[00:00:00] Speaker 00:
May it please the court and counsel.

[00:00:03] Speaker 00:
My name is Michael Love.

[00:00:05] Speaker 00:
I'm an attorney from Spokane, Washington.

[00:00:07] Speaker 00:
I represent Randy Thompson in this particular matter.

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Mr. Thompson is an educator who has worked in education for over 33 years.

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He's currently working at Ridgeline High School teaching world history and health.

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During his 33 years prior to the matter that has brought us here today He was well regarded educator both as a teacher coach and Assistant principal he had no prior discipline and his performance evaluations were excellent

[00:00:43] Speaker 00:
What we're asking the Ninth Circuit to do is to reverse the lower court's rulings in this particular case, which denied Mr. Thompson's motion for partial summary judgment as well as reversing the summary judgment that was granted to the defendants at the lower court.

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I would note that this case has had a prior procedural history.

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this case was in front of a different panel of the Ninth Circuit Court of Appeals on the issue of an interlocutory appeal as related to the issue of qualified immunity for the individual defendants.

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That qualified immunity was denied, but one thing that's important

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for the purposes today is that there were some important concessions that were made.

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One was that Mr. Thompson, on August 17 of 2020, was, while watching the Democratic National Convention, speaking as a private citizen and speaking on a matter of public concern.

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The evidence appears to be uncontradicted

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that the district, based on his Facebook post, took an adverse action against him in, one, placing him on administrative leave, and then later transferring him to a position as a certificated teacher, so removing him as an assistant principal.

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This case, essentially, when you look at the Pickering Analysis,

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hinges on the really the fourth element and that has to do with the school districts interest in for instance preventing disruption or the reasonable prediction of disruption.

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In this particular case Mr. Thompson asserts that there is no evidence in the record of any actual or material disruption or reasonable prediction of disruption to the school district.

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Mr. Thompson, when he posted this Facebook post on August 17, 2020, it was intended to be a post to a limited group of people.

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He had his Facebook post set on private and not public.

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Mr. Thompson was at home during this time.

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It was during the summer.

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He was not performing any duties as an assistant principal or an employee of the school district.

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He was simply at home watching the Democratic National Convention.

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His post did not identify him in particular as an employee of the school district.

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And in some of the other cases where it has been brought up about

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media exposure.

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Prior to his lawsuit, Mr. Thompson did nothing to have this particular post exposed to the public, people in the community, or to the media.

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After he posted this on August 17, he was two days later contacted by Assistant Superintendent Jay Rao,

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Mr. Rao indicated to him that the post had been seen.

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Mr. Thompson was surprised by that.

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Mr. Rao indicated that this was very serious.

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Mr. Thompson indicated during that phone call with Mr. Rao that he was essentially speaking on a constitutional First Amendment basis.

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Mr. Rao stated that he disagreed with him that this was serious and that he had been instructed by Mr. Small, the superintendent,

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to place him on administrative leave.

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Now, the Ninth Circuit in Delia has said that administrative leave is considered a form of an adverse action.

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Was he continued during this administrative leave at the pay rate of assistant principal?

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He was.

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Yeah, OK.

[00:05:04] Speaker 00:
Yes, Your Honor.

[00:05:04] Speaker 04:
So if we're talking about back pay, the pay during that period continues at his level, OK?

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Right, except for when then he was transferred to the certificate position.

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Yeah, later on it.

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So yeah, I get that.

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Mr. Thompson.

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Council, let me ask you this.

[00:05:18] Speaker 05:
Sure.

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So I know you mentioned that Mr. Thompson intended that to be a private Facebook post.

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It wasn't meant to be disseminated.

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Does it matter?

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Whether he intended it for it to be private.

[00:05:31] Speaker 05:
Yeah, I mean, I tell kids all the time when they come to field trips to my court, don't put things online that you don't want everybody to see, because eventually somebody will be able to get their hand on it and show it to everybody.

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Does it matter?

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Does it make a difference?

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Well, I think it can make a difference in some of the cases if he actually had made it public.

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There's a Damiano case that's been brought up.

