[00:00:00] Speaker 04:
We'll proceed with case number 258021, Cuban B. Gordon.

[00:00:06] Speaker 01:
Good morning.

[00:00:07] Speaker 01:
Brendan Philbin on behalf of the appellant, Dr. Eric Cuban.

[00:00:11] Speaker 01:
And I'd just like to ask to reserve three minutes in rebuttal.

[00:00:16] Speaker 01:
And may it please the court, in February of 2024, Dr. Eric Cuban exercised that sacred right that we hold as Americans by participating in a representative government, by advocating for legislation

[00:00:30] Speaker 01:
under consideration at the Wyoming House of Representatives.

[00:00:34] Speaker 01:
For doing so, Governor Gordon removed Dr. Cuban from the Wyoming Medical Board in violation of his First Amendment rights.

[00:00:43] Speaker 01:
In analyzing this case, the district court aired in two specific areas.

[00:00:48] Speaker 01:
First, Dr. Cuban's email was on a matter of public concern, specifically the debate in the Wyoming legislature about Chloe's law.

[00:00:59] Speaker 01:
Secondly, the district court conducted the Pickering Balancing Test prematurely and found without evidence and based on pure speculation that Dr. Cuban's email would disrupt operation of the medical board.

[00:01:14] Speaker 02:
Counsel, on your first point about a matter of public concern, in our mixed speech cases, what would you say is a discernible line between how much of the speech can be about a matter that may be of public concern versus a

[00:01:29] Speaker 02:
private grievance.

[00:01:31] Speaker 01:
Thank you, Your Honor.

[00:01:32] Speaker 01:
I would point this Court to Morvey-Winwood, where in that case, the speaker, while holding some personal animus towards a fellow officer, used that as to provide perspective to the debate in that case that was in front of City Council regarding a police-involved shooting.

[00:01:51] Speaker 01:
And so here,

[00:01:52] Speaker 01:
And what the court failed to do is to consider the context of Dr. Cuban's speech.

[00:02:00] Speaker 01:
And to provide this court with that context, the Wyoming Medical Society advocates and lobbies for physicians in the state of Wyoming.

[00:02:10] Speaker 01:
So the Wyoming legislature typically hears from them on all sorts of bills that are in front of them.

[00:02:17] Speaker 01:
Because they were not hearing from what the Wyoming Medical Society purported to do, is to represent all doctors, Dr. Cuban felt the need to advocate in his own behalf, which is the quote he used in the email.

[00:02:31] Speaker 01:
And advocacy generally entails talking about your opponent, maybe poking holes in their argument, highlighting their weaknesses and biases.

[00:02:42] Speaker 01:
So if we take the whole email that Dr. Cuban wrote, first,

[00:02:47] Speaker 01:
explaining to the legislature why the opposing position is wrong, because it was biased and infected with some political ideological concerns.

[00:02:59] Speaker 01:
And if we take the whole email and we look at it, we can see in, he provides specific examples of why he believes the bill is a good bill and why it should pass, mainly in Appellate 31, the last half of that.

[00:03:16] Speaker 01:
And after he sets up his opponent, he says, I feel the need to advocate on my own behalf by coming to you directly with this information.

[00:03:24] Speaker 01:
So he was not airing personal grievance or an employment context like in Connick and other cases like McEvoy in the circuit.

[00:03:36] Speaker 01:
He was advocating.

[00:03:37] Speaker 01:
And part of advocating is talking about your opponent and why they're wrong and why they're weak.

[00:03:42] Speaker 04:
Sorry, I apologize.

[00:03:45] Speaker 04:
Ultimately, his grievance seemed to be what was going on on the inside of the medical association, right?

[00:03:55] Speaker 04:
I mean, what was happening there in the medical

[00:03:57] Speaker 04:
and how they came to make or take a position on Chloe's lawn.

[00:04:04] Speaker 04:
And he was very unhappy with the position taken and he was unhappy with leadership for taking that position.

[00:04:10] Speaker 04:
That seems clear from his email.

