 00: And then four days later, when they hadn't changed the event, the event was going to happen on a Thursday. [00:10:41] Speaker 00: When they had not changed the event, put black panelists on the event, Bolsonaro sent the email calling for the boycott. [00:10:47] Speaker 00: That email that was sent around is also part of the sanctions. [00:10:54] Speaker 00: So now if I want to use the listserv again and protest something else, if I want to use the listserv again and talk about black racism at the law school, I can get fired. [00:11:04] Speaker 02: Well, but as I understand the listserv now, it looks as though they've changed the policy with respect to the listserv, is that correct? [00:11:12] Speaker 00: And that's why the court didn't do the proper analysis, because when you're talking about retaliation, first-member retaliation, [00:11:19] Speaker 00: Prior to me sending out that, there was no rule in the evidence, in the record that I provided you at the Lord Court hands. [00:11:27] Speaker 04: I have a question about that, if I could, right there. [00:11:31] Speaker 04: I think you're right, chronologically, that requiring prior permission to use the list service wasn't a uniform policy at the time it was imposed upon you as a sanction, my word. [00:11:43] Speaker 04: But it became universally adopted later. [00:11:46] Speaker 04: And so I've looked to try to figure out whether there's case law. [00:11:49] Speaker 04: I don't remember seeing any. [00:11:50] Speaker 04: I don't see any cited where that is deemed retaliatory because initiated in one way. [00:11:55] Speaker 04: And the reason this matters, sir? [00:11:58] Speaker 04: Sir? [00:11:59] Speaker 04: That's all right. [00:12:00] Speaker 04: But I just kind of I need to marry this up with where we are, which is I think you're needing to convince us [00:12:06] Speaker 04: I think there's an absence of authority supporting that position, and I think you need to convince us that the District Court abused her discretion, which it found no likelihood of success on the merits, which is why it seems to me, you know, without really supporting authority on that point, you've got a really tough battle. [00:12:22] Speaker 00: And I don't dispute that, but just let me talk about the Ninth Circuit Court of Appeals decision, Rodriguez. [00:12:27] Speaker 00: That's where I should look? [00:12:31] Speaker 04: Which Rodriguez? [00:12:32] Speaker 04: We've got several. [00:12:33] Speaker 00: Rodriguez versus Maricopa County. [00:12:35] Speaker 04: Okay. [00:12:35] Speaker 04: I know. [00:12:36] Speaker 04: Okay. [00:12:36] Speaker 04: Go ahead. [00:12:37] Speaker 00: If I can just read this real quick. [00:12:38] Speaker 00: It says plaintiffs assert that the district court could have applied this harassment policy to suppress the professor's speech because he spoke in a limited or non-public form. [00:12:49] Speaker 00: For the purpose of this appeal, we assume plaintiffs are correct that the email list servers were limited or non-public form. [00:12:56] Speaker 00: Even in a non-public form, the state actors may not suppress speech because of his viewpoint. [00:13:00] Speaker 00: And that is exactly what application and harassment policy to the professor's emails and website would have done. [00:13:08] Speaker 00: Others could speak about race and culture without violating the policy. [00:13:12] Speaker 00: This professor's speech would be singled out for suppression because of his disfavored opinion on those issues. [00:13:17] Speaker 00: And so, again, prior to me sending out that email, when President Trump got elected in 2016, there were numerous emails going on the same list that are calling Trump supporters homophobic, racist, and deplorables by our faculty to each other, and they wanted to have a vote in a faculty meeting. [00:13:34] Speaker 00: Those types of political emails have been going on for years at the law school. [00:13:38] Speaker 04: You're missing my question here. [00:13:40] Speaker 04: I appreciate your point, but I'm raising a different question, which is, I think for this retaliation claim, you're talking about the treatment of you vis-a-vis the listserv was disparate. [00:13:55] Speaker 04: Right, because when it was initially imposed, that sanction hadn't been imposed on the rest of the law school. [00:13:59] Speaker 04: I think it was in all of the other departments in the university, but not the law school, right? [00:14:03] Speaker 04: Then at some point, it became applicable to all of the other professors at the law school. [00:14:08] Speaker 04: So I'm trying to figure out if there's an example in the case law where I can see a comparable fact pattern where something was initially imposed and it was, I think you have an argument that you were singled out, but then by the time the sequence is over, that's not the case. [00:14:24] Speaker 04: And all of this is factored into it. [00:14:26] Speaker 04: I don't think you have clear