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But in that particular case,

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The intent of the parties, they had very strong feelings about a certain issue that was related to the school, and they actually had made that very public.

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And that was one of the distinguishing issues in this case.

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In this particular case, it's conceded that he was speaking as a private citizen, and his intent was to have that.

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He had it clicked on as a private message.

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What happened was is that Megan McMurtry, who worked with him, saw the post,

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And then she took that post and shared it with another coworker, who then shared it with another administrator, who then shared it with her husband, who was an administrator.

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And that's how it got to Superintendent Small.

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Was Megan on his list of friends or something?

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Well, she must have been in order to have seen the post.

[00:06:54] Speaker 04:
Well, it must have been, she says maybe.

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I mean, I read her testimony.

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She says, I think so, or she's got some sort of ambiguous terms about it, right?

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Right, right, right.

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And so- Yeah, counsel, let me ask you a question, because I'm not an expert on Facebook.

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When a person has a message that they deem

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generally private, but they wanted to go to all the people they listed as Facebook friends.

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Does it go to every Facebook friend that they have?

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You know, that I don't know, Your Honor.

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I don't

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I have a Facebook account, but I don't necessarily use it except to see other things that may have been sent to me.

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I don't know that.

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I know that you can limit it to a certain group of people, a certain number of people.

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And his intent was around 12 Facebook friends that shared similar political beliefs as he did.

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Quick question for you.

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At the time he's put on administrative leave, which happens very quickly,

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Right.

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Does the school board have to believe that this was limited only to his friends or was there some reason to suspect that maybe it was broadcast more broadly?

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I mean, what did they know at the time they put him on administratively to do the investigation?

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They knew very little other than the fact that there had been this post and who the person was that initially saw it and then shared it with another person.

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So there was a total of four people.

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So what I'm after is when the school board puts him on administrative leave, right there at the very beginning, I should say the superintendent puts him on leave right there at the very beginning,

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I'm trying to figure out if they had reasonable basis to do that while they tried to figure out the nature of the post whether it had been purely private or whether it had been public because As I think you're arguing it had been private.

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That's one thing had it been public that meant quite another Right and our position is there was no reason to put him on administrative leave

[00:09:20] Speaker 04:
Understand that but I'm trying to figure out at the time they put him on administrative leave was there some reason to at least suspect That it had been widely broadcast instead of simply given to 12 of his Facebook quote friends Our position based on the record your honor that there was no reason to suspect that and then later on as it turned out there was nothing that Mr.. Thompson had done that led to any wide dissemination.

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I mean he immediately

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What happened was his mother apparently had contacted him, which is similar to the Noble case that we've cited in our brief where the person is contacted by a family member.

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Somebody has seen this that should not have seen it.

[00:10:04] Speaker 00:
So within a very short period of time, he then

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He took the post down, disabled it.

[00:10:11] Speaker 04:
What I'm after is once they start the investigation and put him on administrative leave, things start to go south pretty fast because one of the investigators discovers all these phrases about sort bus, then things go on.

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and he claims that it was altered and they find that it really – that's a false claim.

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I mean all kinds of things happen afterwards that seem to me an appropriate message for discipline.

[00:10:36] Speaker 04:
So I'm trying to figure out before all things start going south, was the school board justified in putting them on administrative leave?

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Because I think that's the strongest part of your case.

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As you got further along, we got more trouble for your client.

[00:10:50] Speaker 00:
I don't think it was appropriate to place him on administrative leave at that point because the only thing they had was the post that had been seen by some limited people.

[00:11:01] Speaker 00:
The stuff that happened afterwards

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What the district did was, they first they call them, they tell them you're on administrative leave, then they send them a letter.

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At that point, they hire an investigator and attorney by the name of Anne Allen to do this investigation.

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She interviewed the people.

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Then they asked to broaden the investigation.

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But again, you're talking about a person that had no prior discipline.

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I mean, his entire career in the 33 years had been stellar.

[00:11:30] Speaker 00:
And then, interestingly enough, she interviews a Mike Siren, who prior to that had written letters of recommendation for Mr. Thompson, who was a candidate, to become a principal.