[00:04:15] Speaker 04:
But why is it ever a matter of public concern when members, because essentially he's speaking as a member of this association now.

[00:04:27] Speaker 04:
I mean, he's a private citizen, but he's saying, I have this information because I'm a member of this professional association, and I don't like what is happening in this association or how they made their recommendation.

[00:04:38] Speaker 04:
And I understand he's concerned about that.

[00:04:42] Speaker 04:
But what makes that a matter of public concern any more than any membership in any professional association, which I don't think there is an association out there in any profession where there isn't strong feelings about positions taken by the association, and yet it happens.

[00:05:01] Speaker 04:
And there's angry members, and yet it happens.

[00:05:04] Speaker 04:
But why is that internal?

[00:05:08] Speaker 04:
dispute, which is understandable and happens, and he has a right to be unhappy about it, but why is that a matter of public concern?

[00:05:18] Speaker 01:
Because it is relevant to the advocacy and the debate because the Wyoming Medical Society is purporting to represent physicians in Wyoming that are members.

[00:05:29] Speaker 04:
And they have a right to do that.

[00:05:31] Speaker 01:
And they do.

[00:05:32] Speaker 04:
The members have given them that right.

[00:05:34] Speaker 01:
Right.

[00:05:36] Speaker 01:
However, if members do not feel that they are being advocated for properly, they should feel free.

[00:05:43] Speaker 04:
Absolutely.

[00:05:44] Speaker 04:
They're free to go forward.

[00:05:45] Speaker 01:
To go and speak.

[00:05:46] Speaker 04:
Right.

[00:05:47] Speaker 04:
And that's what he's done.

[00:05:48] Speaker 01:
Yes.

[00:05:49] Speaker 04:
But that doesn't make his concern about

[00:05:54] Speaker 04:
what's happening within the membership or how the membership arrived at its position that it took a matter of public concern.

[00:06:01] Speaker 04:
Do you see what I'm saying?

[00:06:02] Speaker 04:
Because that's what you're saying is the matter of public concern, that everybody out there needs to know how this association arrived at it and that there's members that don't agree, which would be every case ever in a professional association that's providing information or a recommendation to a legislative body.

[00:06:22] Speaker 04:
There will be members who don't agree.

[00:06:25] Speaker 01:
You're right.

[00:06:26] Speaker 01:
Your Honor, it's our position that Dr. Cuban spoke on a matter of public concern.

[00:06:31] Speaker 01:
And that public concern was the debate surrounding Chloe's law.

[00:06:37] Speaker 04:
And I fear that... OK, I'm misunderstanding them, because I thought he was trying to advise the legislature that they should be concerned about the Medical Association's recommendation.

[00:06:51] Speaker 04:
And the basis for it?

[00:06:53] Speaker 01:
No, Your Honor, the purpose of his email, taken in the whole, I would point to appellate record 31.

[00:07:00] Speaker 01:
From the perspective of a Wyoming doctor who practices medicine at the hospital he was born, I can tell you that this is a very good bill.

[00:07:08] Speaker 01:
I want to advocate on my own behalf for this bill.

[00:07:12] Speaker 01:
That's part of it.

[00:07:16] Speaker 01:
That's part of it.

[00:07:19] Speaker 01:
And in doing so, he is adding context and speaking about the other side.

[00:07:27] Speaker 01:
that if we read this email too narrowly.

[00:07:31] Speaker 04:
Well, when he speaks about the other side, he's talking about his concerns about his organization, his private organization that he's in.

[00:07:38] Speaker 01:
And the opinions that they hold, which are opposite to his.

[00:07:42] Speaker 01:
Right.

[00:07:42] Speaker 01:
And I fear that if we read this email too narrowly, then we will chill the First Amendment ability in a way that dictates how people can advocate.

[00:07:56] Speaker 01:
Because if we say that you can't talk about your opponent and their position.

[00:08:02] Speaker 04:
He's welcome.

[00:08:03] Speaker 04:
He can talk about it.

[00:08:04] Speaker 04:
That's not our issue right now.

[00:08:06] Speaker 04:
The issue is whether this is a matter of what he was talking about or purely his private interest or matters of public concern.