support for that in our existing case law. [00:14:30] Speaker 04: And so when I look to see whether the district court abused her discretion in finding you hadn't shown a likelihood of success on the merits, it seems to me that the judge, she had no authority that would have supported that. [00:14:42] Speaker 04: So I don't see an abuse of discretion. [00:14:44] Speaker 04: I want to give you a chance . [00:14:45] Speaker 00: . [00:14:45] Speaker 00: . [00:14:45] Speaker 00: On the list, sorry . [00:14:46] Speaker 04: . [00:14:46] Speaker 04: . [00:14:46] Speaker 04: Yes, I wanted to give you a chance to tell me what you think I'm missing. [00:14:50] Speaker 00: On the listserv issue? [00:14:52] Speaker 00: Yes. [00:14:52] Speaker 00: Okay. [00:14:53] Speaker 00: I'll concede that. [00:14:55] Speaker 00: I mean, I think I agree with you on that. [00:14:57] Speaker 00: But I do think the court does in her November order state that I present a callable claim on the unconstitutional application of the policies that's applied to my speech. [00:15:10] Speaker 00: And so the whole point I'm trying to make on that issue, this gets to a separate issue about ongoing harm and chilling effect. [00:15:17] Speaker 00: And then why it's not moot is because once you say that there's a culpable claim of a First Amendment violation in retaliation context, a viewpoint context, that's automatically irreparable harm underneath the Ninth Circuit. [00:15:30] Speaker 02: Yes, you're arguing a voluntary cessation here. [00:15:36] Speaker 02: I tried to find out whether you argued that in the district court. [00:15:40] Speaker 02: District court does not talk about the voluntary cessation argument, and I look back at the papers, at least some of the papers that you'd filed in the district court, and I couldn't find an argument in the district court as to voluntary cessation. [00:15:52] Speaker 00: Did you argue voluntary cessation? [00:16:00] Speaker 00: And so right before the hearing is when they took away the no, when she rescinded her no contact order right before the hearing. [00:16:06] Speaker 00: So it was not in my initial brief because the issue hadn't came up with respect to the voluntary cessation of the unconstitutional practice to implement a no contact order. [00:16:15] Speaker 00: So we go to the hearing and now argue that in oral argument. [00:16:19] Speaker 00: And then I also brief it when I reply. [00:16:21] Speaker 02: Okay. [00:16:22] Speaker 02: Okay. [00:16:22] Speaker 04: Thank you. [00:16:25] Speaker 04: I think we're ready to wrap up on that. [00:16:29] Speaker 04: Thank you. [00:16:30] Speaker 04: When you come back we'll put two minutes on the clock. [00:16:43] Speaker 01: Good morning and may it please the court. [00:16:44] Speaker 01: My name is Justin Lenny, associate general counsel for the University of Hawaii and attorney for the appellees. [00:16:49] Speaker 01: The district court did not abuse discretion in denying the plaintiff's motion for preliminary injunction. [00:16:54] Speaker 01: An abuse of discretion only occurs if there is a clearly erroneous finding of fact or if the court used the wrong legal standard. [00:16:59] Speaker 01: Neither occurred here. [00:17:00] Speaker 01: The district court was correct when it determined that there is no imminent or immediate threat of harm [00:17:05] Speaker 01: that warranted injunctive relief. [00:17:06] Speaker 01: By the time that the motion for preliminary injunction was heard, Mr. Lawson's one-month suspension without pay had already been served, all of the no-contact orders with various faculty members had already been rescinded, he was allowed back onto the law school campus, and with the exception of the student list served, which there were new restrictions as the court acknowledged, [00:17:26] Speaker 01: which no faculty member was allowed to access. [00:17:29] Speaker 01: All of the restrictions for other listservs, such as the faculty listserv and other listservs that the law school had, those restrictions were also lifted. [00:17:35] Speaker 03: So besides preventing Professor Lawson from using the listserv, were there any other reasons the university adopted the listserv restriction? [00:17:44] Speaker 01: Yes, Your Honor. [00:17:45] Speaker 01: After the events occurred at the faculty meeting, and this eventually went to investigation, the associate dean, Dean Merkay, he had conversations with people on campus, and then he discovered that it was actually the practice of all of the professional schools within the University of Hawaii system to not allow unfettered access to student listeners by faculty members. [00:18:07] Speaker 01: And so based on that new knowledge that had happened, the law school also followed suit with the other professional schools on campus. [00:18:17] Speaker 01: I do want to discuss three main topics. [00:18:20] Speaker 01: The first is that under the challenge of the university's policies, there is no ongoing