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Mr. Siren wrote this letter of recommendation six months prior to his post.

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But during the investigation, he said that he had some concerns with some of these things that we've briefed, alleged comments that were made, you know, to students.

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But he was never disciplined for any of that, even though Mr. Siren knew about this or would have known about it as his boss at Evergreen Middle School.

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So then they proceeded to then do the district.

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proceeds to do these impact interviews of other people, including two school board members that were ultimately ones that were supposed to review his appeal on the transfer.

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But one of the important points here is that there has been a concession that this was a private

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He spoke as a private citizen on a matter of public concern.

[00:12:37] Speaker 04:
Yes, I understand that concession.

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But as you've heard me say, I'm trying to figure out at the time they first put him on administrative leave, does the school board know that?

[00:12:50] Speaker 00:
Well, I think the school board would have known.

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I think the superintendent is the one that would have known.

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I should say the superintendent.

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Of how this whole thing came about.

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As far as the train of people the four people that was the train that brought this there Let me ask you I do have a follow-up factual question.

[00:13:12] Speaker 05:
How many people?

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To date have actually seen the post well not to date during the investigation have actually seen the post The people that would have

[00:13:23] Speaker 00:
what during the impact interviews there was eight people that they interviewed they didn't show them the post they read the post to them there would have been prior to reading the post to them they were not aware of the post no okay no there was only there was only this led up to four just 12 Facebook friends and then Megan McMurtry sharing it which led a chain of three other people to get to mr. small which immediately led to his administrative leave there was no media

[00:13:51] Speaker 00:
There was no community members saw this, no students, no parents, and there were absolutely no complaints.

[00:13:57] Speaker 03:
Council, I have a question for you.

[00:13:58] Speaker 00:
Yes.

[00:14:00] Speaker 03:
Did you say that the record does not show how many Facebook friends he had to whether he had 12 Facebook friends or 100?

[00:14:12] Speaker 00:
The Facebook post, the record I believe shows that he had about two dozen Facebook friends around that number.

[00:14:20] Speaker 03:
So did his post go to all the Facebook friends?

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That I don't know if he limited it to the Facebook friends.

[00:14:29] Speaker 00:
I know that it's undisputed in the record that it was set on private for only his friends.

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It was not set on a public setting.

[00:14:39] Speaker 03:
But if it's set on

[00:14:44] Speaker 03:
that could go to his friends, then presumably all of his Facebook friends would receive it.

[00:14:53] Speaker 00:
It could happen that all of his Facebook friends may have seen it.

[00:14:56] Speaker 00:
My understanding from the record, though, he did have a limited friend group.

[00:15:00] Speaker 03:
But you don't have a number.

[00:15:02] Speaker 00:
I don't have a specific number, Your Honor, as I'm standing here.

[00:15:06] Speaker 00:
I think I read the number 12.

[00:15:08] Speaker 00:
Yeah, 12.

[00:15:09] Speaker 00:
I'm out of time.

[00:15:12] Speaker 03:
Council Council Council Propeller so you could prepare I'll give you two minutes extra time for a bottle You know beautiful Council for a police mr. McFarland, I think

[00:15:39] Speaker 02:
Good morning, Your Honors.

[00:15:41] Speaker 02:
May it please the court, Mick McFarland.

[00:15:43] Speaker 02:
I represent Central Valley School District and the individually named defendants.

[00:15:48] Speaker 02:
In analyzing Mr. Thompson's retaliation claim, I really think there are two different aspects of his claim that need to be analyzed separately because the analysis is really different with respect to the two different claimed adverse employment actions.

[00:16:06] Speaker 02:
And there are two separate set of facts that relate to the two different claimed adverse employment actions And there are actually different defendants that were involved with the two different claimed adverse employment actions with the first employment action of course being the or claimed adverse employment action being the

[00:16:28] Speaker 02:
placement on paid administrative leave and that involves not the school board your honor but it involves then superintendent Ben Small.

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The school board doesn't enter into our analysis.