[00:08:17] Speaker 04:
And what part of it, what part of his email makes it a matter of public concern?

[00:08:26] Speaker 04:
My understanding was you were suggesting it was the part where he discusses the association.

[00:08:33] Speaker 01:
No, the public concern in his email is advocating for the passage of Chloe's Law, which the bulk of that advocacy occurs in

[00:08:44] Speaker 01:
the final five paragraphs of his email on Appellate Record 31.

[00:08:48] Speaker 01:
He's arguing the merits of the bill and why it should pass.

[00:08:55] Speaker 01:
And that is the public concern.

[00:08:56] Speaker 04:
That's his private view about the bill, is what you're saying.

[00:09:00] Speaker 01:
Yes.

[00:09:01] Speaker 01:
Yes, Your Honor.

[00:09:02] Speaker 01:
He is speaking in his private capacity, not as a member of a board.

[00:09:08] Speaker 01:
He sent this from his personal email.

[00:09:10] Speaker 01:
Board members have no reason to communicate

[00:09:14] Speaker 04:
with the Wyoming House of Representatives, and he says, I'm writing from, as a perspective of a Wyoming doctor, not as a... He says he's concerned that the Wyoming Medical Society's inaccurate statements to the state's lawmaking body could impact all Wyomingites.

[00:09:32] Speaker 04:
I don't know if I said that right.

[00:09:33] Speaker 04:
So to me, it's pretty clear that what he's complaining about is the internal working of the society.

[00:09:40] Speaker 04:
And the question is, is that a matter of public concern?

[00:09:43] Speaker 01:
I respectfully disagree with the reading of that.

[00:09:46] Speaker 01:
His purpose in writing that statement is to try to cut down the weight that the Wyoming Medical Society holds in this public debate on this legislation, because the Wyoming Medical Society, again, purports to speak for

[00:10:03] Speaker 01:
the doctors of Wyoming.

[00:10:05] Speaker 01:
It's your suggestion.

[00:10:06] Speaker 04:
You would be saying that's a question of fact as to what that meant is what you're saying, right?

[00:10:12] Speaker 01:
Yes.

[00:10:12] Speaker 04:
That we can't be deciding at this point.

[00:10:15] Speaker 04:
I assume that's your position.

[00:10:16] Speaker 04:
It certainly could be taken a different way.

[00:10:20] Speaker 04:
You would agree?

[00:10:23] Speaker 04:
Yes.

[00:10:24] Speaker 02:
Counsel, can I ask you, is the preliminary injunction denial

[00:10:28] Speaker 02:
now moot because final judgment has been entered?

[00:10:32] Speaker 02:
Yes, it's moot.

[00:10:33] Speaker 02:
We can see that point.

[00:10:41] Speaker 01:
If I may move to discuss the third prong of that Pickering balancing test, where the government's interest in efficient operations is balanced against the public employee's right to speak.

[00:10:56] Speaker 01:
And it's because that has to be shown with evidence and not pure speculation.

[00:11:02] Speaker 01:
And it's because of that evidentiary standard that Your Honor wrote last January in Brown v. City of Tulsa that the application of the Pickering Balancing Test will be possible only after the parties have had an opportunity to conduct some discovery.

[00:11:18] Speaker 01:
So the district court here

[00:11:20] Speaker 01:
Like the district court in Brown, in granting here the motion on the pleadings and there the motion to dismiss, it erred by jumping the gun on conducting the balancing test before the parties proceeded to discovery.

[00:11:33] Speaker 01:
And the results of that lay bare.

[00:11:37] Speaker 01:
The speculation about the impact of this on the board starts at the genesis of this case.

[00:11:43] Speaker 01:
If you read the governor's letter on Pellin 33,

[00:11:49] Speaker 01:
I believe your comments on the particular legislation could give doctors a reason to believe that there's bias.

[00:11:56] Speaker 01:
So that speculative language has persisted to this very moment.

[00:12:00] Speaker 01:
And the governor has not provided any evidence to support that speculation that he opened this matter with.