constitutional violation that would warrant prospective relief. [00:18:28] Speaker 01: I'd also like to discuss that the voluntary cessation doctrine does not apply to this case. [00:18:33] Speaker 01: And last, I would like to conclude with that the district court did correctly find that the appellant was unlikely to succeed on the merits of his claim regarding the restrictions to the student listserv. [00:18:43] Speaker 01: So first, as to the ongoing constitutional violation, the appellant's argument is essentially that because this retaliation had happened to him once, it could happen again. [00:18:52] Speaker 01: And in doing so, he primarily cites Riley's American Heritage Farms for the proposition that if there is an ongoing policy, that there can be prospective relief. [00:19:05] Speaker 01: However, that case was much different. [00:19:07] Speaker 01: In that case, the Ninth Circuit had reversed summary judgment, finding that there was a genuine issue of material fact as to whether there was an ongoing violation. [00:19:14] Speaker 01: In that case, the policy itself was the retaliation. [00:19:18] Speaker 01: So in that case, the district court said that there was a genuine issue of fact because [00:19:28] Speaker 01: The retaliation in that case was that people could no longer go to Riley's farms based on social media posts that Riley made that teachers were upset with. [00:19:37] Speaker 01: Here the challenges are to the university's policies themselves, the university's non-discrimination policy, and the university's non-workplace violence policy. [00:19:49] Speaker 01: These are general policies that apply to all faculty members and all employees of the university. [00:19:54] Speaker 01: It's not solely in retaliation to Mr. Lawson, and so for that reason, [00:19:58] Speaker 01: is very distinct from the cases that Mr. Lawson is supporting. [00:20:02] Speaker 02: Let me ask you this. [00:20:05] Speaker 02: Let's assume that Professor Lawson does exactly what he did before in a faculty meeting that's going to take place in two weeks. [00:20:15] Speaker 02: Does the university say that it will not have the same reaction that it did before? [00:20:23] Speaker 01: Well, if he does the exact same thing again, then I do believe that the university would have the same response. [00:20:31] Speaker 02: So it may be we've got capable repetition yet evading review, depending on what Professor Lawson does. [00:20:37] Speaker 02: So let's say he stands up again and says, for the record, I'm doing exactly what I did the last time. [00:20:44] Speaker 02: And if you think I'm varying from what I did the last time, tell me how I'm varying, and I'll correct my behavior. [00:20:49] Speaker 02: So it is exactly the same thing. [00:20:51] Speaker 02: So it sounds like he's in control as to whether or not there's going to be capable of repetition to evade a review. [00:20:59] Speaker 01: I think I'd like to just focus on why he was penalized in the first place. [00:21:03] Speaker 01: It was not because of his pure speech. [00:21:06] Speaker 01: It was really based on his conduct in the faculty meeting that was found to be... And how are you differentiating between speech and conduct? [00:21:14] Speaker 02: So what was the conduct as distinct from the speech? [00:21:17] Speaker 01: So there was a decision maker in this that had specific findings as to what the conduct was. [00:21:23] Speaker 01: The conduct included abusive and hostile verbal attacks. [00:21:27] Speaker 02: That sounds like speech, okay. [00:21:29] Speaker 01: In the volume of his voice. [00:21:31] Speaker 02: That sounds like speech, yeah. [00:21:33] Speaker 01: That he was angry, tirade, vitriol. [00:21:36] Speaker 01: Sounds like speech. [00:21:38] Speaker 01: I understand, but this is all still within the public employment context. [00:21:41] Speaker 04: But the question was, is there anything other than speech? [00:21:44] Speaker 04: I only understood this was about speech. [00:21:48] Speaker 04: I don't think there was conduct that involved pushing or shoving or anything of the sort. [00:21:51] Speaker 04: Is that contested? [00:21:53] Speaker 04: Council, would you just better examples of speech? [00:21:58] Speaker 04: Is there anything else that would be conduct that's not speech? [00:22:03] Speaker 01: One thing that I would like to add that was also important was that there was a repeated interrupting of other faculty members. [00:22:10] Speaker 01: I understand that that's speech. [00:22:11] Speaker 04: That sounds like the Ninth Circuit, but it's speech, it's speech. [00:22:14] Speaker 01: Because of the repeated interrupting mixed with his volume, mixed with what he was saying, which was deemed to be threatening, all of these things together were under the totality of circumstances were deemed to be a violation of the university's nonviolence policy. [00:22:30] Speaker 03: So it does sound like the no contact order [00:22:33] Speaker 03: may