[00:16:43] Speaker 02:
So I want to start then with the paid administrative leave and as Mr. Love correctly pointed out it is undisputed that Mr. Thompson made that Facebook post in his private capacity.

[00:17:01] Speaker 02:
It is not conceited or undisputed that the Facebook post as a whole constituted a matter of public concern.

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And I would submit that this court can and should find that it did not involve a matter of public concern.

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And I would ask that based upon this court's recent finding in Adams versus County of Sacramento 143F41027 that was just decided on July 9th of 2025.

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And in that case, this court emphasized looking at the form and the context in which speech is made.

[00:17:40] Speaker 02:
And in that case, it was texting between individuals about a matter of public import and specifically condemnation of racist posts that these people had received.

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But this court found that in that context, the speakers did not intend a broader audience than their close group of friends that they were texting with.

[00:18:12] Speaker 02:
And that is identical to what we are dealing with in this situation, because as Mr. Love just told you, it is Mr. Thompson's testimony that he only sent the Facebook message, that issue,

[00:18:26] Speaker 02:
to his 12 closest friends.

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And he said it was a rant among like-minded persons that were never intended to get beyond his 12 friends.

[00:18:39] Speaker 02:
Your Honor asked a question of whether the post goes to everybody on the friend list.

[00:18:47] Speaker 02:
I think what the testimony was, and it comes in later when we're talking about the decision to transfer to the teaching position,

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Mr. Thompson's testimony, remember, is that it was only sent to 12 of his friends, but then this alleged hacker came in and not only changed the body or message that was included in the Facebook post, but also changed the setting such that the Facebook post was seen by more than just those 12 people that he intended to send the Facebook post to.

[00:19:22] Speaker 02:
So for that reason, it is not a matter of public concern and the court can find, uphold the summary judgment as it relates to the paid administrative leave on that ground.

[00:19:37] Speaker 02:
If the court disagrees, then we look at what is contained in that post.

[00:19:42] Speaker 02:
And there's really two separate types of speech I would submit that are in that post.

[00:19:47] Speaker 02:
There's a criticism of the Democrat Party and specifically the Democratic National Convention.

[00:19:54] Speaker 02:
But there are also epithets that are contained in that Facebook post.

[00:20:00] Speaker 02:
And that is important, and I would point out the court's recent case of Birch versus City of Chubbuck, which was likewise decided in July of this year, and the site is 146F4822.

[00:20:12] Speaker 02:
And in that case, the court really looked at the fact that there can be protected speech, which in that case was a yard sign from a city employee supporting somebody who was running against the mayor.

[00:20:27] Speaker 02:
as well as non-protected speech, which was the employee plaintiff's criticisms of the mayor at the office.

[00:20:37] Speaker 04:
Can I interrupt and ask you this?

[00:20:39] Speaker 04:
As I think you can tell from my questioning from your friend on the other side,

[00:20:42] Speaker 04:
What most concerns me is the initial placement on administrative leave before they're doing any investigation whatsoever.

[00:20:52] Speaker 04:
We know that this was a private post.

[00:20:56] Speaker 04:
That's the concession, that it was a private post.

[00:20:58] Speaker 04:
What's the justification for putting on administrative leave for a private post?

[00:21:04] Speaker 02:
Yes.

[00:21:05] Speaker 02:
So I think you have to look, Your Honor, at the purpose of the paid administrative leave.

[00:21:12] Speaker 02:
And I would submit that in this context, and when you look at the purpose of the administrative leave, it was not in fact an adverse employment action.

[00:21:22] Speaker 02:
Mr. Love said that the Dahlia case says that paid administrative leaves

[00:21:29] Speaker 02:
Are adverse employment actions?

[00:21:31] Speaker 02:
It's not quite what the case says the case says they can be adverse employment.

[00:21:35] Speaker 04:
That's pretty adverse to me, so I would submit that The is there some other justification beyond the one that you're saying that's not an adverse action justification meaning I'm saying what's the justification for putting him on and paid administrative leave?