[00:12:10] Speaker 01:
And I note that I'm going into my rebuttal time, so sit down.

[00:12:14] Speaker 01:
Thanks.

[00:12:16] Speaker 04:
Thank you, counsel.

[00:12:33] Speaker 00:
May I please the court, counsel?

[00:12:36] Speaker 00:
My name is Jim Peters and I'm here today on behalf of Governor Mark Gordon in this matter.

[00:12:41] Speaker 00:
This case involves the governor's authority to remove a licensing board member.

[00:12:46] Speaker 00:
When the governor determines that statements that that particular member has made can compromise that member's ability to perform his duties on that particular licensing board without the appearance of bias.

[00:12:59] Speaker 00:
I'd like to focus first off on the third element of the Garcetti Pickering Test, and that's whether the government's interests as an employer outweigh the employee's free speech rights.

[00:13:12] Speaker 00:
So looking at this case, it's whether the government had an adequate justification for treating the employee differently than other members of the public.

[00:13:20] Speaker 00:
So we look at whether statements made by particular members would impede their ability

[00:13:26] Speaker 00:
to perform their duties or interfere with the agents or the operations of the agency.

[00:13:33] Speaker 00:
What we have here is a state's interest asserted by the governor.

[00:13:37] Speaker 00:
That interest is ensuring that licensing board members in Wyoming, in particular on the Board of Medicine, are able to perform their duties without the appearance of bias.

[00:13:48] Speaker 02:
Counsel, can I stop you though and ask you, isn't the real question before us the procedural sequence of this pickering balancing as and when it's employed?

[00:13:56] Speaker 02:
As counsel noted, this court has said the motion for either 12b6 or judgment on the pleadings here that it's generally improper to do pickering balancing because to do that balance you need evidence.

[00:14:11] Speaker 02:
And you may have that evidence and it may be marshaled at some date before the district court.

[00:14:17] Speaker 02:
But why should we deviate from our precedent to say, in this case, that pickering balancing was appropriate at this stage of the procedural history of the case?

[00:14:28] Speaker 00:
Your Honor, in more, this Court said that we need not justify predictions with formal evidentiary showing.

[00:14:36] Speaker 00:
And we do have that evidence in this case, Your Honor.

[00:14:39] Speaker 00:
It's the email from Dr. Cuban.

[00:14:41] Speaker 00:
What we have is an email from a member of the Board of Medicine

[00:14:47] Speaker 00:
who was sent, but the email was sent in his individual capacity, that is criticizing the leadership of the Wyoming Medical Society, a specific doctor, and it can even be interpreted further to be criticizing any member on the left side of the partisan divide.

[00:15:07] Speaker 00:
Really that email contains charged allegations that not only that the Medical Society had a position that was contrary to Dr. Cuban,

[00:15:17] Speaker 00:
But it contained allegations that the leadership, and Dr. Sanderson specifically, ignored and suppressed evidence and information when presenting its position to the Wyoming legislature.

[00:15:31] Speaker 02:
But counsel, pickering balancing, as the second word implies, is a balance between competing interests.

[00:15:38] Speaker 02:
So in referencing the email that Dr. Kubin sent, it may be then that's a value to determine.

[00:15:44] Speaker 02:
what his individual rights are and to engage in that speech, but also it could form the basis for the other side of the scale, which is disruption.

[00:15:53] Speaker 02:
And that's the part where typically it's difficult for court to assess until there is, again, a marshaling of evidence.

[00:16:03] Speaker 02:
And when I look at this case, as I understand it, the plaintiff's attached to the complaint, both the email and the letter from the governor, so that is fair game for us to consider.

[00:16:15] Speaker 02:
Is Governor Gordon's email response enough evidence for us to look at a pickering balancing in terms of weighing what the disruption could be based upon that, the email that he sent?

[00:16:33] Speaker 00:
I believe that it is.

[00:16:34] Speaker 00:
And I believe the district court correctly looked at the complaint and those documents attached to his complaint when it conducted this balancing test.