be reasonably likely to recur. [00:22:36] Speaker 01: I don't believe that's true, Your Honor. [00:22:37] Speaker 01: Unless there is an actual new complaint based on new conduct that was caused by the appellant, unless there's some new event that's going to happen in which he threatens people under the nonviolence policy, then it would not really be capable of occurring again. [00:22:56] Speaker 01: I do also want to briefly just touch on that the briefing didn't really discuss the specific exception of repetition yet of eating review. [00:23:05] Speaker 01: It was all based on voluntary cessation. [00:23:09] Speaker 02: Well, those pretty much overlap. [00:23:11] Speaker 02: They mean almost the same thing. [00:23:12] Speaker 01: I understand it. [00:23:15] Speaker 01: I do want to touch on the voluntary cessation point, though, and why voluntary cessation does not apply. [00:23:21] Speaker 01: And so normally when voluntary cessation applies, there is an argument that the defendants make that the plaintiff lacks standing because of a new event that has occurred and therefore [00:23:31] Speaker 01: The case typically for some type of declaratory or injunctive relief is moot. [00:23:36] Speaker 01: We have a much different context here in the preliminary injunction context where the district court only said that there was no longer any immediate harm that warranted prospective relief. [00:23:49] Speaker 01: The appellees never argued that Mr. Lawson's entire case was moot. [00:23:54] Speaker 01: We only argued that he was no longer entitled to this relief, the rescission of the no contact order through a preliminary injunction because it had already happened. [00:24:03] Speaker 01: And so the appellant essentially did obtain the relief that he sought prior to the order denying the preliminary injunction. [00:24:11] Speaker 01: And last I do want to just mention that as a matter of fact it was not clearly erroneous for the district court to find that it was the other professor who had rescinded the no contact order based on her declaration which said that she had requested that the order be rescinded. [00:24:30] Speaker 01: Last I do want to just briefly mention in regards to this voluntary cessation and ongoing harm argument is that in the briefs there are arguments that [00:24:40] Speaker 01: There should be a presumption of irreparable harm based on his colorable claim. [00:24:45] Speaker 01: I wouldn't describe what the district court's order was as saying that he had a colorable claim. [00:24:50] Speaker 01: She only said that there would be genuine issues of material fact, arguably, as to whether the policies were unconstitutionally as applied to him. [00:24:59] Speaker 01: and that if he can prove that later on in the case, he could be entitled to retrospective relief in the form of damages, but there was no sufficient evidence to show that he would be entitled to prospective relief in the form of some type of injunction. [00:25:13] Speaker 01: And there is case law in this Ninth Circuit, and I did not cite it in the briefs, but there is a case called Ranges v. City of Tacoma that specifically states that there is no presumption of irreparable harm that arises in the First Amendment retaliation context. [00:25:29] Speaker 02: I was puzzled by the district court not discussing volunteer cessation or capable repetition of evading review. [00:25:36] Speaker 02: In your view, to what degree was that question presented to the district court? [00:25:45] Speaker 02: I don't think that the court even had to reach that issue of voluntary cessation. [00:25:49] Speaker 02: I asked you a different question. [00:25:51] Speaker 02: To what degree was that question presented to the district court? [00:25:53] Speaker 02: Was that argued to the district court? [00:25:57] Speaker 01: It was argued extensively in the appellant's reply brief in support of his motion for preliminary injunction. [00:26:05] Speaker 01: The voluntary cessation argument was, I think it first appeared in a footnote in our opposition explaining that the voluntary cessation doctrine wouldn't apply in this case because factually it was rescinded by the faculty member and not by the university. [00:26:22] Speaker 04: That's a voluntary cessation issue. [00:26:23] Speaker 04: When you talk about capable of repetition yet of ending review, it's always a little tricky, right? [00:26:28] Speaker 04: Because you can get awfully speculative. [00:26:29] Speaker 04: And as long as you're willing to dream up enough facts to get the stars to align again, just in the same way, just about anything is capable of repetition. [00:26:39] Speaker 04: So it sounds like the briefing didn't go there. [00:26:43] Speaker 04: It didn't talk about what would need to happen for this circumstance to arise again. [00:26:49] Speaker 01: I would agree, Your Honor. [00:26:50] Speaker 01: I don't think that the briefs did specifically address capable of repetition, yet evading