Appellate courts, we see, choose what interests them, and how much. Sometimes they surprise the parties and their counsel.
We weren’t all that shocked about the argument in Naffe v. Frey, the free-blogger-speech case involving Patterico, but perhaps the degree of the court’s emphasis on one issue as opposed to the other was a bit surprising. We (the legal team including Ken from Popehat) were ready for it, however.
You’ll understand what I mean if you scan the brief, and then behold the oral argument:
I love my job.
In a published decision that will be significant for public employees who blog, the Ninth Circuit agreed that Mr. Frey didn’t blog as a “state actor” for purposes of Section 1983 just because he’s a county employee. The Court agreed that Naffe had not stated any facts giving rise to a reasonable inference that Patrick was blogging as part of his official responsibilities. “Frey is a county prosecutor whose official responsibilities do not include publicly commenting about conservative politics and current events.” The Court also rejected Naffe’s argument that Patrick’s blogging was related to his work as a county prosecutor because he discussed criminal law issues. Finally, the Court noted that Patrick frequently reminded readers that he blogged and Tweeted in his private capacity, not his official capacity.
Crucially, the Ninth Circuit confirmed that a state employee can talk about the nature of their work without transforming their speech into state action. That’s key for the free speech rights of all public employees. The Court noted “if we were to consider every comment by a state employee to be state action, the constitutional rights of public officers to speak their minds as private citizens would be substantially chilled to the detriment of the ‘marketplace of ideas.'” That’s what we argued on appeal, and Eugene Volokh ably argued in his amicus brief on behalf of the Digital Media Law Project: Naffe’s proposed interpretation of the law would mean that a teacher couldn’t blog about teaching, or a police officer about police work, without transforming their writing into official “state action” subject to civil rights lawsuits. That portion of the Ninth Circuit’s opinion will be useful whenever a state employee is sued under the theory that their private speech should be treated as official action.
However, the Ninth Circuit reversed the trial court’s dismissal of the state claims. At issue was the standard the trial court applied. Having questioned whether Ms. Naffe could prove $75,000 in damages, as required for diversity jurisdiction, the trial court found that she had not proven such damages by a preponderance of the evidence. The Ninth Circuit found that was the wrong standard. Instead, it found, a trial court should only dismiss a case for lack of diversity jurisdiction when it appears to a “legal certainty” that the plaintiff cannot recover at least $75,000. That’s an extremely low standard for Naffe to satisfy, and the court found she satisfied it.