[00:21:52] Speaker 04:
I'm assuming for purposes of the question that that's an adverse employment action fair enough

[00:21:57] Speaker 02:
to do an investigation to find out exactly what your honor is questioning, and that is how widely disseminated was this?

[00:22:07] Speaker 04:
That is to say, was it in fact a private communication?

[00:22:11] Speaker 04:
To investigate that question.

[00:22:13] Speaker 02:
Correct, and it's really two-part.

[00:22:14] Speaker 02:
It's one, was it widely disseminated, and two, did Mr. Thompson use that type of epitaph

[00:22:26] Speaker 02:
while he was at school.

[00:22:28] Speaker 02:
And so going back to this distinction of protected versus unprotected speech, the focus for Central Valley School District from the outset of this case has been on that word demtard.

[00:22:41] Speaker 02:
And specifically on the TARD part of that, and I would submit that the evidence is very clear.

[00:22:48] Speaker 02:
It doesn't matter what preceded the term TARD.

[00:22:51] Speaker 02:
It was TARD that was so concerning to the school district.

[00:22:56] Speaker 02:
And it's so concerning to the school district because of the context of the speaker and who's using it and his role as an educator and leader in the school district.

[00:23:07] Speaker 02:
that is serving special needs students.

[00:23:11] Speaker 02:
So at the end of the day, Your Honor, the paid administrative leave is for the purpose of performing an investigation, and the investigation is for the purpose of protecting children to find out what impact this type of language is having on students.

[00:23:31] Speaker 05:
Council let me ask you the same factual question I asked mr. Love how many people saw the post that and these I'm not counting the people that were intentionally shown the post to see what their reaction is but How many people saw the post how widely disseminated was this post?

[00:23:47] Speaker 02:
We do not know the answer to that question.

[00:23:51] Speaker 02:
We know that it passed hands, I think, four times before it was eventually brought to Assistant Superintendent J. Rowell.

[00:24:02] Speaker 02:
But beyond that, we don't really know that was the point of the investigation.

[00:24:07] Speaker 05:
Did anyone else ever independently raise a concern about the post to the school?

[00:24:14] Speaker 02:
No, because when Mr. Thompson was put on administrative leave, he took the post off of Facebook.

[00:24:21] Speaker 02:
So I don't think that it remained on there for much time after it was brought to the school district's attention.

[00:24:29] Speaker 02:
I was going to say, though, Your Honor, of course, in the Pickering Balancing Test, there's kind of a twofold analysis.

[00:24:37] Speaker 02:
One, has there been a known disruption?

[00:24:41] Speaker 02:
And two, is there a reasonable likelihood of future disruption?

[00:24:46] Speaker 02:
And I would point out that in this case, again, the investigation is done to find out how widely disseminated it was.

[00:24:55] Speaker 02:
And I would point to the, that's part of the record and I can't cite to the exact portion of the record, but when this lawsuit was filed,

[00:25:03] Speaker 02:
and made the newspaper, there were hundreds and hundreds of comments that were submitted to, I think it was online on Facebook, the spokesman reviews Facebook site, on both sides of the equation, you know, condemning the school district for what it did.

[00:25:21] Speaker 02:
But you know equally number if not more person saying I would never let my child go to school At any school that this man was an administrator at so the prediction of disruption that Ben Small had when he made the decision to put him on paid administrative leave in order to determine whether it was widely disseminated I think was very valid and I would point out in that regard the

[00:25:50] Speaker 02:
recent case that Mr. Love just referenced the Damiano versus Grant Pass school district number seven case that was decided on June 17th, 2025 by this court because that case really hits at what

[00:26:11] Speaker 02:
is at the basis of this lawsuit because it talks about the disruption to school districts as a result of the public trust in school districts being eroded.

[00:26:27] Speaker 02:
quotes that I like the most from that case.

[00:26:33] Speaker 02:
It says, the position of a public school teacher requires a degree of public trust not found in many other positions of public employment.

[00:26:43] Speaker 02:
And that's because, as the court points out, our school districts act in local parenti to the students that are in the care and concern of the school district.