review. [00:26:55] Speaker 04: Well, opposing counsel crafts that in a sort of a broad way. [00:27:00] Speaker 04: And he's saying, hey, my right to speak freely is chilled, at least in faculty meetings, because I spoke out and I suffered these consequences. [00:27:11] Speaker 04: And so I think that he's viewing that pretty broadly. [00:27:17] Speaker 04: This particular circumstance arose when there was an upcoming event, a special event to celebrate. [00:27:23] Speaker 04: I think it was Black History Month and a particular panel and then the conversation went kind of sideways because there are very sharply divergent views as Judge Fletcher, Professor Fletcher often tells me about law school faculty meetings. [00:27:36] Speaker 04: I haven't been there, but so that's how that went. [00:27:40] Speaker 04: Was the district court judge obligated to consider whether the same kind of [00:27:45] Speaker 04: heated conversation could arise concerning different topics, or on a different occasion, or different faculty members, or what was she required to consider? [00:27:57] Speaker 01: Well, first there's a couple of facts that I wanted to just clarify. [00:28:01] Speaker 01: There was not necessarily a panel that would have been at this event. [00:28:04] Speaker 04: It was really a- Yep, I understand. [00:28:06] Speaker 04: And it was gonna be a- Right. [00:28:08] Speaker 01: I don't think that the district court was required to consider whether Mr. Lawson's speech in the classroom would be affected by... Talking about the faculty meeting. [00:28:18] Speaker 04: I understand. [00:28:18] Speaker 04: I mean, it doesn't seem to me to be so outlandish to think that the faculty at a law school could have another conversation and they could have divergent views and maybe a heated conversation. [00:28:28] Speaker 04: But how far was the district court to go in envisioning whether this particular circumstance could arise again where the plaintiff might think that his free speech rights were being chilled? [00:28:41] Speaker 01: I think that there was insufficient evidence in the record and that was what the district court had ruled, that there was insufficient evidence to show that there was any type of ongoing or future event that would have transpired. [00:28:52] Speaker 04: Was this a one-off event or had there been a pattern or history of the plaintiff having divergent views and exchanging angry words with other faculty members? [00:29:04] Speaker 04: Was there any allegation that it was a pattern? [00:29:08] Speaker 01: No, I don't believe that this was a pattern. [00:29:11] Speaker 01: What had happened at the faculty meeting was so severe and different than any other meeting that they had ever had with Mr. Lawson before, which caused them to be terrified because they had never seen this side of him until this faculty meeting. [00:29:25] Speaker 01: So I wouldn't say that there's not necessarily a pattern of abusive behavior by Mr. Lawson. [00:29:30] Speaker 01: It was really new and shocking to the other attendees that had been at that faculty meeting. [00:29:42] Speaker 04: I don't think we have any other questions, counsel. [00:29:46] Speaker 04: Thank you. [00:29:47] Speaker 04: You're welcome. [00:29:52] Speaker 00: To your question, Your Honor, if you look at the end of the hearing in front of the district court, what I'm trying to explain to her, the voluntary recession, and that the policy that I'm arguing is unconstitutional, is the provost saying he has inherent power. [00:30:06] Speaker 00: To just issue no contact order for faculty members says to him I'm afraid of another faculty member he says he is inherent authority to boot us off campus and issue no contact orders. [00:30:17] Speaker 00: When I tell her that the district court responds and says that can't be true. [00:30:22] Speaker 00: She says he has to give you a hearing. [00:30:24] Speaker 00: I said your honor can I make a record? [00:30:25] Speaker 00: She says no. [00:30:28] Speaker 00: So I'm trying to make the record to show that, because here's the concern about the voluntary succession. [00:30:34] Speaker 00: You guys, the courts can rule, and then they can do it again to me tomorrow. [00:30:38] Speaker 00: They can wait till this is over with. [00:30:40] Speaker 00: And this is the reason why it's important that the state have that heavy burden of demonstrating that, okay, if you're going to stop this policy, make sure that you prove to us, before you walk out of here, it's not likely to reoccur again. [00:30:52] Speaker 04: Council, you now have a heavy burden because you're trying to convince us that the district court abused her discretion when she found that you hadn't shown a likelihood of success on the merits. [00:31:03] Speaker 00: But you can review the facts de novo. [00:31:07] Speaker 00: Am I right? [00:31:08] Speaker 04: Am I right that there isn't an allegation? [00:31:10] Speaker 04: I didn't see any allegation that this is a