[00:16:43] Speaker 00:
And it looked at, as it relates to the governor's interest and the state's interest as a whole, is looking at the text of that email and those politically charged allegations against leadership and specific members, whether it was reasonable, whether there was a reasonable prediction that Dr. Cuban could not be impartial in certain matters that would appear before the Board of Medicine.

[00:17:08] Speaker 00:
Specifically, the Board of Medicine is charged with

[00:17:11] Speaker 00:
regulating the practice of medicine in Wyoming.

[00:17:14] Speaker 00:
And that includes adopting rules to implement the practice, issuing advisory opinions, and very importantly, issuing licenses, investigation, and possibly taking disciplinary action against licensees who may come before that.

[00:17:31] Speaker 00:
The leadership of the Wyoming Medical Society are practitioners who are regulated by the Board of Medicine.

[00:17:39] Speaker 00:
Dr. Sanderson,

[00:17:42] Speaker 00:
Dr. Cuban lofted these allegations against, is a practitioner that's related by the Board of Medicine.

[00:17:48] Speaker 00:
It's not unreasonable based on the text of the email for the governor to conclude that should there be a matter with Dr. Sanderson before the board or any of the members of the Wyoming Medical Society leadership that Dr. Cuban may not be able to be impartial in performing his board duties if those matters come up.

[00:18:12] Speaker 00:
And Your Honor, that reasonable prediction is important here.

[00:18:16] Speaker 00:
As this Court is aware, the Court has drawn a line between whether specific evidence is required or not, and sort of looks at timing of the action by the employer, determining whether it falls into the long after category or the soon after category.

[00:18:33] Speaker 00:
And this Court has said that long after, if the action is taken long after,

[00:18:40] Speaker 00:
You must prove actual disruptions based on the speech.

[00:18:44] Speaker 00:
The time frames by which this court has found an employment action to be long after, six months in the case of the Duda case.

[00:18:56] Speaker 00:
But looking at soon after, in the Deshesny case, this court has held that one month after fell under the soon after category.

[00:19:06] Speaker 00:
And looking at the time frame between Dr. Cuban's email and Governor Gordon's removal letter, it was approximately a little bit less than two months.

[00:19:16] Speaker 00:
There's no evidence in the record of when Governor Gordon became aware of the email.

[00:19:21] Speaker 00:
His letter simply says, I have become aware of this email and I'm taking action now.

[00:19:26] Speaker 04:
Wouldn't evidence like that maybe be something you'd need some discovery on in order to do this balancing test?

[00:19:35] Speaker 00:
Your Honor, I don't believe so.

[00:19:37] Speaker 00:
I think even for purposes of the allegation, I think we can look at the time frame between the email and Governor Gordon's decision, which is approximately less than two months, and analyze it under that consideration, just as the district court did.

[00:19:52] Speaker 00:
Looking at that time frame, the district court said the time frame slightly less than two months is much more similar to the one month time frame that this court has held to be soon after.

[00:20:03] Speaker 00:
rather than the six-month time frame.

[00:20:05] Speaker 04:
Somewhere in that continuum.

[00:20:07] Speaker 04:
To me, it just kind of points to this whole issue that Judge Federico has been speaking with you about is, is it really appropriate in a motion to dismiss stage to conduct this balancing test when there could be additional evidence that might be relevant to that test?

[00:20:24] Speaker 00:
Your Honor, we do believe that the motion for judgment on the pleadings was appropriate here, and the District Court is aware that it applies the same

[00:20:31] Speaker 00:
standard as a motion to dismiss under 12b6.

[00:20:34] Speaker 00:
And so we're looking at the factual allegations in the complaint.

[00:20:38] Speaker 00:
But not only did the district court consider just the temporal length of time between the email and the action, the district court even went a little bit further and importantly looked at the nature of the employment with Dr. Cuban's position on the Board of Medicine.

[00:20:56] Speaker 00:
Unlike the traditional employment where employees

[00:21:01] Speaker 00:
are going to work on maybe an eight to five basis or on a regular basis, the Board of Medicine, these are citizen-appointed members on a part-time basis to perform their board duties.