[00:26:55] Speaker 02:
And so, taking from that statement or that quote that I just read, in this case, we're dealing with not just a teacher, but an administrator, the face of the school district, who Ben Small recognizes that this post has been disseminated, at least

[00:27:15] Speaker 02:
to four people that he knows of.

[00:27:17] Speaker 02:
So let's find out in order to protect the kids that we who are in our care custody and control from this type of harmful epitaph.

[00:27:27] Speaker 05:
Council in Damiano our court reversed the district court's order granting summary judgment in favor of the school given and I quote the numerous genuine factual disputes regarding the circumstances of plaintiffs expressive conduct and the extent of the resulting disruption.

[00:27:43] Speaker 05:
That's what I'm trying to figure out.

[00:27:44] Speaker 05:
What is the extent of the resulting disruption here?

[00:27:47] Speaker 05:
In particular, in that case, Damiano, our court noted that it is undisputed that at least some students protested in response to the campaign, but the extent of the protest was unclear.

[00:27:57] Speaker 05:
So I'm still trying to figure out.

[00:27:59] Speaker 05:
To me, it seems like in Damiano, the disruption was much bigger than it is here, and still, our court reversed the district court's grant of summary judgment.

[00:28:11] Speaker 02:
My recollection is there was yet disputed facts upon the extent of the disruption.

[00:28:18] Speaker 02:
But what we know in our case, that at the time we made the decisions, the extent of the past disruption might not have been extensive.

[00:28:29] Speaker 02:
But that's why I referred to the Facebook posts on the spokesman review website because the analysis isn't solely what disruption has already occurred.

[00:28:41] Speaker 02:
It looks at what disruption can reasonably be predicted in the future.

[00:28:47] Speaker 02:
And that was what the school district accurately predicted in this case.

[00:28:53] Speaker 05:
In Damiano, though, didn't they publish the video?

[00:28:56] Speaker 05:
I mean, the two, the assistant principal and the teacher, they published the video.

[00:29:00] Speaker 05:
It wasn't a private post.

[00:29:00] Speaker 05:
It wasn't a post between me and my friends on Facebook.

[00:29:04] Speaker 05:
Does that make a difference that this video, I'm sorry, not the video, the post here really came to life more or was more public because of what the school did in investigating it, if that makes any sense?

[00:29:18] Speaker 02:
In our case, it became more public.

[00:29:21] Speaker 02:
I don't know if it became more public because of the investigation, because the investigation was limited, I think, to the... You did show it, though, right?

[00:29:28] Speaker 05:
The school did show it to a few individuals to get impact statements?

[00:29:30] Speaker 05:
My understanding is they read it to... Okay, read it to them, but those people were made aware of it.

[00:29:37] Speaker 05:
And otherwise, they would not have seen it?

[00:29:39] Speaker 02:
Well, if the school district hadn't taken action at the outset, for what we know, it could have been widely disseminated at that point because, according to Mr. Thompson, there was a hacker that

[00:29:54] Speaker 02:
made it public.

[00:29:55] Speaker 02:
So it was because of the school district's actions, I would submit, that prevented it from being more widely disowned.

[00:30:05] Speaker 04:
That is to say, once he's called in, he then deletes it.

[00:30:09] Speaker 04:
And you're saying, had he not been called in, he might not have deleted it.

[00:30:12] Speaker 04:
Correct.

[00:30:13] Speaker 04:
I see.

[00:30:13] Speaker 02:
And I would also say, with respect to the Damiano case, two things.

[00:30:19] Speaker 02:
One, we are asking for qualified immunity for all of the individual defendants.

[00:30:26] Speaker 02:
And I believe consistent with case law that says there's rarely a case where you have to go through the Pickering balancing test that qualified immunity is not appropriate.

[00:30:36] Speaker 02:
I would point out in this case, not only does the Pickering Balancing Test, I submit, weigh heavily in favor of the school district, but the school district actually went through the Pickering Balancing Test.

[00:30:51] Speaker 02:
That's what the impact statements are for, and so I believe that entitles all of the defendants to qualified immunity.