pattern or practice that you have engaged in in faculty meetings. [00:31:14] Speaker 04: This looked like a one-off event where people had [00:31:18] Speaker 04: you know, closely held views, strongly held views, and exchanged the words that we see in the record here. [00:31:25] Speaker 04: But it did seem to be aberrational to me, and no allegation to the contrary, more importantly. [00:31:30] Speaker 04: So how is the district court wrong when she elides the question about capable of reputation, yet evading [00:31:38] Speaker 04: Why would she think another aberrational event would arise? [00:31:41] Speaker 00: Because I've been making it, because I have talked, I've used the same words, the same examples for years. [00:31:46] Speaker 00: Why is it happening? [00:31:48] Speaker 04: Did you use for years the example where you said, I'm not a nonviolent person? [00:31:52] Speaker 00: Well, I never said that, but even if I didn't, even if I did say it, how is that workplace nonviolence? [00:31:59] Speaker 04: Well, the problem she had is she had a record that showed other folks felt threatened. [00:32:02] Speaker 04: And what I'm saying is it seemed to me that this was entirely aberrational, a one-off event. [00:32:07] Speaker 04: But if we're talking about the— The district court—sorry. [00:32:09] Speaker 00: No, I'm sorry, Judge. [00:32:10] Speaker 04: I just want to give you a chance to respond. [00:32:11] Speaker 04: So what I'm looking at is whether the district court abused her discretion when she said, you know what, this is over, the sanctions have passed. [00:32:17] Speaker 04: You may or may not be entitled to damages, but I don't see a reason for injunctive relief here. [00:32:21] Speaker 04: Why was she wrong about that? [00:32:22] Speaker 00: Because she's using protected speech to justify the threat. [00:32:26] Speaker 04: I don't know what you mean by that. [00:32:29] Speaker 00: Because there's no true threats. [00:32:31] Speaker 00: True threats are the ones that's not protected. [00:32:34] Speaker 00: Who did I threaten? [00:32:36] Speaker 00: I didn't threaten to kill anybody. [00:32:38] Speaker 00: I didn't threaten to shoot anybody. [00:32:40] Speaker 00: Who did I threaten with violence? [00:32:41] Speaker 04: So your position is that she was wrong, you know, in views of discretion, in deciding that you weren't going to be able to show that there was a true threat made. [00:32:49] Speaker 00: She has to analyze my words under the First Amendment to determine if they're constitutional. [00:32:53] Speaker 04: My question was, forgive me, but you're over time, so I just want to know, is that it? [00:32:57] Speaker 04: Is that a yes or no? [00:32:59] Speaker 04: You think she was wrong and that she couldn't determine at the stage she was at, [00:33:04] Speaker 04: that you're not gonna be able to show a likelihood of success on the truth threat question, is that it? [00:33:16] Speaker 00: Yeah, I think there has to be a hearing to determine were my words protected, because if she's saying, and she does kind of say that at the end of her order, she says I'm giving a colorable claim, but she's saying it's perspective, [00:33:32] Speaker 00: for damages, right, as opposed to perspective relief ongoing. [00:33:36] Speaker 00: My whole point, though, is if I go to another faculty meeting and I said, you know what, you guys are discriminated against black people or Native Hawaiians or whatever, and a faculty member doesn't like it, or the faculty meeting gets kind of heated, or we have a political conversation about [00:33:49] Speaker 00: which we've had, right? [00:33:53] Speaker 00: If my words are protected, but you claim that you're hurt by it, now all of a sudden I get banned from campus and there's been no evaluation, was his words protected speech? [00:34:02] Speaker 00: And finally, most law schools and universities have like rules of collegiality and we don't. [00:34:11] Speaker 00: And what the university is doing here is trying to use the workplace nonviolence and EEO policies. [00:34:16] Speaker 00: I didn't discriminate against Nelson. [00:34:19] Speaker 00: What I said was, and she agrees, she's born in Jamaica, was raised in Canada. [00:34:23] Speaker 00: I said you're not from here. [00:34:25] Speaker 00: That's not being discriminatory. [00:34:27] Speaker 00: I mean, you could be North Korean, South Korean, Japanese, Chinese. [00:34:31] Speaker 00: The fact that they're all Asian doesn't mean that they're all alike. [00:34:34] Speaker 04: I'm going to stop you there and see if there are any more questions from the panel. [00:34:37] Speaker 04: No, it doesn't look like there are any more questions. [00:34:39] Speaker 04: I want to thank you both for your careful briefing and attention to this matter and argument. [00:34:43] Speaker 04: We appreciate your patience with your questions. [00:34:46] Speaker 04: We're going to take that matter under advisement and stand in recess for the day.