[00:21:13] Speaker 00:
In this case, the opportunity for disruption was much more sporadic than in a traditional employer-employee context where the supervisor and employee might

[00:21:27] Speaker 00:
might be performing their duties on a daily basis or multiple days per week.

[00:21:32] Speaker 00:
That's simply not the case here.

[00:21:34] Speaker 00:
And so not only did the district court properly look at the time frame in concluding that it was soon after, but it looked at sort of the nature of the employment, which differs from many of the other cases in which this court has considered whether the action was long after or soon after.

[00:21:52] Speaker 03:
Counsel, let me ask you about that.

[00:21:54] Speaker 03:
So how, as a practical matter,

[00:21:57] Speaker 03:
Do we know what the nature of the employment is with the very limited record that we have?

[00:22:07] Speaker 00:
Your Honor, the Board of Medicine is a statutorily created entity, and the requirements to hold meetings are set by statute.

[00:22:18] Speaker 03:
And I'm aware of the statutes that bear on that.

[00:22:22] Speaker 03:
But as a practical matter, how it actually plays out

[00:22:26] Speaker 03:
what the actual functioning is of the board and this particular doctor's role on the board.

[00:22:34] Speaker 03:
How do we understand the details of that to the degree that we would need to conduct the balancing?

[00:22:41] Speaker 00:
Your Honor, for purposes of long after, soon after, I don't think that was something that was needed to be considered.

[00:22:50] Speaker 00:
But I think that is an additional consideration that the district court put forth based on

[00:22:57] Speaker 00:
the statutes and rules governing the Board of Medicine and considered in its analysis, and I think the District Court could have simply looked at the time frame between the action, the email and the action, but I think the District Court even went further to look at those duties to determine whether Governor Gordon's prediction of disruption was reasonable or not.

[00:23:21] Speaker 00:
Your Honor.

[00:23:21] Speaker 04:
Can you discuss a public concern analysis?

[00:23:23] Speaker 00:
Absolutely.

[00:23:24] Speaker 00:
Your Honor.

[00:23:27] Speaker 00:
I think you mentioned it at the outset, but really what we have here is an email that raises a number of issues.

[00:23:35] Speaker 00:
And importantly, Governor Gordon's removal action was not based on Dr. Cuban's advocacy for or against a particular piece of legislation.

[00:23:46] Speaker 00:
It was based on those comments that were made related to the Wyoming Medical Society leadership and specific practitioners that are governed

[00:23:56] Speaker 00:
by the Board of Medicine.

[00:23:59] Speaker 00:
Looking at this court's cases on point, courts consider public concern very narrowly.

[00:24:06] Speaker 00:
And really, the Wyoming Medical Society is not a governmental entity.

[00:24:12] Speaker 00:
So there's no allegation or argument that, consistent with this court's cases, that Dr. Cuban was intending to expose official impropriety.

[00:24:23] Speaker 00:
Because those cases all relate to governmental entities.

[00:24:25] Speaker 04:
Clearly not.

[00:24:26] Speaker 04:
But he is suggesting that he's exposing private associations' impropriety or their internal concerns, I guess, to the legislature.

[00:24:43] Speaker 04:
who are public officials who have received a recommendation from this or a position statement from this private organization, as I understand it.

[00:24:56] Speaker 00:
Absolutely, Your Honor.

[00:24:57] Speaker 00:
And I believe that communication, as you mentioned earlier, is really airing of a grievance related to

[00:25:06] Speaker 00:
Dr. Cuban's dispute of how the internal operations of the Wyoming Medical Society exist.

[00:25:13] Speaker 04:
Well, does it make a difference that he's trying to tell the legislature, you need to know this, because the Wyoming Medical Society has a lot of respect, I presume.

[00:25:25] Speaker 04:
And he knows that the legislature respects their position, presumably.

[00:25:30] Speaker 04:
And so he's saying, you need to know what's behind the scenes.

[00:25:37] Speaker 04:
before you act, essentially.

[00:25:41] Speaker 00:
Your Honor, I don't believe that rises to the level of a public concern based on this Court's precedent.