[00:30:58] Speaker 02:
And then the only last thing I'll say, Your Honor, with respect to the Damiano case,

[00:31:03] Speaker 02:
is I do think the context of the speech is different because here it's a production of students.

[00:31:10] Speaker 02:
It's not a disruption in the education of the school district.

[00:31:13] Speaker 02:
It's a production of the students and the epitaphs that were used.

[00:31:17] Speaker 05:
I have one more question for you.

[00:31:18] Speaker 05:
I know you're out of time, but if you wouldn't mind indulging me here.

[00:31:22] Speaker 05:
So I think I'm having kind of a hard time understanding your position.

[00:31:27] Speaker 05:
It's not a matter of public concern because he didn't disseminate it beyond his 12 friends.

[00:31:32] Speaker 05:
But then at the same time, the school's justified in doing this because it could cause this wide disruption.

[00:31:39] Speaker 02:
That relates to the administrative leave.

[00:31:42] Speaker 02:
So put them on paid administrative leave to determine whether or not it's been widely disseminated.

[00:31:50] Speaker 02:
But then the second aspect that I didn't get to is the transfer to the teaching position, and that is based upon

[00:31:59] Speaker 02:
what was discovered in the investigation in the in-school conduct, which is not speech or behavior that is spoken as a private citizen, but instead is at school, at work, public speaking, and therefore not entitled to First Amendment protection.

[00:32:19] Speaker 05:
Okay.

[00:32:20] Speaker 05:
Thank you.

[00:32:20] Speaker 02:
Thank you.

[00:32:27] Speaker 00:
A couple things I want to address in my two minutes.

[00:32:30] Speaker 00:
My good friend, Mr. McFarland, he mentions this, how the public saw this post and commented on it.

[00:32:38] Speaker 00:
This was after a formal lawsuit had been filed.

[00:32:40] Speaker 00:
Prior to the decision to transfer, prior to the lawsuit, there was a limited group of people that had even seen the post.

[00:32:48] Speaker 00:
It's undisputed.

[00:32:50] Speaker 00:
He talks about the public concern.

[00:32:52] Speaker 00:
Again, that is a judicial admission that he was speaking as a private citizen on a matter of public concern.

[00:32:59] Speaker 00:
When you look at the Post, they've even admitted that use of the term demtard, he was referring to the Democratic Party.

[00:33:07] Speaker 00:
They also take issue with taking out to the woodshed.

[00:33:11] Speaker 00:
In the testimony that's in the record, even Mr. Small admitted that metaphorically speaking, he's talking about

[00:33:19] Speaker 00:
the Republicans beating the Democrats in the upcoming election.

[00:33:23] Speaker 00:
Similar metaphorically to a high school basketball coach telling his players, let's take him out to the woodshed.

[00:33:29] Speaker 00:
Doesn't imply that there's going to be any violence.

[00:33:32] Speaker 00:
It's just winning.

[00:33:34] Speaker 00:
In the record, Mr. Small states that the reason why he made the decision to transfer Mr. Thompson

[00:33:44] Speaker 00:
was not because there was any disruption, because there was no evidence of any disruption.

[00:33:50] Speaker 00:
He said that there was a break in trust.

[00:33:54] Speaker 00:
That was it, based in part on what he had posted, and that's why they made the decision to do the transfer.

[00:34:03] Speaker 00:
It's undisputed in the record that prior to this lawsuit being filed,

[00:34:07] Speaker 00:
no media were aware, no parent contacted the school, no student contacted the school, there was no complaints from any parent, there was no complaints from a student, no complaints from any members of the community, and again, no member

[00:34:23] Speaker 00:
this did not become a cause celeb prior to a lawsuit where it was part of the media, unlike the Damiano case where there the Ninth Circuit did say that there was questions of fact that required that this be remanded.

[00:34:38] Speaker 00:
So based on what is in the record, Mr. Thompson is asking that the court reverse the lower court.

[00:34:46] Speaker 00:
Thank you very much.

[00:34:46] Speaker 03:
Thank you, counsel.

[00:34:50] Speaker 03:
The Court appreciates the spirited arguments on both sides of the case, and that case shall now be submitted.