[00:25:46] Speaker 04:
As a matter of law?

[00:25:48] Speaker 00:
Yes, Your Honor.

[00:25:50] Speaker 00:
As this Court has said before, matters of public concern are matters of specific importance to the community.

[00:25:58] Speaker 00:
While Dr. Cuban's frustrations with the internal policies and procedures of the Wyoming Medical Society may be important to members

[00:26:07] Speaker 00:
of the Wyoming Medical Society, it certainly doesn't rise to the level of a public concern that would be important to the community as a whole.

[00:26:15] Speaker 04:
Would it be possible that there could be an allegation, though, of something more significant, fraud or some sort of, I don't know, criminal activity, something that would perhaps make a private association's internal workings a matter of public concern?

[00:26:36] Speaker 00:
Your Honor, I have a hard time envisioning a scenario that would rise to the level of public concern when a dispute or a grievance relates solely to the internal workings of a private organization, which Dr. Cuban has recognized.

[00:26:51] Speaker 00:
The Wyoming Medical Society is a private organization.

[00:26:53] Speaker 00:
There has been no allegation that it's a public organization or any public function of that organization.

[00:27:02] Speaker 00:
Your Honor, I see my time is up, and so if there are no further questions, I'd respectfully request that this Court affirm the District Court's decision, and that Dr. Gordon, or my apologies, that Governor Gordon did not violate Dr. Cuban's constitutionally protected rights in removal.

[00:27:20] Speaker 00:
Thank you.

[00:27:20] Speaker 04:
Thank you, Counsel.

[00:27:21] Speaker 04:
Rebuttal?

[00:27:30] Speaker 01:
Thank you, Your Honor.

[00:27:32] Speaker 01:
the governor's point about this analysis of when this happened short after or long after, I just want to remind the court that whether it happened short after or long after does not relieve the burden of the government to show that inefficiency would be created by the speech.

[00:27:49] Speaker 01:
And to the point that public concern is important to the community, Chloe's law in the debate at the Wyoming House of Representatives is vital to the community and vital to

[00:28:00] Speaker 01:
are representative of government.

[00:28:04] Speaker 04:
But he was terminated from the board not because of his comments about Chloe's law, but because of his comments about the association and certain doctors within that.

[00:28:21] Speaker 01:
It's our position that he was terminated for speaking on the public concern of Chloe's law.

[00:28:29] Speaker 01:
The Wyoming Medical Society's position on Chloe's law is certainly wrapped up in that debate, but his primary purpose in writing the email to the legislature and the governor's reasons for firing him, based on the very limited record we have, is that he was fired for speaking

[00:28:51] Speaker 01:
on that matter of public concern.

[00:28:53] Speaker 04:
So do you concede though that if that was the purpose of his letter to reveal the inner workings of the association and his concerns about it, that that would not have been a matter of public concern?

[00:29:09] Speaker 01:
If he was writing solely about the Wyoming Medical Society, then we would have a question of whether it is a public concern or not.

[00:29:20] Speaker 01:
Again, in advocating for any position, it's best to address your opponent's position and what they stand for and why their position may be weak or polluted by whatever.

[00:29:35] Speaker 01:
And in the course of speaking on a public concern of the law and advocating for that, he addressed the issues with the opponent who does carry heavy weight.

[00:29:46] Speaker 01:
with the Wyoming legislature.

[00:29:47] Speaker 01:
This is the lobbying body for Wyoming physicians.

[00:29:51] Speaker 01:
And they're coming in with all that weight to support this bill.

[00:29:55] Speaker 01:
And Dr. Cuban is speaking to that.

[00:29:58] Speaker 01:
So with that, in accordance with this court's decision in Brown v. City of Tulsa, we ask that this court vacate and remand this matter to the district court.

[00:30:07] Speaker 01:
And I thank this court for your time.

[00:30:09] Speaker 04:
Thank you very much.

[00:30:10] Speaker 04:
Thank you both counsel and the case will be submitted and counsel are excused.

[00:30:15] Speaker 04:
Thank you.